CRA/1225/1982 of KISHANLAL MANOHARLAL Vs NAGINDAS ATMARAM KADIA on 5 December 1995

ORAL JUDGMENT:

Having heard the learned counsel for theparties, I do not find any substance in the revisionpetition.

2. It is a case of double subletting.The learned firstappellate court, after considering evidence - both oral aswell as documentary, has recorded finding of fact that infact the landlords were duped by the tenant by keeping thesame name of the firm and thereby successfully suppressedunlawful subletting or transfer of the suit premises to thenew firm of M/s. Kishanlal Manoharlal. There is alsoconcurrent finding of fact on subletting of the premises todefendant No.2. The courts below recorded the finding offact that possession of the suit premises has been given todefendant No.2. It has also been found by both the courtsbelow that defendant No.2 is carrying on business in thesuit premises. Partnership deed of defendant No.2 atExh.150 is produced by the said party which gives out theaddress of the firm as of the shop in dispute. Thisdocument is a strong evidence to prove that the firm ofdefendant No.2 started their new business in the suitpremises inthe year 1970. Learned counsel for thepetitioner has placed much stress on the point thatdefendant No.2 has owned a shop at Sindhi Market, RavadiBazar, Ahmedabad, which is far away from the suit premisesand as such the Courts below have committed a seriousillegality in believing the subletting in his favour. Ifail to see any merit in this submission for two reasons.Firstly, merely because defendant No.2 has another shop itcannot be presumed that there was no subletting. To expandhis business, defendant No.2 would have all the rights totake another shop. There is no evidence on the record toshow that the shop, reference to which has been made abovewas hired by defendant No.2 prior to subletting of thesuit-shop. The rent receipts and the monthly tax receiptsproduced by the defendants of that shop are for the periodsubsequent to the period 1973-74, whereas the present suithas been filed on 7-2-1974. Taking into consideration all the facts and circumstances of the case, it is a case wherethe plaintiff has been able to establish the case ofsubletting of the suit premises to defendant No.2.

3. Learned counsel for the petitioner has raised anothercontention that the principal tenant has not been impleadedas party to the suit and as such the suit should have beendismissed by the trial court for non-joinder of thenecessary party. This point has been raised by thedefendant petitioner before the first appellate court alsoand the court has, after considering all the aspects of thematter, held that the suit is legally maintainable. Thisobjection was taken by the defendant in the trial court.After this objection was raised, the plaintiff has taken allthe care and he immediately filed application Exh.122 inwhich he stated that the summons issued by the Court todefendant No.1 was accepted byone Kishanlal Ramchand and thewritten statement Exh.16 filed by defendant No.1 is signedby Shri Manoharlal R. Sajwani. It is further stated by theplaintiff inthe application that Kishanlal Ramchand is not apartner of the tenant-firm, and Shri Manoharlal Sajwani alsois not a partner of the tenant-firm. After giving thesefacts he prayed that the summons be reissued and it may beserved to the real partner Shri Ramchand Gangaram. Thetrial court, after hearing both the sides on thisapplication issued fresh summons to the firm which wasserved on Shri Ramchand Gangaram. Shri Ramchand Gangaramappeared in the trial court and he filed written statementExh.135. In the written statement he has taken the standthat he was never a partner of the firm, and had nothing todo with the firm. He prayed for dismissal of the suitagainst him. The matter does not rest here. The plaintiffhad further filed pursis Exh.129 in the trial court andstated that his suit is against the firm of M/s.KishanlalManoharlal as shown inthe partnership deed dated 14-3-1963.It is not in dispute that the tenant firm was constitutedunder the partnership deed dated 14-3-1963. After takinginto consideration all these facts the learned trial courthas rightly held that these are sufficient to prove that theplaintiff has joined the old firm (head tenant) in the suitas defendant and whichfinding has been affirmed by the firstappellate court. I do not find any perversity in thefindings of the courts below.

4. Other two contentions were sought to be raised by thelearned counsel for the petitioner. The first contentionraised is that the plaintiff is residing in the same housewhere the suit shop is situate and though the firstsubletting had taken place in the year 1963 but the suit hadbeen filed in the year 1974. Having knowledge of sublettinghe allowed the firm to remain there and accepted the rent and as such waiver and acquiescence attracted and it is notopen to him to seek decree for eviction on the ground ofsubletting. I do not find any substance in the contentionfor two reasons.Firstly no such ground has been raised bythe learned counsel for the defendant petitioner in thefirst appellate court. Secondly the plaintiff has come upwith the case that he has come to know about subletting forthe first time in December,1973. This finding of fact whichhas been recorded by the first appellate court could not besuccessfully challenged by the counsel for the defendantpetitioner before this Court. Apart from this, even if thefirst subletting goes on the aforesaid ground then alsoonthis ground alone the decree of the courts below cannot bereversed as the second subletting to defendant No.2 has beenheld proved by both the courts below,which finding hasalready been confirmed by me above.

5. In the result the revision petition fails and the sameis dismissed. Rule discharged. Ad-interim stay orderpassed bythis court on 16-7-182 stands automaticallyvacated.

6. At this stage the learned counsel for the petitionerprays that some time may be granted to the defendant tovacate the premises as itis very difficult to arrange forsuitable premises in Ahmedabad City. Taking intoconsideration all the facts and circumstances of the case,three months' time is granted to the petitioner to hand overvacant possession of the suit premises to theplaintiff-respondents, subject to the condition that (i) thedefendant shall hand over vacant possession of the shop indispute to the landlord respondents on or before 4th March,1996; and (ii) the defendant petitioner shall make paymentof all the arrears of mesne profits till today, within aperiod of fifteen days from today and shall continueto payor deposit the monthly amount of mesne profit till 4thMarch, 1996. If any of the aforesaid conditions isbreached, then the decree shall become automaticallyexecutable without reference to this Court.

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