JUDGMENT
R.S. Garg , J.
1. The dissatisfied tenants are before this Court challenging the judgment and decree dated 19th August, 1996 passed in Civil Appeal No. 91 of 1992 by the learned Appellate Bench of the Small Causes Courts, Ahmedabad, confirming the judgment and decree dated 25.1.96 passed by the Small Causes Court Judge, Small Causes Court No. 6, Ahmedabad in H.R.P. Suit No. 3944 of 1981, whereunder a decree for eviction has been made against the present petitioners. Short facts leading to the present revision petition are that, the landlord – Harivadan Vadilal Modi, since deceased, filed a suit against Shahbuddin Maganlal – petitioners no. 1 and Sirajali Alibhai – petitioner no. 2, submitting inter alia that the suit premises were let out to Shahbuddin who had sub-let the premises in favour of Sirajali and as such they are liable to be evicted. The defendants appeared before the Court and submitted that the defendant no. 2 was inducted as a partner in the partnership created by the defendants and the suit was not maintainable, because, the premises were leased out jointly in favour of three tenants and as the suit has been filed against one tenant only, the suit was bad for non-joinder of necessary parties. The learned trial court framed number of the issues, but did not frame any issue relating to non-joinder of parties. It allowed the parties to lead evidence and also granted them hearing. After hearing the parties, the court found that the plaintiffs were successful in proving that the tenant-defendant no. 1 had created sub-tenancy in favour of the defendant no. 2 and as such, they were liable to be evicted. On the question of non-joinder of parties, the court did not record any finding, because, neither there was any issue cast nor any evidence led nor the defendant craved indulgence of the trial court to the fact that an issue was required to be framed on his pleading. After the eviction order was made, the tenants took up the matter in appeal. The appellate court also held that parting with possession was proved, the defendant no. 2 was in exclusive possession of the property, the defendant no. 1 had lost control over the property and therefore, presumption could be drawn that there was sub-tenancy or there was assignment or there was transfer, and in its conclusion, it held that in view of the assignment, sub-tenancy is proved. It accordingly confirmed the judgment. Being aggrieved by the said judgment, the tenant and the alleged sub-tenant are before this Court under Section 29(2) of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947.
2. Mr. Shah, learned counsel for the petitioners has raised number of the questions, which this Court shall take one by one. His first submission is that the suit was bad for non-joinder of the parties and as a specific plea was raised by the tenant, the court was obliged and duty-bound to cast an issue and if the court did not cast any issue, the defence of the defendants would not be allowed to suffer.
3. True it that certain issues are to be cast on the pleadings of the parties. If the court does not cast an issue on material pleading, then, the party raising a substantial plea can always invite attention of the court to the said fact and request the court to frame additional issue under Order-XIV Rule-2 of Code of Civil Procedure, 1908. Once the party failed to bring the facts to the notice of the court and did not raise any objection regarding non-framing of the issue, it is to be presumed that such party has waived its right to contest at the stage of issues. It is also to be seen that under Rule 13 of Order I of the C.P.C., a plea regarding non-joinder or mis-joinder of parties is to be raised at the first instance and if the same is not raised and pressed right in time, it would not be allowed to be raised and pressed at any subsequent stage. In the present case, the conduct of the defendants clearly shows that they raised the plea, but did not press this plea and wanted to await for an opportunity at the appellate or revisional stage, so that they can contend that the matter be remitted to the trial court. If the law forbids raising of the question at any subsequent stage, either at the appellate or revisional stage, then, the law will take its own course and the question will not be allowed to be raised.
4. It was submitted by the learned counsel for the petitioners that they had submitted an application under Order XLI Rule 27 of the C.P.C., for grant of an opportunity to lead evidence to prove number of the documents, including the partnership deed and lead further evidence to support their plea in relation to non-joinder of the parties.
5. So far as the admittance of additional evidence at the appellate or revisional stage is concerned, the court exercising its appellate or revisional jurisdiction would be governed by Rule 27 of Order XLI of the C.P.C.
6. The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate court, if the court from whose decree an appeal has been preferred, refused to receive evidence which ought to have been admitted or the parties seeking to produce additional evidence satisfies judicial conscience of the appellate or revisional court that despite exercise of due diligence, the evidence sought to be now produced, could not be produced, or appellate court needs any document to be produced or a witness to be examined, then, under such circumstances, the appellate or revisional court can allow the submission of the additional evidence.
7. In the present matter, it is not the case of the petitioners that they wanted to lead evidence in relation to creation of the partnership or in relation to non-joinder of the parties and the trial court did not allow them. If that be so, clause (a) of Order XLI Rule 27(1) of the CPC would not apply. The case of the present petitioners would also not fall under clause (aa), because it is not the case of the petitioners that despite exercise of due diligence, they could not produce evidence nor had they knowledge of the evidence. When they had pleaded about non-joinder of parties and creation of partnership then they were alive to the partnership deed and non-joinder of parties and for the reasons best known to them, they did not press the pleading relating to non-joinder of the party and did not produce the partnership deed, then, they cannot be allowed to say that they exercised due diligence.
8. So far as clause (b) of Order XLI Rule 27(1) CPC is concerned, in the considered opinion of this Court, the case of the petitioners would not fall in the said exception also. This Court does not need any document nor need any witness to prove some documents or satisfy the need of the records. The petitioners cannot be allowed to lead evidence after the evidence is over. They cannot be allowed to fill in the lacunae or the void which was caused because of their own inaction and non-exercise of the diligence. The application filed under Order XLI Rule 27 of the C.P.C., deserves to be and is accordingly rejected.
9. Coming to the merits of the case, learned counsel for the petitioners submitted that the plaintiff had come out with a case of sub-letting and the trial court had also recorded a finding of sub-letting and, therefore, the plaintiff could succeed or fail only on the proof of sub-letting. His submission is that the appellate court has observed that in the present matter, assignment was proved but such finding could not have been recorded by the appellate court, because, under Section 13(1)(e) of the Act, different phrases have been used to cover different issues. According to him, there is a vast distinction between the sub-letting, assignment and transfer. He submits that if the plaintiffs wanted a decree on the ground of assignment, then, they were obliged to file cross-objections against the findings which were recorded against their interest. He submitted that in absence of cross-objections at the instance of the plaintiffs, decree on the ground of assignment could not have been passed.
10. Learned counsel for the defendants, on the other side, submitted that a fair understanding of Section 13(1)(e) of the Act would make clear that a landlord is required to prove that the property’s possession has been transferred by the tenant to someone or someone has come in exclusive possession of the property and the tenant has transferred it either for valuable consideration, which would make it a sub-letting, or in the alternative, it may be transferred or assigned for any other reason. His submission is that the findings recorded by the appellate court would clearly show that the appellate court had recorded a finding of sub-letting and loose use of the phrase that Sdefendant no. 1 has assigned the property in favour of the defendant no. 2 would not make much difference.
11. To prove the facts that the tenant had sub-let the premises to the defendant no. 2 or had assigned the premises in favour of the defendant no. 2, the plaintiff had led cogent evidence. It is to be seen that the defendant no. 2, who claimed to be a partner did not enter the witness box. He simply asked his power of attorney holder to enter the witness box and speak for the defendant no. 2. Unfortunately, the power of attorney holder admitted before the court that he had no knowledge of any facts. It is also to be seen that the partnership deed on which much reliance was placed, was not produced by the defendants before the trial court. The partnership deed could provide a factual foundation in favour of the tenant that in fact, he did not sub-let the premises, but entered into a genuine partnership for one reason or the other. Non-production of the partnership deed would lead to adverse inference against the tenant and the sub-tenant and this Court must hold that production of such document before the trial court could have caused serious prejudice to the defence of the present petitioners. It is yet to be seen that the defendants came out with a case that the defendant no. 1/tenant was to get 10% share in the profits. It is not known to anybody that what capital the tenant has contributed to the partnership. It is also not known to anybody that whether right to occupy the premises only were to be put in the hotchpot or some additional money was given to the partnership. It also appears from the record that tenant was to get only 10% of the profit and lion’s share was to be kept by the other partner. It is also to be seen that Shahbuddin, as a witness had admitted in his cross-examination that after admitting the defendant no. 2 to the alleged partnership, he had given exclusive possession of the property to the defendant no. 2, because he himself was looking after his own shop at a different place. He had admitted before the court that he was looking after his own shop between 9.00 A.M. to 9.00 P.M., which were the timings for the suit shop also. The most important of the admissions made by Shahbudin-defendant no. 1 was that the partnership was not maintaining any accounts. It is unheard of any partnership that the accounts are not maintained. When two or more persons enter into a partnership and each of them is to get his share in profit and loss or suffer loss or gain in accordance with the percentage of their profit and loss, then, maintenance of the accounts is must, because, in absence of the accounts, liability of the partners cannot be segregated. If accounts are not maintained by the partnership and if that is the admitted position then, it is to be presumed that alleged partnership is sham and bogus and, everything is controlled and maintained by the person who is in possession of the property.
12. The facts would show that the defendant no. 1 – original tenant has withdrawn his possession from over the suit premises and has handed over possession of the same to the defendant no. 2 who continues to be in exclusive possession.
13. In a case, where the plaintiff comes to the court with an allegation that the tenant has created sub-tenancy or has assigned the premises or has transferred the same, then, the moment, he leads cogent evidence that someone else is in possession of the property, then, burden to prove that there is no sub-letting or assignment or transfer would shift upon the tenant. In the present case, the plaintiff has successfully discharged the burden, but unfortunately, the tenant could not prove otherwise. True it is that the trial court has observed that sub-tenancy is proved, but it would be incorrect to say that the appellate court recorded a finding of assignment. A fair understanding of paras-12,13,14 and 15 of the appellate court judgment would make clear that the appellate court had given its due consideration to the facts floating on the surface of the records and recorded the finding that the whole show was being managed by the defendant no. 2. It, in fact, had observed that on the proved facts, there can be a presumption of sub-letting or of assignment or of transfer. Such presumptions, certainly, could be drawn by the court against the interest of the defendant, because, some person other than the tenant is in possession of the property. In para-15, the court had observed that in view of the assignment, sub-letting is proved. A capital is sought to be made out of this loose phraseology. It is always to be noted that in case of sub-letting, assignment is always there. Transfer would also be there to complete the sub-tenancy but the transfer would be of the possession and assignment would be of the interest. In a case of creation of sub-tenancy, possession is to be transferred and right, title or interest of the tenant are to be assigned in favour of a sub-tenant. If the Court, while recording its findings uses some loose phraseology, then, nobody would be allowed to make much ado about nothing.
14. So far as the question of filing of the cross-objections is concerned, it is to be seen that a successful plaintiff who could secure a decree on some other findings, if wants to support the judgment of the lower court, then, he would be required to file some cross-objections. In the present case, cross-objections were not required to be filed, because, decree was based on the finding of sub-letting and the same was confirmed on the findings of sub-letting.
15. After giving my full consideration to the totality of the circumstance and for the reasons aforesaid, I find no reasons to interfere. The revision deserves to and is dismissed with costs quantified at Rs. 2500/- (Rupees Two Thousand Five Hundred only). Rule is discharged. Interim relief granted earlier is vacated. Civil Application is accordingly rejected.