M.M.KUMAR, J. - (1.) THIS petition filed by the tenant-petitioner, namely, M/s Victor Industries and others, under Section 15(v) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act'), challenges the view taken by both the Courts below directing its ejectment broadly on two grounds. Firstly, it has been held that the tenant-petitioner has violated the terms of the rent deed, dated 01.05.1978, inasmuch as, Smt. Kailash Wati has been inducted as a tenant by virtue of partnership deed executed on 6.5.1978. It has further been found that there are material alternations effected in the building by the tenant-petitioner without express permission of the landlord- respondent.
(2.) THE learned Appellate Authority firstly, decided the issue of constitution of the tenant-petitioner firm, namely, M/s Victor Industries as on 1.5.1978. The aforementioned controversy was to be decided in view of the conflicting claim of both the parties. According to the landlord-respondent, the demised premises was taken on rent on 1.5.1978 and the rent deed was executed on 6.5.1978, whereas the stand of the tenant-petitioner is that the demised premises was taken on 6.5.1978 and on that day M/s Victor Industries was a partnership firm comprising of Hari Chand, Kailash Wati and her son Rakesh Kumar. The Appellate Authority concluded that the constituents of M/s Victor Industries was Hari Chand and Rakesh Kumar son of Krishan Kumar as on 1.5.1978 and they had inducted Smt. Kailash Wati as partner, which was unequivocally in violation of the terms and conditions of the tenancy. It would be necessary to refer to long para 7 of the judgment of the Appellate Authority, which closely scrutinises evidence and findings and the same reads as under :- "In order to adjudicate as to whether M/s Victor Industries sublet the premises to Shrimati Kailash Wati and her son Rakesh Kumar or not, I will have to decide at the first instance the constitution of M/s Victor Industries as on 1.5.1978 because according to the landlord the premises were taken on rent on 1.5.1978 and the rent note was executed on 6.5.1978. The stand of the respondents, on the contrary is, that the premises were taken on rent on 6.5.1978 and on that day M/s Victor Industries, a partnership firm, which constituted Hari Chand, Kailash Wati and her son Rakesh Kumar respondent No. 3. According to the rent note Ex.A.1 which was executed by M/s Victor Industries, it has been stated that M/s Victor Industires through Shri Hari Chand son of Shri Raj Ram and Rakesh Kumar son of Hari Chand son of Raja Ram resident of Ludhiana are the partners of the said M/s Victor Industries and M/s Victories through these partners have taken the premises on rent, i.e. one hall room, and two rooms adjoining with each other at the monthly rent of Rs. 500/- with effect from 1.5.1978 to 31.7.1978. It was also stipulated in the rent that the tenant will not co-opt any other partner in the partnership firm. This rent note was executed on 6.5.1978 and has been proved by the statements of two witnesses, Shri Mukandi Lal AW1, petition-writer and Shri Haqiqat Rai AW2 who is the marginal witness of the rent note. Two aspects now arises from this note, firstly, whether Victor Industries was a partnership firm consisting of Hari Chand and his son Rakesh Kumar or not ? and secondly whether M/s Victor Industries was a partnership firm consisted of Hari Chand and Rakesh Kumar son of Kewal Krishan. It is the case of the appellants themselves that Shri Hari Chand had no son by the name of Rakesh Kumar and this part of the case of the appellants appears to be correct because even from the statement of Banarsi Lal landlord it becomes clear that there was no person by the name of Rakesh Kumar son of Hari Chand. In this regard I would like to refer to the statement of Shri Banarsi Lal himself. He has stated that he has not seen Rakesh Kumar. He had no talk with Rakesh Kumar son of Hari Chand. He did not see Rakesh Kumar son of Hari Chand working in the defenant- firm. However, he had been seeing Rakesh Kumar son of Kewal Krishan respondent No. 3 working in the defendant firm. He cannot deny the suggestion that Hari Chand has no son by the name of Rakesh Kumar. RW3 Shri Hari Chand has stated that he has no son by the name of Rakesh Kumar and Rakesh Kumar has also appeared in the witness box and stated that he is the son of Shri Kewal Krishan. In view of this, it is clear that there was no person by the name of Rakesh Kumar son of Hari Chand and the recital in the rent note Ex.A.1 to the effect that Victor Industries had a partner by the name of Rakesh Kumar son of Hari Chand was erroneous and infact M/s Victor Industries had a partner by the name of Rakesh Kumar son of Kewal Krishan when the premises were taken on rent with effect from 1.5.1978 and when the rent note Ex.A.1 was executed on 6.5.1978. If this is proved that the constituents of M/s Victor Industries were Hari Chand and Rakesh Kumar son of Kewal Krishan as on 1.5.1978 to 6.5.1978, what would be the effect of these partners had inducted Smt. Kailash Wati as partner against the terms of the tenancy. The entire case of the appellants Victor Industries is that infact the premises were taken on rent on 6.5.1978 and not on 1.5.1978. For the sake of convenience it has been incorporated in the rent note that the tenancy would start from 1.5.1978 but infact the tenancy started from 6.5.1978 an the partnership deed Ex.PW4/A of M/s Victor Industries got produced by the respondent also shows that M/s Victor Industries was a partership firm consisting of Hari Chand, Kailash Wati and Rakesh Kumar son of Kewal Krishan but the tenancy of the demised premises started from 6.5.1978 it means that all the three partners of M/s Victor Industries and their firm M/s Victor Industries conduct in its business. In support of his contention, the counsel has drawn my attention to the statement of Shri Banarsi Lal landlord himself where he deposed that M/s Victor Industries is still doing the business in the premises in dispute and that Shri Hari Chand is one of the partner and still doing his business. He had a talk regarding the tenancy only on the day rent note was executed and he has given the possession of the factory on the same day i.e. 6.5.1978 to the defendant. The contention of Shri Parveen Garg may look alluring at the first instance but if we have a close scrutiny to the statement of Shri Banarsi Lal which statement of Shri Banarsi Lal has to be read in conjunctive with the documentary evidence and the statements of Shri Hari Chand and Shri Rakesh Kumar in this regard, one would come to different condition. There is no allegation in the petiton under Section 13 of the Act in which it was the specifically stated that the tenancy accompanied by the delivery on the possession and this part of the allegation of the landlord has not been specifically denied by the tenant. It has not been stated in the written statement that infact the tenancy started from 6.5.1978. Shri Hari Chand the signatory of the rent note appeared in the witness box as RW3 and he admitted in the cross examination by saying that the rent note was written on 6.5.1978 and that the tenancy started from 1.5.1978. He does not remember if he took the possession of the premises on 1.5.1978 or not. Rakesh Kumar RW7 also stated that Hari Chand had taken up the possession of the premises on 1.5.1978. The statement of Shri Banarsi Lal infact is against the terms or the rent note and cannot be given preference as desired by Shri Parveen Garg. However, the two statements of the partners of M/s Victor Industries i.e. namely Shri Hari Chand and Shri Rakesh Kumar read in the light of the terms of the rent note Ex.A.1 leaves no manner of doubt that the possession of the demised premises was given to M/s Victor Industries on 1.5.1978 and that the contention of Mr.Garg that the tenancy started from 6.5.1978 does not appeal to me." The learned Appellate Authority then went on to consider the effect of violation of stipulation in the rent deed prohibiting that the partners of M/s Victor Industries were not to induct any other partner in the partnership. Referring to the partnership deed dated 8.5.1978 (Ex. PW-4/1), that the business has been started by the signatories of the deed w.e.f. 6.5.1978. Smt. Kailash Wati, the inducted partner is shown to have share in the profit and loss to the extent of 45 per cent. Rakesh Kumar had also interest upto 50 per cent while Hari Chand had interest only upto 5 per cent. The partnership deed has been duly placed on record which shows that M/s Victor Industries had inducted Smt. Kailash Wati as a partner in violation of the terms and conditions of tenancy. The Appellate Authority further held that Hari Chand and Rakesh Kumar could not have inducted Smt. Kailash Wati as a partner. The induction of another partner had resulted in violation of the terms of the tenancy which clothe the landlord-respondent with right to seek eviction.
(3.) THERE was some controversy before the Courts below regarding nature of document dated 6.5.1978 (Exhibit A-1). In para 10 of the judgment, the Appellate Authority held that the tenancy had started from 1.5.1978 and after that it has to be concluded that Hari Chand has to be regarded as sole proprietor of the firm. It is on that premise that the Appellate Authority concluded that Hari Chand parted with the possession in favour of Rakesh Kumar son of Kewal Krishan and his mother.;