Document Fragment View

Matching Fragments

Issue No.4- Whether the so called unauthorized changes made by the defendant nos.1 and 2 in the demised premises have reduced the value of the premises in question?"

6. The findings recorded in the judgment dated 22.2.1991 on the aforequoted Issue nos.3 and 4, were set aside by this Court by aforesaid judgment dated 3.7.2015 in Civil Revision No.930 of 1991 as under;

"19. I finds substance in the submissions. As already said, defendant 1 was allotted disputed premises by RCEO and tenancy commenced in his name. He inducted defendants 3 and 4 to run a partnership Hotel business in the disputed premises. Since knowledge of landlord to this partnership business has been found proved, though it may not be a case of subletting, but the co-tenancy enjoyed by defendant 3 and 4 was along with defendant 1. All three were joint and co-tenants. Hence for any act or omission the responsibility was also joint and several. Any act or omission referable to one of the partner or one of the co-tenant would cause same consequence in respect to all other co-tenants. If one or more partner subsequently withdrew, for the acts and omissions of such partner, when partnership was subsisting, other partners would be liable and bound to face same consequence, as would have been faced by outgoing partner. Mere fact that partner, who has allegedly did something, has separated would not absolve other partners from liability they had as co-tenant with outgoing partner. Thus the mere fact that defendant 1 has not contested the matter or withdrawn from partnership would not exempt defendants 3 and 4 from any liability accrued when partnership was continuing, if the allegations of material alteration resulting in diminishing the value of property is/are found correct. The fact that partner to whom allotment was made by RCEO has ceased to be tenant and tenancy stood devolved upon remaining tenants would make no difference for the plaintiffs-landlords for the reason that responsibility is joint and several amongst the partners. Therefore, it was necessary for Trial Court to decide whether there was any material or structural alteration which has the effect of diminishing value of property and what was the period during which this structural alteration was made. If period was when defendants 1, 3 and 4 were enjoying tenancy in partnership, all the partners are bound to face the consequences as provided in law. Mere fact that one or more partner has separated or withdrawn subsequently would make no difference and absolve remaining partners from their liability and consequences. The view, therefore, taken by Court below in respect to Issues 3 and 4, in my view, can not sustain. These issues have not been examined and dealt with properly but in a casual fashion. Both these issues have been answered only on the ground that defendant 1 has ceased to be a partner and has not contested the matter. In my view matter requires remand to Court below to look into and record its finding in respect to Issues 3 and 4 in the light of observations made above.
"I finds substance in the submissions. As already said, defendant 1 was allotted disputed premises by RCEO and tenancy commenced in his name. He inducted defendants 3 and 4 to run a partnership Hotel business in the disputed premises. Since knowledge of landlord to this partnership business has been found proved, though it may not be a case of subletting, but the co-tenancy enjoyed by defendant 3 and 4 was along with defendant 1. All three were joint and co-tenants. Hence for any act or omission the responsibility was also joint and several. Any act or omission referable to one of the partner or one of the co-tenant would cause same consequence in respect to all other co-tenants. If one or more partner subsequently withdrew, for the acts and omissions of such partner, when partnership was subsisting, other partners would be liable and bound to face same consequence, as would have been faced by outgoing partner. Mere fact that partner, who has allegedly did something, has separated would not absolve other partners from liability they had as co-tenant with outgoing partner. Thus the mere fact that defendant 1 has not contested the matter or withdrawn from partnership would not exempt defendants 3 and 4 from any liability accrued when partnership was continuing, if the allegations of material alteration resulting in diminishing the value of property is/are found correct. The fact that partner to whom allotment was made by RCEO has ceased to be tenant and tenancy stood devolved upon remaining tenants would make no difference for the plaintiffs-landlords for the reason that responsibility is joint and several amongst the partners. Therefore, it was necessary for Trial Court to decide whether there was any material or structural alteration which has the effect of diminishing value of property and what was the period during which this structural alteration was made. If period was when defendants 1, 3 and 4 were enjoying tenancy in partnership, all the partners are bound to face the consequences as provided in law. Mere fact that one or more partner has separated or withdrawn subsequently would make no difference and absolve remaining partners from their liability and consequences. The view, therefore, taken by Court below in respect to Issues 3 and 4, in my view, can not sustain. These issues have not been examined and dealt with properly but in a casual fashion. Both these issues have been answered only on the ground that defendant 1 has ceased to be a partner and has not contested the matter. In my view matter requires remand to Court below to look into and record its finding in respect to Issues 3 and 4 in the light of observations made above." (Emphasis supplied by me)