Civil Revision Application No.469 of 2010

20th January, 2011

Petitioner Counsel: Mr. VIVEK R. WALAWALKAR,SAMEER BHALEKAR,MAHESH DHURI
Respondent Counsel: Mr. P. S. DANI,Smt. DIVYA TRIVEDI

Cases Cited:
Shah Babulal @ Gangaji Devji Vs. Prakash Ratansey Merchant, (1986) Bombay Rent Cases 122 [Para 3,4]
Bhairulal Balmukund Verma Vs. Poonamchand Kasturchand Sancheti, (1997) Bombay Rent Cases 270 [Para 3,4]
Malabar Fisheries Co. Vs. Commissioner of Income Tax, AIR 1980 SC 176 [Para 5]
American Dry Fruit Stores Vs. ADF Foods Limited, 2006(3) Bom.C.R. 837 [Para 5]

JUDGMENT

JUDGMENT :- By this revision application, applicants (original defendant nos.5, 6 and 8) challenge a decree of eviction passed by the appellate bench of the Small Causes Court on 19th March, 2010.

2. Respondent nos.1 to 5 are the owners and landlords of the suit premises which are commercial premises admeasuring about 10,000 sq. ft. situated at Goregaon (W) Mumbai. By an agreement dated 23rd March, 1966, they let out to the respondent nos.6 to 9 (the defendant nos.1 to 4) the suit premises on a monthly rent of Rs.4,811/-. The defendant nos.1 to 4 were carrying out business in the partnership in the suit premises in the name and style of M/s. Town Printary. In course of time, some of the defendant nos.1 to 4 died and the remaining retired from the firm. Eventually, defendant nos.5 to 9 came in possession of the suit premises and continued the business in partnership under the same name i.e. in the name of M/s. Town Printary. On the defendant nos.1 to 4 ceasing to be the partners and the defendant nos.5 to 9 coming in possession of the suit premises, the landlords issued a notice to quit which was followed by a suit for eviction interalia on the ground of sub-letting. The trial court dismissed the suit. On appeal, the appellate bench of the Small Causes Court allowed the appeal and held that defendant nos.5 to 9 were unlawful sub-tenants and passed a decree for possession. That decision is impugned in the present revision.

3. Mr. Walavalkar, learned counsel for the applicants submitted that the defendant nos.1 to 4 were not the tenants but the partnership firm viz. M/s. Town Printary of which they were the partners was the tenant of the suit premises and since the same firm was continued there was not subletting. He invited my attention to the agreement of tenancy dated 23rd March, 1966 (Exhibit-A to the application) and submitted that in the agreement after the names of four defendants, the words "of M/s. Town Printary" were written indicating that defendant nos.1 to 4 had taken the premises on rent not for themselves but for the partnership firm viz. M/s. Town Printary. The partnership firm was reconstituted from time to time and presently, defendant nos.5 to 9 were the partners of the partnership firm. Since the same partnership firm continues, it cannot be held that defendant nos.5 to 9 were the unlawful sub-tenants. In support of his submission, he referred to and relied upon a decision of this Court in Shah Babulal @ Gangaji Devji Vs. Prakash Ratansey Merchant & ors., (1986) Bombay Rent Cases 122, as also to another decision of this Court in the case of Bhairulal Balmukund Verma Vs. Poonamchand Kasturchand Sancheti & Anr., (1997) Bombay Rent Cases 270.

4. In the case of Shah Babulal (supra) a learned Single Judge of this Court held that where the tenancy was created in favour of a particular group of persons at a particular time and all the persons in that group go out and in their place, some other persons have come, then there would be a total change in the persons who were entitled to occupy the premises concerned. However on facts, the Court in that case held one of the persons had constantly remained in the partnership firm and therefore it could not be contended that there had been a transfer or creation of illegal sub-tenancy prohibited by section 15 of the Bombay Rent Act. The decision is distinguishable from the case at hand inasmuch as none of the original partners of partnership firm had continued as a partner of the firm on the date of filing of the suit. In the case of Bhairulal Balmukund Verma (supra) this Court held that for the purpose of sub-tenancy, there must be a transfer of exclusive possession of the entire or a portion of rented premises for some compensation and unless the exclusive possession was transferred, there cannot be a sub-tenancy. In the present case, the appellate court has recorded a finding of fact that none of the original partners is in possession of the suit premises and defendant nos.5 to 9 or some of them are in exclusive possession thereof. The case therefore has no application to the facts of the present case.

5. I would not proceed to consider the submission of Mr. Walawalkar that the same firm viz. M/s. Town Printaries continues to be in possession and the fact that all the original partners have gone out and new partners have come in does not alter the tenancy which was of the firm. In the case of Malabar Fisheries Co. Vs. Commissioner of Income Tax, AIR 1980 SC 176, the Supreme Court had an occasion to consider nature of the firm and firm's property. The Supreme Court held that firm is not a distinct legal person and is merely a compendious name of all the persons. Partnership property in law belongs to the partners constituting the firm. This decision has been followed by this Court in the case of American Dry Fruit Stores Vs. ADF Foods Limited, 2006(3) Bom.C.R. 837. Even if it is assumed that the agreement of tenancy dated 23rd March, 1966 was in the name of M/s. Town Printary all that means is that it was an agreement in favour of all persons who were the partners of the firm on 23rd March, 1966. Admittedly only defendant nos.1 to 4 were the partners of the firm on 23rd March, 1966. On the date of filing of the suit, some of them had died and remaining had retired. The defendant nos.5 to 9 are the new partners. None of them was a partner on 23rd March, 1966. They are strangers to the tenancy agreement. The appellate court has held that defendant no.5 who is widow of one of the partners and alleged to be a partner of the reconstituted firm is in fact not a real partner. She had no knowledge of the business of the firm and was only receiving Rs.5,000/- per month from the other partners. Since all the original partners have ceased to be the partners and the persons who presently constitute the firm are all strangers and as they are in exclusive possession of the suit property, it must be held that they are unlawful sub-tenants and/or unlawful assignees. Appellate Court committed no error in law in passing a decree for possession on the ground of sub-letting. There is no merit in the civil revision application which is hereby rejected.

6. Learned counsel for the revision applicants prays for continuation of interim relief as they want to challenge this order in appeal. It is accordingly directed that the decree of possession shall not be executed for a period of six weeks subject to a condition that the revision applicants shall not part with the possession of the suit premises and shall file an undertaking in the usual terms in the court within two weeks.

Ordered accordingly.