Lsp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1288 of 1992
Shri Shyam Dattatraya Thakur ...Petitioner
V/s.
Smt. Gajarabai Mohanlal Rathod
since deceased by her legal heirs
Harish Mohanlal Rathod & ors. ...Respondents
Mr. V.B.Rajure for the petitioner.
Mr. S.N.Chandrachood for respondent no.1.
CORAM : A.M.KHANWILKAR,J.
DATED : 25TH FEBRUARY, 2009
JUDGMENT
. This Writ Petition under Article 227 of the
Constitution of India takes exception to the Judgment
and decree passed by the IVth Additional District Judge,
Pune dated 13th December, 1991 in Civil Appeal No.
845/1988 whereby the Appeal preferred by the
Respondent-tenant was allowed and the suit for
possession filed by the Petitioner-landlord came to be
dismissed. The Petitioner had filed Suit for possession
amongst others on the ground of bonafide and reasonable
requirement for personal use and occupation of the suit
premises, arrears of rent and unlawful subletting. The
Trial Court decreed the suit in favour of the
Petitioner-landlord on 29th July, 1988 accepting the two
grounds pressed into service for eviction of the
Respondent-tenant, namely, bonafide requirement and
unlawful subletting. Against the said decision, the
::: Downloaded on – 09/06/2013 14:22:19 :::
2
Respondent-tenant carried the matter in Appeal before
the District Judge who in turn allowed the Appeal filed
by the tenant and dismissed the suit for possession
filed by the Petitioner-landlord. This decision is
subject matter of challenge in the present Writ
Petition.
2. During the course of arguments Counsel for the
Petitioner stated on instructions that the landlord was
not pressing ig ground of reasonable and bonafide
requirement of suit premises and would proceed in the
matter only in relation to the ground of unlawful
subletting. In the circumstances, I am examining the
matter only in the context of ground of unlawful
subletting. For the nature of order that I propose to
pass, it will not be necessary to advert to all the
events that led to the filing of the suit for
possession.
3. Suffice it to observe that the plaintiff- landlord
claims that husband of defendant no.1 was the tenant in
respect of suit premises and after his demise defendant
no.1 not only changed the business which was conducted
in the suit premises and started using the premises for
some other business, but also allowed the third party to
conduct that business from the suit premises on the
specious plea that the said business was conducted in
::: Downloaded on – 09/06/2013 14:22:19 :::
3
the name and style of Chetna Enterprises, a Partnership
Firm of defendants 1 to 5 as partners thereof.
4. It is matter of record that after institution of
suit, injunction order was passed against defendant no.1
not to create third party right, title or interest in
the suit premises. It is the case of the plaintiff that
notwithstanding the said injunction, defendant no.1
inducted defendants 2 to 5 in the garb that they are the
Partners of ig Chetna Enterprises of which defendant no.1
was also one of the Partner. In this background, the
plaintiff amended the plaint and asserted that defendant
no.1 has unlawfully sublet the suit premises to
defendants 2 to 5. The parties went for trial in
respect of the said allegation of the
plaintiff-landlord. The Trial Court amongst others, in
Paragraph 11, dealt with this aspect of the matter in
extenso. The Trial Court referred to relevant evidence
produced on record. In the first place, the Trial Court
proceeded to hold that the documents such as Partnership
Deed, Certificate issued by Bank of India and Shop Act
Licence were not proved by the defendants. The Trial
Court then examined other evidence and considered the
same in Paragraph 11 of its Judgment to conclude that
defendant no.1 had inducted defendants 2 to 5 in the
suit premises and thus the suit premises were unlawfully
sublet to the said defendants by defendant no.1. It is
::: Downloaded on – 09/06/2013 14:22:19 :::
4
on that basis the Trial Court decreed the suit in favour
of the Petitioner-plaintiff by Judgment and order dated
29th July, 1988.
5. In Appeal, at the instance of Respondent-tenant,
however, the Appellate Court dealt with the said ground
in Paragraph 10 of the impugned Judgment. In the first
place, the Appellate Court proceeded to record that the
Trial Court has given undue weightage to the decision of
High Court instead
ig of Supreme Court Judgment on the
point directly applicable to the fact situation of the
present case. It then proceeded to hold that the
Partnership Deed has been proved by the defendants. On
the assumption that Partnership Deed has been proved,
the Appellate Court then proceeded to hold that the same
would indicate that the legal possession of the suit
premises has not been parted by defendant no.1. On the
other hand, defendants 2 to 5 were merely Partners
alongwith defendant no.1 in Chetna Enterprises; for
which reason, it was not a case of unlawful subletting.
6. The real question to be considered is: whether the
Appellate Court was right in disposing of the argument
in such cryptic manner especially when the Trial Court
had recorded as of fact that the relevant documents were
not proved in evidence by the defendant; and only
thereafter the Trial Court proceeded to consider the
::: Downloaded on – 09/06/2013 14:22:20 :::
5
other evidence to answer the point in issue. Whereas
the Appellate court without recording any reason as to
why it was inclined to overturn the finding so record by
the Trial Court straightway jumped to the conclusion
that the Partnership Deed has been proved by the
defendants and on that basis proceeded to answer the
point in issue with reference to the stipulations
therein. However, if it were to be held, as found by
the trial Court, that Partnership Deed was not proved,
the stipulations therein
ig will be of no avail. Indeed, I
am not expressing any opinion as to whether the view
taken by the Appellate Court in that behalf is just and
proper. It would have been a different matter if the
Appellate Court were to record some reasons as to why it
was inclined to take the view that the Partnership Deed
has been duly proved in evidence. That is not the case
on hand. Indeed, Counsel for the Respondent tried to
pursuade me that there is ample evidence on record which
would support the conclusion noted by the Appellate
Court that the Partnership Deed has been proved by the
defendants. However, it is not possible for this Court
to appreciate the evidence for the first time to
ascertain that fact in exercise of writ jurisdiction.
That however was expected from the Appellate Court who
ought to have adverted to the relevant evidence which
would substantiate the finding that the Partnership Deed
was duly proved in evidence. Instead of reappreciating
::: Downloaded on – 09/06/2013 14:22:20 :::
6
the evidence for the first time by this Court, the
appropriate course, in my opinion, is to relegate the
parties before the Appellate Court which will have to
reconsider the entire matter with regard to ground of
unlawful subletting on its own merits in accordance with
law. All questions in that behalf are left open to be
considered by the Appellate Court.
7. Counsel for the Petitioner has relied on the
decision of ig our High Court in the case of Bachansingh
Dualsing Sikh & ors.v/s. Rasulbi w/o. Shaikh Ismail
Sikilkar & ors. reported in 1987 Mah. R.C.J. 113 to
contend that the Partnership Deed was a sham and bogus
document. However, once again that is a matter which
will have to be examined by the Appellate court since
the parties are relegated before that Court for
reconsideration of the issue on its own merits in
accordance with law.
8. Counsel for the Respondent, on the other hand, has
relied on the decision of the Apex Court in the case of
Helper Girdharibhai v/s. Saiyed Mohmad Mirasaheb Kadri
& ors. reported in AIR 1987 SC 1782 to contend that if
it is a case of “genuine partnership agreement” and
defendant no.1 is one of the Partner of the said firm,
the question of unlawful subletting does not arise.
There is no difficulty in accepting the proposition
::: Downloaded on – 09/06/2013 14:22:20 :::
7
expounded in the decision of the Apex Court referred to
above. However, that decision would be of avail to the
Respondent-tenant only if the Respondent-tenant was able
to prove the existence of a Partnership and that too
that the Partnership was a genuine one. This matter
will have to be considered by the Appellate Court while
considering the restored Appeal on its own merits with
regard to ground of unlawful subletting.
9. My attention was also invited to another decision
of the Apex Court in the case of Delhi Stationers and
Printers v/s. Rajendra Kumar reported in 1990 (@) SCC
331 to contend that the ingredients such as transfer of
exclusive right to enjoy property in favour of third
party and that the said right created must be in lieu of
payment of some compensation or rent and parting of
legal possession, has to be established from the record.
In absence thereof, it is not open to conclude that it
is a case of unlawful subletting. Once again this is a
matter which will have to be considered by the Appellate
Court in remanded proceedings. All questions in that
behalf as aforesaid are left open to be considered on
its own merits.
10. My attention has been rightly invited by the
Counsel for the Respondent in all fairness to the
exposition in the case of Suresh D. Zamakade v/s.
::: Downloaded on – 09/06/2013 14:22:20 :::
8
Narayandas V. Shah & ors. reported in 2003 (2) Bombay
C.R. 830 which has expounded about the role and duty of
the Appellate Court in examining and answering the
matter before it. Needless to observe that the
Appellate Court shall bear those parameters while
considering the Appeal which is restored to its file for
reconsideration.
11. Accordingly, this Writ Petition partly succeeds.
The impugned Judgment
ig and decree passed by the Appellate
Court is set aside and instead Civil Appeal No.845/1988
is restored to the file of the District Judge, Pune for
reconsideration on its own merits with regard to ground
of unlawful subletting only. All questions in that
behalf are left open.
12. The parties shall appear before the Appellate Court
on 16th March, 2009 on which date the Appellate Court
may proceed to indicate date of hearing of the Appeal,
however, shall ensure that Appeal shall be finally
disposed of not later than 31st July, 2009. It will be
open to the parties to request the Appellate Court to
consider further material if any in addition to the
material already on record. That request will have to
be dealt with in accordance with law.
::: Downloaded on – 09/06/2013 14:22:20 :::
9
13. Office to transmit the record forthwith to the
District Court Pune, if necessary by a special
messenger.
[A.M.KHANWILKAR,J.]
::: Downloaded on – 09/06/2013 14:22:20 :::