PREMJIT Vs. MAHAVIRPRASAD SHANTILAL

JUDGEMENT

(1.) THE present petitioners are the legal representatives of deceased Premjit s/o Bhimji Shaha, who was the landlord of the premises in question. He filed an application before the Rent Controller, Akola under clauses 13(3)(iii) and (v) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the Rent Control Order). According to him, Mahavirprasad (respondent No. 1) who was in occupation of the shop as a tenant sublet the same to respondent Nos. 2 and 3. Mahavirprasad contested the application and denied the allegations of sub-letting and that he left the shop and did not reasonably need it. Evidence was led on behalf of the parties and the Rent Controller granted permission on both the counts. This order was challenged by way of an appeal before the Resident Deputy Collector, Akola. The R.D.C. reversed the findings of the Rent Controller and found that the petitioners failed to prove their case. It is this order which is being challenged by way of this writ petition.

(2.) MR . Pophaly, the learned counsel for petitioners contended that the Resident Deputy Collector was not right in reversing the finding of fact which was recorded by the Rent Controller on the basis of the evidence. He has taken me through the relevant portion of the evidence and has invited my attention to the evidence of one Pandurang, a photographer. The photographer has admitted that he had taken the photographs of the shop in question on 6.12.1976. The photographs are Exhibit A-1, A-2 and A-3. The photographs show that there is a board inside the shop which appears to be 'Kedia Dal Mill' the firm which is being run by the respondent Nos. 2 and 3. According to Pophaly, Mahavirprasad deals in cotton bales, whereas the business of the respondent Nos. 2 and 3 is the sale and purchase of Dal and Oil products. Mr. Pophaly also invited my attention to the evidence of Mahavirprasad, who has admitted that he maintains the accounts regularly. In view of this admission on the part of Mahavirprasad, Mr. Pophaly contended that it was necessary for Mahavirprasad to have produced the accounts to show that he was continuously carrying on his business in the shop in suit and since he has not produced the accounts an adverse inference should have been drawn against him. He has relied on the decision reported in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others, AIR 1968 SC 1413. The portion which is material for our purpose reads as under :

(3.) MRS . Naik, counsel for the respondent No. 1 has invited my attention to the admission of Premji Bhimji (landlord) that there was a board of Shantilal on the shop. Mahavirprasad was carrying on this business in the name of Shantilal and Co. This goes to show that it was Mahavirprasad who was carrying on business. It appears that it was Mahavirprasad who was paying the telephone bills of the shop in question and the licence for carrying the business of cotton bales has also been placed on record showing that Mahavirprasad was carrying on the business during the period 1975-76. Sales-tax returns and the income-tax returns are also there on record showing that Mahavirprasad was carrying on business during the relevant period. Thus there is overwhelming documentary as well as oral evidence to support the contention of Mrs. Naik that it was Mahavirprasad who was in fact carrying on the business in the shop in question. Thus there is no substance in the contention of the petitioner that the shop was sublet by Mahavirprasad to respondent Nos. 2 and 3.