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Judgment
S.C. Dharmadhikari, J.—This writ petition under Articles 226 and 227 of the Constitution of India, challenges an order of the Rent Controller, Panaji dated 12/9/2008 in case No.Rent/ADC/1/97, and that of the Administrative Tribunal, Goa in Eviction Appeal No. 34/3008 dated 10/2/2010. At the outset, it must be clarified that I have heard the learned Counsel appearing for the parties on the basis that the order of eviction passed by the Rent Controller and confirmed by the Appellate Tribunal can be sustained on the ground of sub-letting of the suit premises. The requirement of the wife of the landlord of the suit premises because of her medical condition is concerned, that ground does not survive as she expired.
Respondents No.1 and 2 had filed an eviction application being case No. Rent/ADC/1/97 against the petitioners herein on the plea of their ownership of the suit premises which is a house/bungalow. It consists of a ground and two upper floors. It is situated within the limits of Panaji Municipal Council. After description of the suit property, what has been referred to in the eviction application is that in the year 1975, petitioners no.1 and 2 approached the owners/ respondents no.1 and 2 herein with a request to allow them to use the suit property for a period of three years on payment of rent. By a Lease Agreement dated 7/2/1975, the suit property was let out for a period of three years. After referring to the various clauses of the lease agreement and particularly prohibition against sub-letting of the suit property, it has been alleged that the lease agreement refers to the fact that the premises shall be used strictly for the purpose of running business of petitioners No.1 and 2 under the name and style "LA VISTA LODGE". It is not necessary to refer to the ground of default in payment of rent and bonafide need, because, as observed above, it is only the ground of sub-letting which is relevant. As far as that ground is concerned, what has been alleged in the application is that petitioners No.1 and 2 herein have violated the terms and conditions of the lease agreement dated 7th February, 1975 by sub-letting the leased premises to petitioner No.3. Petitioner No.3 was the original respondent no. 3. The sub-letting was allowed from February, 1996. In para 14 of the application, this is what is alleged :
The Applicants state that the Applicant No.1 received a letter dated 16-03-1996 from a ''well wisher'' in which it was disclosed that the Respondents Nos.1 and 2 had sublet the suit premises to some third person namely Respondent No.3. Thereafter, the Applicant No.1 inquired about this fact and it was confirmed that the Respondents Nos.1 and 2 had sub-let the suit house to the Respondent No.3. Therefore, on 17-05-1996, the Applicant No.1 met said Mr. Norman Azavedo, Respondent No.3 at his residence who disclosed to the Applicants that he has entered into an agreement with the Respondents Nos. 1 and 2, under which the suit house has been sub-let to the Respondent No.3 on monthly rent of Rs.10,000.00 and on payment of security of Rs.60,000.00. The Applicants brought to the notice of the said Mr. Azavedo that under the lease agreement the Respondents Nos. 1 and 2 are not entitled to sublet or transfer their rights in favour of any third person and any act done by the Respondents Nos. 1 and 2 is in violation of the said Lease Deed.
Thereafter, it is stated by notice dated 6th May, 1996, respondents no.1 and 2 called upon petitioners No.1 and 2 before me to hand over vacant and peaceful possession of the suit premises as they had sub-let the same in violation of the conditions in the lease agreement. By a reply dated 28th May, 1996, petitioners No.1 and 2 raised a defence that they have not sub-let the premises and that they are statutory tenants in respect of the suit property and it is used for commercial purposes. Correspondence in that behalf continued and it is then alleged that petitioners No.1 and 2 have indicated that petitioner No.3 is running the business and the persons who are in possession are not the Manager and Staff working in the hotel, but it is the petitioner No.3 who is running the business. In such circumstances, denying all allegations and referring to a letter dated 13.6.1996 it was alleged that the premises have been parted with and that the petitioner No.3 is in exclusive possession of the same.
Since in para 20 of the application a reference is made to the letter dated 13.6.1996 and the same is on record of the Courts below, the contents thereof are reproduced hereinbelow for ready reference.
From : Norman Azavedo, St.Francis Colony, Greenfield, Santa Cruz. Date : 13.6.96
To, Mr. Durganand R. Sawardekar, "Datta Krupa" Durganand Nagar, Sanvordem, Curchorem.
Dear Sir,
Ref : Your letter No.DRS/F-14A/392/96 dated 3.6.1996
I am in receipt of your above mentioned letter and I am replying to you accordingly.
I have not entered into any agreement of sub-letting or lease of the house "La Vista Lodge" with Mr. Eustaquio Dias and Mr. Venceslau Gonsalves or for renting the lodge.
I am not been rented the above said house at the rate of Rs.10,000/- per month and nor I have deposited advance rent of Rs.60,000/- with the above said person.
I have been inducted as a business Manager by the above referred persons in their establishment with a fixed responsibility of providing minimum turn over and in which capacity I am connected with the above mentioned persons and nothing else.
I hope the information given above suffices your interests.
Yours faithfully, (Sd/-) (NORMAN AZAVEDO)
Copy for information to : 1. Mr. Eustaquio Dias. 2. Mr. Venceslau Gonsalves
It has been also clearly alleged in the application that petitioners No.1 and 2 have no control over the business conducted in the premises and it is totally controlled by petitioner No.3 who has even carried out renovation work. Alleging thus and contending that there was no consent to the acts of the petitioners No.1 and 2, that the instant application for eviction came to be made on 27.1.1997.
As far as written statement is concerned, it appears that there was a combined written statement filed by all the petitioners who have denied the fact of sub-letting and contended that there was a partnership deed dated 24.4.1995 between petitioners No.1 and 2 and petitioner No.3 before me, wherein petitioner No.3 was inducted into the partnership "La-Vista Lodge" and in the said partnership it was agreed that all would be working partners and that petitioners No.1 and 2 would each get a remuneration of Rs.60,000/- per annum, while petitioner No.3 would get fixed remuneration, but from the balance amount available after deducting the sums he would get 90% in the ratio, as set out in para 28 of the written statement. It was stated that in the course of working of the partnership, petitioner No. 3 was allotted the marketing of the business and was entrusted with the management of the marketing of the business. Thus, denying that there was any violation of the terms and conditions of the lease deed and that there was any sub-letting, it was prayed that the eviction application be dismissed.
The Rent Controller then framed the necessary points and parties led evidence before him. The Rent Controller, by the impugned Judgment and Order dated 12th September, 2008, held that the landlords have proved their case of sub-letting and their personal baonafide requirement to the suit premises and, therefore, directed that the petitioners be evicted from the suit premises and time was stipulated in that behalf. This finding was rendered on the appreciation of the oral and documentary evidence and in relation to sub-letting what the Rent Controller observed was that petitioners No.1 and 2/original tenants entered the witness box, but did not allow their cross examination to be completed. Once they left the witness box in such a manner, then their version is not worthy of being relied upon. As far as petitioner No.3 is concerned, petitioner No.3 was confronted with the contents of letter dated 13.6.1996, but he maintained that he has not been inducted in the premises in any other capacity, but as a partner of the existing firm. The firm was reconstituted by his induction with effect from 24.4.1995. However, the partnership not being registered, the Rent Controller did not exhibit the deed. But the Rent Controller referred to the deposition of petitioner No.3/original respondent No.3 and his cross examination and concluded that the attempt to demonstrate that there was reconstitution of the existing partnership by induction of petitioner No.3, is not established and proved. In fact the transactions and the documents appear to be an attempt to get over the contents of the letter dated 13.6.1996. The evidence being directly contrary to the contents of this letter, that cannot be accepted and, therefore, he ordered eviction, inter alia, on the ground of sub- letting.
It was this order which was challenged by the petitioners in appeal before the Administrative Tribunal and the Administrative Tribunal on 10/2/2010, was pleased to dismiss their appeal.
Aggrieved by these concurrent orders, the present petition has been filed.
Learned Counsel appearing for the petitioners submitted that the impugned orders are wholly erroneous and perverse. He submits that the contents of the eviction application and the lease agreement would go to show that petitioners No.1 and 2 were shown therein as partners of La Vista Lodge. The lease was, thus, in favour of the partnership. Further, the contents of the application, so also the deposition of the landlord, would show that the admitted position is that the lease was given to the partnership, namely La Vista Lodge. He relies upon the statements in the deposition to the effect that the lease was in the name of partnership of petitioners No.1 and 2 to run therein a lodging house.
He submits that once this was an admitted position, then, the Courts below have committed a serious error in not allowing the petitioners to substantiate the plea that petitioner No.3 was inducted as a partner in the existing partnership business and, therefore, the partnership deed dated 24.4.1995 ought to have been exhibited and read in evidence. By not exhibiting that document, a serious error has been committed which is apparent from the face of the record. It is submitted that there is difference between a document not being exhibited in evidence because it is not registered and a deed of partnership being not registered and therefore, incapable of being relied upon. He submits that the partnership can be oral as well. Once, there is an evidence on record to indicate that in terms of this deed of partnership business was carried on, income tax returns were filed and even the income tax Department official was summoned to produce the necessary documents, then the finding rendered that the petitioner no.3 has been inducted not as a partner, but as a business manager, and therefore, a complete stranger to the premises, is contrary to the evidence and can safely be termed as perverse. He submits that nowhere in the impugned judgments it has been held that exclusive possession of the suit premises has been parted with by petitioners no.1 and 2 in favour of petitioner no.3. Once the essential ingredients of sub-letting, namely, the parting of possession of the premises exclusively being not proved, then all the more the impugned Judgments cannot be sustained.
Reliance is placed upon a Judgment of the Hon''ble Supreme Court in the case of Amar Nath Agarwalla Vs. Dhillon Transport Agency, . Reliance is also placed on a Judgment of the Hon''ble Supreme Court in the case of Madras Bangalore Transport Co. (West) Vs. Inder Singh and Others, . On account of the afore mentioned submissions, it is contended that the impugned orders be quashed and set aside.
On the other hand, learned Senior Counsel appearing for the contesting respondent No.3 contended that the petitioners have not demonstrated as to how the impugned orders can be termed as perverse or vitiated by error apparent on the face of the record. It is submitted that the impugned orders are in accordance with law and that the findings are based on oral and documentary evidence on record. Once they are so based and are in consonance with, this is an attempt by the petitioners, by filing this petition, for reappreciation and and reappraisal of the material on record, which is impermissible in limited jurisdiction of this Court under Articles 226 and 227 of the Constitution. Further, it is submitted that the conduct of the petitioners dis-entitles them from invoking the discretionary and equitable jurisdiction of this Court inasmuch as petitioners No.1 and 2 did not allow their cross examination to be completed. Once their conduct was such, then an adverse inference has been rightly drawn against them. The attempt to support their case is by a person who is inducted exclusively in possession and is sub-lessee/sub-tenant. Once he makes such an attempt and his evidence has been found to be not only contradictory to the written statement, but also false, then, mere non-exhibition of the partnership deed is not fatal, because no prejudice is caused to the parties. In any event, the learned Rent Controller has referred to the nature of the business that is being propounded and has also held that the version of the existing partnership being continued by induction of petitioner No.3, is not proved. This is nothing but an attempt to continue to hold onto the premises once the act is found to be illegal. In these circumstances, no interference is permissible and the petition be dismissed.
Reliance is placed by the learned Senior Counsel on the decision of the Hon''ble Supreme Court in the case of Ms. Celina Coelho Pereira and Others Vs. Ulhas Mahabaleshwar Kholkar and Others, . It is contended that this decision is on all fours and is rendered analysing and interpreting the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968. Therefore, the principles laid down would have to be applied in deciding this case.
With the assistance of the learned Counsel appearing for both sides, I have perused the petition, and annexures thereto, including the impugned orders. Since I am concerned with ground of sub-letting, in my view, without being influenced by the orders of eviction of the petitioners from the suit premises on other grounds, I need to refer to only the material in that behalf.
If a copy of the deposition of petitioner no.3 is perused, it is clear that he filed his affidavit-in-evidence which was taken as an affidavit in lieu of examination-in-chief. He stated that he knows petitioners No.1 and 2 as partners of M/s. La Vista Lodge. He categorically states that he was admitted as a partner in the year 1995 and since then he is actively looking after and managing the business affairs along with other partners. He places reliance on the terms of the deed and states that income tax returns are filed in the name of M/s. La Vista Lodge. He states that he was inducted in the partnership with the intention that he should market the business of the partnership. He asserts that by his induction, the terms and conditions of the lease in favour of petitioners No.1 and 2 have not been violated, nor there is any sublease, or subletting of the suit premises. This affidavit is filed on 9.2.2007. While tendering the affidavit, an attempt was made to tender the partnership deed dated 24.4.1995. An objection was raised and, therefore, the partnership deed was not allowed to be exhibited. He has also produced a certified copy of the income tax returns for the years 1996-97, 1997-98, 1998-2000 onwards.
In the cross examination, he states that presently he is running a pharmacy by name Life Care Medicines at Calangute, Bardez, Goa. His pharmacy business was started in the year 1992. He was also running a restaurant. He stated that he knew both petitioners no.1 and 2. But, it is stated that prior to the filing of the eviction application, respondent No.1 before me had issued notice to petitioner No.3, alleging that suit premises are sub-let to him by petitioners No.1 and 2. Firstly he states that he did not remember if he had replied to the letter, but thereafter, admits his reply to the letter dated 13.6.1996, contents of which are reproduced herein above. He asserts that he was inducted as a partner on 24.4.1995. However, he states that in the reply dated 13.6.1996, which is marked as Exhibit AW.7, he has stated that he is manager of the lodge. In reply he has not stated that he is a partner of the partnership dated 24.4.1995. He admits that the position set out in the letter dated 13.6.1996 is a correct statement. To a suggestion that the partnership deed is a sham and bugs document, he denies the same. However, while stating that he has seen the copy of the partnership deed, he admits that he does not remember the date the partnership deed was registered. He states that he sees the accounts of the firm. However, he does not have copies. He states that the firm was not doing any profit when he was inducted as a partner. Income Tax returns were not filed in the year 1995. Returns were filed after some delay. He states that the date of filing of the returns is there on the copies produced by him. It is true according to him that on 17.2.1998 for the fist time the income tax returns were filed for the year 1996-97. He states that it is true that the returns were filed after filing of the eviction case.
To my mind, when he was extensively cross examined on the point of induction in the property of the partnership business of a lodge, I see no substance in the contention of the learned Counsel for the petitioners that non-exhibition of the deed has prejudiced the petitioners in any manner. Non-exhibition of the deed, apart from extensive cross examination of original respondent No.3/petitioner No.3, would show that he was not able to throw any light on the nature of the business of the partnership and the filing of the income tax returns. Petitioner No.3 does not even remember as to how many employees were there, their names and what are their salaries. It is very clear from his deposition that he has been inducted by petitioners No.1 and 2 exclusively in the suit premises. They have not inducted him in his capacity as a partner of the existing partnership firm. This finding is consistent with the deposition of petitioner No.3. It is his version alone which is relevant because petitioners No.1 and 2 have not allowed their cross examination to be completed. Once the nature of the admissions are seen, the petitioner No. 3 who is even admitting that the income tax along with the balance sheet papers are not signed by him, then, all the more it is proper to hold that the version of his being inducted as a partner has been put forward merely to get over the contents of the letter dated 13.6.1996. If this was not the case he would not have stated that he is unaware of the activities of petitioners No.1 and 2 in the year 1995. He also states that petitioner No.2 was doing his tailoring business and continues to do the same. He says that he is actively looking after and maintaining the business, but that was for partnership alone. However, his deposition read as a whole, would indicate that he was unable to point out anything with regard to the affairs of the partnership, including the income therefrom. In such circumstances, I am of the view that the reliance placed by the Courts below on the contents of the letter dated 13.6.1996 and the conclusion that the deposition is at variance therewith cannot be said to be perverse or vitiated by non-application of mind or any error apparent on the face of the record. Thus, even if the deed was exhibited, the conclusion could not have been any different. It is clear that all ingredients of sub-letting are proved.
There is no merit in the submission that the Courts below have not rendered the finding that exclusive possession of the premises in question was not handed over by petitioners No.1 and 2 to petitioner No.3. The materials referred to by me hereinabove clearly show that petitioner No.3 never disputed that he was in possession of the suit premises and actively and virtually alone maintaining the affairs. In these circumstances and when the Courts below have held that the requirement stipulated by Section 22(2)(f) with regard to the ingredients of sub-letting have been satisfied, then I am not in agreement with the learned Counsel for the petitioners that this is not a case of sub-letting of the premises. The Courts below have rightly concluded that a careful examination of pleadings and evidence would show that the landlords have discharged their initial burden and it was for the petitioners to have demonstrated as to how in the teeth of the contents of the letter dated 13.6.1996 can petitioner no.3 claim to be in exclusive possession is not as sub-tenant or the sub-lessee, but as partner of the existing partnership business which came to be reconstituted by deed dated 24.4.1995. Once that was not proved, then the finding that the premises have been sub-let cannot be faulted.
In this context, reliance is placed by learned senior Counsel for the contesting respondent no.3 on the a decision of the Hon''ble Supreme Court in the case of Celina Coelho Pereira (Ms.) and ors., vs. Ulhas Mahabaleshwar Kholkar and others (supra), is apposite. In this decision legal position has been summarized and it has been categorically held by the Supreme Court that inducting a partner or partners in the business or profession by a tenant, by itself, does not amount to sub-letting. But, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the Court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. The existence of the deed of partnership between the tenant and the alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross examination for making out a case of sub-letting or parting with possession of the tenanted premises. Precisely, these tests have been applied by the Courts below. They have rightly held that the initial burden of proving sub-letting is on the landlord, but once he is able to establish that a third party is in exclusive possession of the premises and that the tenant has no legal possession of the tenanted premises, the onus shifts on the tenant to prove that the nature of occupation of the third party is not that of a sub-tenant or that they have retained the control over the tenanted premises.
Once, these tests have been applied, I am not in agreement with the learned Counsel appearing for the petitioners that the impugned Judgments are erroneous in law.
The reliance by the learned Counsel for the petitioners on the decisions of the Supreme Court rendered earlier is totally misplaced. In the first decision in the case of Madras Bangalore Transport Company (West) vs. Inder Singh, (supra), the finding of fact by the Courts below was that the shop was let out originally to three partners; that the partnership firm was always in possession of the premises and that one Caravan Goods Carrier Private Limited, whose Directors were partners of the firm, was in truth and reality no other than the firm itself. The partnership firm and the limited company were not distinct and separate legal entities and, therefore, there was no subletting. It is in this context that the Supreme Court held by placing reliance on the decision in the case of Murli Dhar V. Chuni Lal, 1970 Ren. CJ 922 that once the occupation by a firm is an occupation by its partners and they have commenced the partnership and therefore, the occupation is by the firm itself and no stranger is inducted so as to conclude that there was sub-letting. It is in this context that reliance was placed on the earlier decision and in para 8 of the said decision, this is what is held.
As mentioned by us earlier, the Madras-Bangalore Transport Company (West) continued to be in occupation of the premises even after the Caravan Goods Carrier Private Limited came in. They never effaced themselves. The firm allowed Caravan Goods Carrier Private Limited Company, to function from the same premises but Caravan Goods Carrier Private Limited though a separate legal entity, was in fact a creature of the partners of Madras- Bangalore Transport Company (West) and was the very image of the firm. The Limited Company and the partnership firm were two only in the name but one for practical purposes. There was substantial identity between the limited company and the partnership firm. We do not think that there was any sub-letting, assignment or parting with possession of the premises by Madra Bangalore Transport Company (West) to Caravan Goods Carrier Private Limited so as to attract S.14(1)(b) of the Delhi Rent Control Act. In the result the appeal is allowed with costs.
This decision is obviously distinguishable on facts. Once the firm was stated to be in legal control and never parted with the possession, but the limited company was there as an agent, then this was not a case of sub-letting, assignment or parting with the possession of the premises. The limited company and the partnership firm were two only in name, but one for practical purposes.
The other decision relied upon is in the case of Amar Nath Agarwalla Vs. Dhillon Transport Agency, . There also it was held that Dhillon Transport Quick
Service and Dhillon Roadways Corporation were inducted without the consent, in writing, of the landlord. It was proved that Dhillon Transport Agency, a partnership firm was originally a tenant. The partnership had four partners who carried on business in the name and style of Dhillon Transport Agency. Since disputes and differences arose amongst the partners, a suit was filed in the Court of the first Subordinate Judge at Patna and all matters were settled by compromise. The firm was dissolved and one of the partners was given all the assets of the firm and he formed another firm with himself as one of the partners. Therefore, the argument was that unless the tenancy was transferred to a third party, it was not amounting to subletting. The defendant in that suit asserted that there was no subletting since one of the partners continued to occupy the premises having legal possession thereof. It is in this factual background that two questions of law in para 6 of the judgment had been framed and reliance was placed on Murli Dhar V. Chuni Lal once again. If after dissolution of the firm all rights of the tenant firm including tenancy had been transferred to one of the partners who had continued as owner of the firm in occupation, then obviously, the Supreme Court concluded that there was no sub-letting.
Such is not the case before me. Once it was found that petitioners No.1 and 2 have not retained the use and control over the tenanted premises, but have parted with possession exclusively in favour of petitioner No.3 and, therefore, a device of execution of the partnership deed dated 24.4.1995 is nothing but a cloak or covering up for concealing the real transaction, then, it is inevitable that the allegation of subletting stands proved. In these circumstances, even this decision is of no assistance to the learned Counsel appearing for the petitioners.
As a result of the above discussion, the writ petition fails and it is dismissed. No costs. At this stage, learned Counsel appearing for the petitioners prays that the execution of the decree for eviction be stayed, so as to enable the petitioners to challenge this order. This request is opposed. Having regard to the facts and circumstances of this case, I am of the opinion that a conditional stay of the order of eviction for a period of four weeks can be granted. Accordingly, the following order:-
a) on the condition that the petitioners file an undertaking in this Court, within a period of 10 days from today stating that they will not create third party rights or part with possession of the suit premises;
b) that they will hand over vacant and peaceful possession thereof in case they do not succeed in their challenge to the order and in case they are unable to obtain any ad interim or interim order within a period of four weeks; and
c) that they would continue to pay the taxes and outgoings in respect of the suit premises, and the order of eviction should not be executed and enforced against them for the period stated above. If no such undertaking is furnished, the order will become operative.