Raunak Ram and Others vs Pishori Singh and Others

M.S. Liberhan, J.—Mahesh Kumar, respondent, took the demised premises on rent from landlord Pishori Singh in the name of firm M/s Jainco describing himself as the proprietor of the firm at a rent at the rate of Rs. 30/- per mensem and rent note was; executed in favour of the landlord by Mahesh Kumar as proprietor of Jainco Motors

The landlord sought the ejectment on the grounds of subletting of demised premises and non-payment of rent.

The claim of the landlord was denied. It was averred that the demised premises were taken, on rent by M/s Jainco Motors which is a partnership firm and the respondents were the partners of the firm. Mahesh Kumar was one of the partners. The rent was tendered by Raunak Ram.

The Rent Controller found that there was no subletting as the demised premises were, taken on rent by Jainco Motors which is a firm, of the respondents, Retiring of, Mahesh Kumar from the partnership did not amount to subletting particularly when the other respondents who were earlier partners, continued to be partners and Were closely related being brothers and father of Mahesh Kumar. It was held that since the tender was made by one of the partners of the firm, it was a valid tender. Ejectment was declined.

The Appellate Authority on reappraisal of the evidence came to the conclusion that the subletting stood proved as the demised premises were leased out to Mahesh Kumar being the sole proprietor of Jainco Motor and he is admittedly not a partner of the firm which was in fact in possession of the demised premises. It amounted to parting with the possession and subletting. It was further found that as the rent was not tendered by Mahesh Kumar, the tenant, the tender was invalid. Resultantly, the ejectment order was passed.

The learned counsel for the revision petitioner-tenant contends that the demised premises were taken on lease by M/s Jainco Motors vide rent note Exhibit A-1 on 16-4-1968. In fact Jainco Motors was a partnership firm having came into being vide partnership deed Exhibit RW 4/2 dated 28-1-1968. Father, brothers of Mahesh Kumar were the partners in the said firm. In fact the premises were taken on lease by the firm and Mahesh Kumar acted on behalf of the firm. The using of suffix propritor in the rent note is only misdescription or at the most an erroneus description On the basis of this description, the learned Appellate Authority has erroneously found that the premises in dispute were leased out to Mahesh Kumar.

The counsel for the respondent controverts the submissions made and contends that from the perusal of Exhibit A-1 read with the statement of Petition Writer and Mahesh Kumar, it is obvious that the demised premises were taken on rent by Mahesh Kumar as sole proprietor of Jainco Motors. The fact regarding the partnership was never disclosed to the landlord nor the premises were ever let out to the partnership firm. The partnership deed Exhibit A-1 has been relied upon by the parties. The translation of the relevant portion reads as under:-

"That Jainco Motors, Ambala Cantt. through Mahesh Kumar son of Raunak Ram son of Mukandi Lal, resident of Lakar Bazar, Ambala Cantt, in the capacity of a proprietor of M/s Jainco Motors, Ambala Cantt, taken on lease stall No. 171, situated in Rai Market, Ambala Cantt."

The petition writer was examined as A.W. 1 to prove the document. He categorically stated in cross-examination that Mahesh Kumar took the shop in dispute in the capacity of a proprietor of Jainco Motors. Mahesh Kumar was examined as R W. 1. He had the audacity to say in the face of the rent note that he took the demised premises on behalf of the firm as partner and signed it as partner. Yet he has not attepmted to explain as to why he has described himself to be the proprietor of the firm in the rent note. Even otherwise, no account books of the firm were produced in Court in order to show that it was the partnership firm which was in fact doing the business and the shop was taken on rent by the partnership firm. Taking into consideration the totality of, circumstances I am of the view that the premises in dispute were in fact taken by Mahesh Kumar as the sole'' proprietor of Jainco Motors. Otherwise also, the lower appellate Court after appreciating the evidence oral as well as documentary for the reasons recorded came to the conclusion that the demised premises in fact were taken by Mahesh Kumar as the sole proprietor of Jainco Motors. No impropriety or illegality has been pointed out in the said findings. Accordingly, I affirm the findings of the lower appellate Court.

The premises in dispute were taken by Mahesh Kumar and undisputedly the premises are in possession of the firm constituted of the respondents as partners except Mahesh Kumar who in fact took the premises on rent. It is not the case of the respondents that they are in possession of the demised premises as licensee or in any other capacity. The respondents having failed to prove their direct tenancy, it would be reasonable to infer that they are the sub-tenants and the original tenant has parted with his possession. It was for them to prove that he has not parted with the possession which has not been done.

It is not disputed during the course of arguments that the rent was not tendered by Mahesh Kumar. Tender by any other person on behalf of Mahesh Kumar will not be a valid tender. Therefore, I affirm the finding of the lower appellate Court that there was no valid tender.

In view of the observations made above, I find no force in the revision petition. Accordingly the same is dismissed with no order as to costs. Since it is a business premises, the ejegtment order shall not be executed for three months from today provided the arrears of rent are paid within three weeks from today and an undertaking is filed that on or before the expiry of three months, vacant possession shall be delivered to the landlord.