Punjab-Haryana High Court
Parkash Chand And Anr. vs Bhan Chand And Anr. on 2 January, 1995
Equivalent citations: (1995)110PLR147, 1995 A I H C 3640
Author: Ashok Bhan
Bench: Ashok Bhan
ORDER Ashok Bhan, J.
1. This judgment shall dispose of two cross revision petitions No. 2741 of 1990 (Parkash Chand and Anr. v. Bhan Chand and Anr.) and 161 of 1991 (Bhan Chand v. Parkash Chand and Ors.), arising out of the same ejectment petition. C.R. 2741 of 1990 was heard by me in August, 1994. At that time C.R. 161 of 1991 was not added and a request was made later on; that these two revision petitions be disposed of together. Keeping in view this fact, I recalled my order of August, 1994, passed in C.R. 2741 of 1990 and ordered that these two revision petitions be listed together; they are being disposed of by this Order. These revision petitions arise out of the following facts:-
2. Bhan Chand, landlord (hereinafter referred to as the landlord) sought eviction of Parkash Chand, tenant as well as his son Ashok Kumar and brother Nasib Chand from a shop situated in the Municipal area of Mahilpur. The shop was let out to Parkash Chand in his personal capacity on a monthly rent of Rs. 70/-. Eviction was sought on the following four grounds;-
i) That the tenant was in arrears of rent since 1982.
ii) That the tenant had sub let the demised premises to his son Ashok Kumar and brother Nasib Chand without the written consent of the landlord.
iii) That the tenant has ceased to occupy the shop for a continuous period of more than 13 months; and
iv) that the demised premises were bonafide required for the business of the son of the landlord.
3. After service, Parkash Chand, tenant (hereinafter referred to as 'the tenant') filed written statement controverting the plea raised by the landlord in his ejectment petition. It was pleased that Raj Medical Stores is the tenant in the demised premises and, therefore, the present petition was bad for its non-joinder; that Parkash Chand and his son Ashok Kumar are the partners of Raj Medical Stores and rent upto February 1983 had been paid to the landlord against receipt dated March 7, 1983. Thereafter, the landlord stopped receiving rent and rent was deposited in Court upto March 31,1986 and the rent for the period for April 1,1985 to March 31, 1986 was tendered in court for payment to the landlord along with interest and costs assessed by the Rent Controller. Rent tendered in Court was not accepted by the landlord. It was denied that the demised premises was bonafide required for the business of the son of the landlord. Further plea taken was that a shop cannot be got vacated for personal necessity under the provisions of Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act'). On the pleadings of the parties, the following issues were framed:-
"1. Whether Parkash Chand alone was a tenant in the demised shop? OPA.
2. Whether Parkash Chand respondent No. 1 has transferred the possession of this shop to respondent No. 2 and 3 without permission of the applicant ? OPA.
3. Whether respondent No. l had ceased to occupy this shop for more than 4 months ? OPA.
4. Whether the tender of arrears of rent is invalid? OPA.
4. Under issue No.l Rent Controller held that Parkash Chand alone was the tenant in the shop and not M/s Raj Medical Stores. On issue No. 2, it was held that the partnership was merely a camouflage and not genuine transaction and hence ruled that the tenant had sublet the demised premises to respondent No. 2 and 3 without the consent of the landlord. On issue No 3, the Rent Controller held that the tenant had ceased to occupy the demised premises for a continuous period of more than four months without any reasonable cause. On issue No. 4, the Rent Controller found that the tender of rent made by the partnership firm was not a valid tender and the tender of rent having not been made by the Parkash Chand, tenant, the respondents were liable to be evicted. Against the order of the Rent Controller, tenant filed an appeal before the Appellate authority.
5. Before the appellate Authority, finding on issue No. 1 was not challenged. Appellate Authority reversed the findings of the Rent Controller on issues No. 2 and 3. Under issue No. 2, it was held that Parkash Chand, tenant had not transferred the possession of the shop to respondents No. 2 and 3. Under issue No. 3, it was held that Parkash Chand, tenant had not ceased to occupy the shop for a continuous period of more than four months. Further, the findings recorded under issue No. 4 by the Rent Controller were upheld by the Appellate Authority. It was held that the tender was not made exclusively on behalf of the tenant but on behalf of the others as well; and therefore, the tender made was not a valid tender. It view of the findings recorded under issue No. 4 the appeal was dismissed. Tenant, being aggrieved, filed C.R. 2741 of 1990 and challenged the findings recorded under issue No. 4. Landlord, being aggrieved of the findings recorded under issue No. 2 and 3, filed C.R. 161 of 1991, which was ordered to be admitted and heard along with OR. 2741 of 1990.
6. I have heard the counsel for the parties at length, in both the revision petitions.
7. Counsel appearing for the tenant argued that the tender was made by the counsel appearing for the respondents on behalf of the tenant and his son Ashok Kumar, who had been taken as a partner. I have read the statement made by the counsel at the time of tendering of rent. Translated into English it would read as under:-
"Rent from April 1, 1985 to March 31, 1986 at the rate of Rs. 70/- per month- totalling Rs. 840/-, interest Rs. 40/-, costs Rs. 40/-. Total in all Rs. 920/- is tendered for payment to the petitioner. Rent for February, 1983 has already been paid against receipt and rent from March 1, 1983 to March 31,1985 has been deposited in court for payment to the petitioner. Respondent No. 1 and 3 are tenants in the demised premises as partners of Raj Medical Stores while respondent No. 2 is an employee."
8. A reading of the above statement would leave no manner of doubt that the tender was made on behalf of the tenants, which includes the original tenant as well.
9. The authorities below relied upon a judgment of a Single Judge reported as the Punjab Rajasthan Goods Career, Fazilka and Ors. v. Onkar Mai and Ors., (1976) 78 P.L.R. 364, to come to the conclusion that tender of rent can only be made by the tenant exclusively and not by a person who had been taken as a partner in the firm or on behalf of a sub tenant.
10. Counsel for the tenant relied upon a judgment of the Supreme Court reported as Smt. Pushpa Devi and Ors. v. Milkhi Ram, 1990(1) R.C.R. 334, in which a contrary view to the one expressed by this Court in The Punjab Rajasthan Goods Career's case (supra) has been taken. Infact the judgment reported in The Punjab Rajasthan Goods Career's Case (supra) has been specifically over ruled. In this case, it was held that where the ejectment of a tenant is sought on the ground of arrears of rent and sub-letting, then the tender of rent on behalf of the tenant or the sub-tenant was a valid tender. It was observed by their Lordships of the Supreme Court as under-
"It is time for us to be explicit. Taking into account the intention of the legislature and the purposes for which the proviso was enacted, we are of the opinion that the obligation to tender the rent under the proviso on the first hearing date does not depend upon the existence of admitted jural relationship of landlord and tenants. When an action for eviction is brought by the landlord on the ground of default, the proviso stands attracted. The benefits of the proviso could be availed of by the tenant and also by those who claim to be the tenant. The view to the contrary expressed by the High Court of Punjab and Haryana in Ram Gopal and Onkar Mal cases is likely to be of greater mischief to the tenants than a protection for them and is therefore over ruled."
11. The finding recorded by the authorities below on issue No. 4 is erroneous in view of the law laid down by their Lordships of the Supreme Court in Smt. Pushpa Devi's Case (Supra). Accordingly, the findings recorded under issue No. 4 are reversed.
12. Coming to the revision petition filed by the landlord (C.R. 161 of 1991), it was argued by the counsel for the tenant that the revision petition filed by the landlord was not maintainable. Even if, for the sake of arguments, it is assumed that the revision petition filed by the landlord was not maintainable, it was open to the landlord to challenge the findings recorded under issues No. 2 and 3 in order to support the judgment rendered by the lower Appellate court in the appeal filed by the tenant. Under the circumstances, it would be necessary to record findings on issues No. 2 and 3 as well.
13. Under issue No. 1, it was held that Parkash Chand alone was the tenant in the demised shop and the findings recorded under this issue have not been challenged before the 1st Appellate Authority or this Court. As per the case set up by the tenant, his son Ashok Kumar had joined him as a partner in the business and Nasib Chand being a qualified person was employed during his temporary absence to Canada as an employee and there was thus no question of subletting the demised premises; that the .tenant had gone to Canada after the death of his son-in-law to settle his daughter and her children for a temporary period and that he stayed there for a period of 13 months and returned thereafter and is carrying on the business in the demised premises. The arrears of rent had been tendered on behalf of the tenant-Parkash Chand. Rent Controller, under issue No. 2, held that since Ashok Kumar had not contributed towards the capital investment, therefore, it was not a genuine partnership and the tenant had sublet the premises to Ashok Kumar. Learned counsel appearing for the tenant argued that a person sharing the profits for his labour without contributing to the capital would also be a partner. Partnership has been defined under Section 4 of the Partnership Act, 1932, as under :-
"4. Definition of "partnership", "partner", "firm" and "firm name". - "Partnership" is the relation between person who have agreed to share the profit of a business carried on by all or any of them acting for all.
Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm" and the name under which their business is carried on is called the "firm name".
14. Therefore, to constitute a partnership, there must be (1) a business; (2) an agreement to share profits of the business and (3) the business must be carried on by all of them or any of them acting for all. As per the definition of partnership given under Section 4 of the Partnership Act, 1932, partnership does not require contribution of capital. The contribution of capital is not, thus, essential to the creation of a partnership. A person sharing profits for his labour, without contributing to the capital, can also be a partner. In the instant case, statements of accounts, Exh. A-49 and Exh. A-50, and Exh. A-51 read with the statement of RW-1, Parkash Chand, tenant, shows that Ashok Kumar and Parkash Chand, tenant, had been sharing profits of the business in equal share. It further shows payment of salary to the pharmacist employed by the firm. It has been admitted by the Drug Inspector A.L. Salwan, AW-2 that a copy of the partnership deed dated 20.4.1984 along with an application dated 22.5.1984 was received in the office of the Civil Surgeon Hoshiarpuand Parkash Chand was the sole proprietor of Raj Medical Stores upto 31.3.1983 and thereafter, the business was being run in partnership with Ashok Kumar. This witness had also proved the copies of affidavits Exh. R-2 of Nasib Chand and Exh. R-l of Ashok Kumar. His testimony further makes it clear that Parkash Chand was the only qualified person to run the business under the licence issued and Nasib Chand had been employed in his absence, being a qualified pharmacist, to run the business. The partnership deed and the statement of accounts, referred to above, were got produced at the instance of the landlord. The copy of the partnership deed also makes it clear that the business is being run in partnership from 15.12.1983 and both the partners had agreed to share the profits and losses of the partnership business in equal shares vide Clause 9 of the deed. Law does riot prohibit taking of partners in business. Where a tenant enters into partnership with another person for carrying on the business in the demised premises, it does not amount to sub-letting. The onus was on the landlord to prove the subletting. In order to prove the sub-let- ting, the landlord had to show that legal and exclusive possession of the demised premises had been handed over to some other persons, which he had failed to prove. On the facts of the present case, it cannot be held that the tenant had handed over the legal and exclusive possession of the demised premises. Ashok Kumar was his son who joined his father as a partner. Nasib Chand his brother, who was a pharmacist, was taken as an employee in order to run the business during the absence of Parkash Chand, who had gone to Canada to settle his daughter and her children after the death of his son-in-law. The Drug Authority had accepted the statement of accounts as well as the partnership deed, which had been brought on record to show that the business was being run in partnership. Rent Controller, therefore, clearly erred in holding that the tenant had failed to prove the partnership deed. The findings recorded by the 1st Appellate authority on issue No. 2 taking the view that the partnership was a genuine partnership is, therefore, upheld.
15. The findings recorded by the Rent Controller that the tenant had ceased to occupy the shop for more than four months continuously, stands reversed by the Appellate Authority. Clause - V of sub-Section (2) of Section 13 of the East Punjab Urban Rent Restriction Act reads as under :-
"(v) that where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause, the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application:
Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate."
18. This Clause covers the case where the premises are locked and have not been actually used for a period of over four months. It does not cover a case where the premises were continuously in use though the tenant was not physically present for some time. In this particular case, the tenant had gone to Canada temporarily and in his absence, his son Ashok Kumar was running the business in partnership with him with the help of Nasib Chand, the brother of the tenant, who was employed for some time. The view which I am taking finds support from a judgment of this Court reported as Balwant Singh v. Gurgial Singh and Anr., (1971)73 P.L.R. 1032, wherein it was held as under :-
"Held that the case is not covered by Clause V of sub-section (2) of Section 13 of the Act. This clause covers a case where the premises are locked and have not been actually used for a period of over four months and does not cover a case where the premises are continuously in use though the tenant himself does not stay there.
"Held further, that the mere absence of the tenant from the premises is not material for the purpose of Clause (v). If the tenant has transferred his lessee rights in favour of some body else or that he has transferred the possession and user of the premises in favour of somebody else, that would be covered by clause (ii)(a) of sub-section (2) of Section 13 of the Act."
19. This judgment was approved by a Division Bench of this Court in Buta Ram v. Balwant Singh, 1987 HRR 617, and it was held that "in order to be in occupation of the demised premises, physical possession of the tenant therein is not an essential requisite for avoiding the penal course of ejectment under Section 13(2)(v) of the Act". The factual position has to be ascertained in each case. In the present case, the tenant had gone to Canada temporarily for a specific purpose and after doing the needful he returned back to India and is carrying on his business in the demised premises. In his absence, the business was being run by him son as a partner with the help of Nasib Chand, brother of the tenant, who was a qualified pharmacist, employed during this period. It, therefore, cannot be held that the tenant had ceased to occupy the shop for more than four months continuously. Therefore, the findings recorded by the lower Appellate Court under issue No. 3 are upheld.
20. As a result of the findings recorded above, C.R. 2741 of 1990, filed by Parkash Chand, tenant, is accepted and C.R. 161 of 1991, filed by the landlord is dismissed. As a consequence thereof, the ejectment petition filed by the landlord is ordered to be dismissed with no order as to costs.