Andhra HC (Pre-Telangana)
Ghulam Hussain (Died) And Ors. vs D. Raj Kumar on 28 November, 1996
Equivalent citations: 1997(2)ALT446
ORDER S. Dasaradha Rama Reddy, J.
1. The 1st Petitioner is the tenant in a non-residential premises. The landlord has filed an eviction petition on the grounds of sub-letting and bona fide requirement. The learned Rent Controller dismissed the eviction petition on both the grounds and the Appellate Court., allowed the appeal on both the grounds. The allegation of sub-letting was that the petitioner No. 1 has taken another person i.e. 2nd petitioner as a partner, and carrying on partnership business in the demised premises, that he is not physically present in the premises throughout the year and that he is not taking any active part in the business. The 2nd ground namely personal requirement is that the respondent- landlord is doing the present business in a rented premises along with another partner, that he has no other premises and that he desires to do business in 45 sweets in the suit premises.
2. During the pendency of the CRP, the 1st petitioner-tenant died on 11-7-1993 and his son has been brought on record as L.R.
3. Mr. Dilip Kumar Shiradkar, the learned Counsel for the petitioners contended that taking another person as partner and carrying on partnership business in the suit premises does not amount to sub-letting and that the rents were paid in the name of the tenant and no permission is required from the landlord to take another person as a partner. He cited two decisions in Apparao v. Hanumayamma, 1980 (1) ALT 394. and Nagender v. Muralidhar, 1981 (1) ALT 325. wherein it was held that taking a partner and doing business in the name of partnership in the rented premises does not amount to sub-letting. These two decisions fully support the case of the petitioners.
4. Mr.C. Subba Rao, the learned Counsel for the respondent-landlord on the other hand contended that the tenant had never exercised his right in the premises and he was never in the country and, therefore, this amounts to sub-letting. I do not agree with him. There is no evidence on record to show that the tenant had assigned the tenancy in favour of the 2nd petitioner. There is no rule that the tenant should always be present physically at the demised premises. As long as he is accountable to the landlord and pays rents in time and abides by the various conditions in the lease deed, if there is a written one, he does not cease to be tenant. The other reason given by the appellate Court that no permission was taken from the landlord to start the partnership business is also untenable. There is no requirement under law to take permission of the landlord by the tenant to take a partner. In view of the two decisions referred to above, the lower appellate Court is not correct in holding that the tenant has sub-let the suit premises.
5. But, this itself does not help the petitioners. He has to still get over the second ground, namely bona fide personal requirement. No material is placed by either party as to who is carrying on the business in the suit premises after the death of the tenant on 11-7-1993. But, as per Clause-11 of the Partnership deed (Ex.P-1), in, the event of death of a partner, the partnership is not dissolved but may be carried on with the surviving partner and the L.Rs. of the deceased partner. So, it has to be assumed that the old partnership is continuing with the L.Rs. of the deceased partner and doing business at the demised premises. The respondent says in the eviction petition that he desires to do business in sweets at the suit premises. But, he has not stated that he does not own any other premises either residential or non-residential. In the counter, there is a general and vague allegation that the landlord must show that he has no other non-residential premises. But in the evidence, the landlord stated that he does not possess any other residential premises apart from the suit premises. As per Section 10 (3) (a) (iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the Act), the landlord has to prove that he has no other non-residential premises. In the cross- examination, it is not elicited that the petitioner is occupying any other non-residential building which is his own or to the possession of which he is entitled to. In the two Courts below both sides proceeded on the assumption that the landlord has no other non-residential premises and this fact was never in dispute. But during the arguments, in this revision, Mr. Dilip Kumar Shiradkar, the learned counsel for the petitioners has made a feeble attempt to argue that there is no evidence to show that the landlord has no other non- residential premises of his own or the possession of which he is entitled to. Mr. Subbarao, learned Counsel for the respondent, submitted that it was never the case of the petitioner that the landlord has some other non-residential premises available for occupation and that the tenant cannot take advantage of mistake in the recording of evidence. There is no merit in the petitioners' plea as the fact that the landlord had no other non-residential premises of his own was never in dispute
6. Then, the learned Counsel for the petitioners contended that if the landlord wants to augment his income, he can ask the tenant to increase the rent and this plea was accepted by the learned Rent Controller. There is absolutely no merit in this plea. It is not for the tenant to advise his landlord a to how to augment his income and it is also common knowledge that increase in the rent is not equivalent to the quantum of income which the landlord gets by exploiting the premises in the best way possible. Thus, the landlord who is now carrying on partnership business along with another person at a rented premises and wants the suit premises for the purpose of carrying on business in sweets, satisfies the ingredients of Section 10 (3) (a) (iii) of the Act and accordingly, the appellate Court is right in allowing the eviction petition. The decision in Smt. Vidyavati Bai and Anr. v. Shankerlal and Anr., 1987 (2) ALT 550 at 559 does not apply to the facts of the present case as the respondent-landlord does not have any other non-residential premises.
7. In the result, the CRP is dismissed. No costs. However, the petitioners are given three months' time for vacating and delivering vacant possession of the suit premises to the respondent-landlord subject to the condition that they pay rents in time to the respondent-landlord.