J. R. CHOPRA, J. - (1.) THIS is an appeal against the judgment of the learned Additional District Judge No. 1, Jodhpur dated November 5, 1980 whereby the learned lower court has decreed the suit of the plaintiff-respondents against the defendant-appellants for eviction as also for the payment of the arrears of rent and mesne profits. The defendants have been ordered to hand over the vacant possession of the suit premises to the plaintiffs within two months from the date of the decree.
(2.) A few facts necessary to be noticed for the disposal of this appeal briefly stated are that the suit premises fully described in para 2 of the plaint belonged to Smt. Gopi Lal out these premises to defendant No. l Pukhraj on a rent of Rs. 200/- per month. The tenancy started from June 1, 1973. It is alleged that these premises were later on sold by Smt. Gopi to the plaintiffs for a sum of Rs. 20,000/- through a registered sale deed dated 12. 11. 1974. Smt. Gopi sent a registered notice of sale to Pukhraj on 16. 11. 1974 but that was received back as refused. The plaintiffs determined the tenancy of defendant No. 1 Pukhraj and gave him notice to hand over the vacant possession of the suit premises but he has failed to do so and therefore, the plaintiffs filed the suit in the court of learned District Judge, Jodhpur pleading, inter alia, that the rent is due from the defendants from 12. 11. 1974. and that the defendant No. l Pukhraj has sub-let the suit premises to defens No. 2 and 3rd without permission of the plaintiffs. The plaintiffs required the suit premises reasonably and bonafide for their own use and occupation. It was also averred that the plaintiffs will be put to greater inconvenience then the defendants if the vacation of the suit premises is not decreed against the defendants. The plaintiffs claimed a sum of Rs. 7200/-from the defendants as arrears of rent and Rs. 630/- as interest thereon and further claimed that for use and occupation, they should be allowed mesne profits at the rate of Rs 400/- per month. The suit was filed on 9. 11. 1977. Defendant No. 1 and Defendants No. 2 and 3 filed their separate written statements pleading, inter-alia, that the suit premises were taken on rent by defendant No. 1 Pukhraj as a partner of the firm M/s Asha Iron Traders and it was never taken on rent in his personal capacity. It was submitted that the premises were earlier in the tenancy of M/s Iron Industrial Corporation of which Mithalal Prajapat was a partner and when that firm was closed, its sheds were sold to the defendants firm M/s Asha Iron Traders for a sum of Rs. 5,000/ -. It was further submitted that Rs. 4,800/- were paid to the plaintiffs on behalf of defendant No. 2 on 23. 3. 1973 and 21. 5. 1973 through two separate cheques bearing No. 00155 and 001554 drawn on the Central Bank of India, Jodhpur and in this manner, two years' rent was paid in advance. It is alleged that defendant No. l Pukhraj retired from this Firm M/s Asha Iron Traders on 30. 6. 1974 and in his place, defendant No. 3 Ghanshyamdas was inducted as a partner whereas the other two partners Smt. Asha Phophalia and Smt. Sajani Devi Mohata continued the partnership. On 10. 12. 1975, one of the partners viz. , Smt. Sajani Devi Mohata died and her son Ashok Kumar was admitted to the partnership. The defendants denied that Smt. Gopi has sold this shop to the plaintiffs because they never received any notice in respect thereof and, there fore, according to them the plaintiffs were not entitled to determine their tenancy. It was also averred that the rent from 1. 6. 1974 to 3. 5. 1975 was paid in advance and thereafter, the rent for the months of June and July, 1975 was through money order but it was refused. Reasonable and bonafide necessity pleaded by the plaintiffs was challenged. The plaintiffs' assertion that the plaintffis would be put to greater hardship if the suit premises is not decreed for eviction was also challenged. The defendants have submitted that they are not defaulters. The defendant No. 1 Pukhraj has submitted that he retired from the partner ship of M/s Asha Iron Traders on 30. 6. 1974 and, therefore, no notice was ever received by him regarding the sale of the property by Smt. Gopi. He has further submitted that the partnership continued even after his retirement from the partnership firm M/s Asha Iron Traders. On the basis of these pleadings of the parties, in all 12 issues were framed in this case. The learned lower court after recording the evidence and after hearing the parties, came to the conculsion that defendant No. 1 Pukhraj took the shop on rent from Smt. Gopi in his persona! capacity and not as a partner of the firm M/s Asha Iron Traders. The learned lower court has further held that Smt. Gopi has sold the suit premises to the plaintiffs and a valid notice regarding the sale of the suit premises was sent to defendant No. l Pukhraj. The learned lower court has further held that defendant No. 1 Pukhraj was in arrears of rent and, therefore, the rent was determined under s. 13 (3) of the Rajasthan Premises, (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the 'act') and he was ordered to deposit the rent month by month by the fifteenth of the, next follwing month but he has failed to do so. The learned lower court has decreed the suiting of the plaintiffs against the defendants for the arrears of rent. Mesne Profits have been ordered to be paid at the rate of Rs. 200/ per month. The contention of the defendants that defendant No. 1 Pukhraj took the suit premise on rent as a partner of M/s Asha Iron Traders has been rejected. It has been held that the tenancy of the defendants has been validly determined and, therefore, the suit of the plaintiffs has been decreed against the defendants as aforesaid. Of course, the learned lower court has held that the plaintiffs have failed to prove their reasonable and bonafide necessity, it has further held that they have failed to prove the point of comparative hardship in their favour but as the tenant has failed to deposit the amount of the arrears of rent and has failed to deposit it month by month and that he has sub-let the suit premises to defendants No. 2 and 3, it has decreed the suit of the plaintiffs against the defendants and hence, this appeal. I have heard Mr. R. K. Thanvi, learned counsel for the defendant appellants and Mr. P. C. Mathur, learned counsel for the plaintiff-respondents. In this case, the main question that crops up for decision is whether the suit premises were let out to defendant No. 1 Pukhraj in his personal capacity or as a partner of the Firm M/s Asha Iron Traders. The learned lower court has of course held that the suit premises were let out to defendant No. 1 Pukhraj in his personal capacity and not as a partner of the Firm M/s Asha Iron Traders. The most important document which can be referred in this respect is the rent note Ex. 7. It has been executed by defendant No. 1 Pukhraj in these terms : Fdjk;kukek ,d esa iq[kjkt oyn Jh y{ehukjk;. k th dkse ekgs'ojh eksnh lkfdu tks/kiqj fbdkuk ikvusj vklk vk;ju Vsmlz tks/kiqj okys us rsgjhj rdehy dj fn;k cgd Jhefr xksjh tksts Jh ekaxhyky th tkfr dqegkj lkfdu tks/kiqj fbdkuk ljnkjiqjk jksm+ ,] dckfm+;ksa dh efltn ds ikl jgus okyh ds rfkk okds 'kgj tks/kiqj ljnkjiqjk jksm+ , dckfm+;ksa dh efltn ds ikl ----------** From the above narration of the rent-deed, it is crystal clear that defendant No. 1 Pukhraj has executed this rent note as a partner of the firm M/s Asha Iron Traders. Although, he has used the words "mai" or "mere" later on but they must relate to the original assertions contained in the rent note If the rent deed had been executed in his personal capacity, there was no question of making any reference of his being a partner of M/s Asha Iron Traders. He could have described himself as Pukhraj son of Laxminarain caste Maheshwari Modi resident of Sardarpura Jodhpur. This fact is further corroborated from the fact that earlier the suit premises were in possession of Shri Mithalal Prajapati as a partner of M/s Iron industrial Corporation. When that firm was closed, the sheds of that firm were sold to M/s Asha Iron Traders and the suit premises was also taken on rent by M/s Asha Iron Traders. The payment of Rs. 5-000/- for purchasing the sheds of M/s Iron Industrial Corporation by M/s Asha iron Traders was made by M/s Asha Iron Traders M/s Iron Industrial Corporation. D. W. 2 Mithalal has proved its bill Ex. A. 2, which bears the signatures of defendant No. 1 Pukhraj at place A to B. This bill has been issued in the name of M/s Asha Iron Traders. The payment of this bill was made by M/s Asha Iron Traders and the entries of its accounts books have been proved by D. W. I. Ghanshyamdass Phophalia. D. W. 2 Mithalal, in his cross-examination has stated that defendant No. 1 Pukhraj negotiated the bill with him and told him that when the negotiations will be finalised, the bill will be prepared in the name of M/s Asha Iron Traders. Smt. Gopi accepted Rs. 4800/-as two years' advance rent from the defendants and executed the receipt Ex. A. 1 which has also been proved by D. W. 1 Ghanshyamdas and D. W. 2 Mithalal Prajapati. Smt Gopi who has been examined as P. W. 4 by the plaintiffs who too has also admitted that Ex. A. 1 was executed by her and it bears her signa-turs at place A to B. in this receipt also the tenant has been described as Pukuraj son of Laxminarain by caste Maheshwari Modi resident of Jodhpur, partner of M/s Asha Iron Traders. D. W. 1 Ghanshyamdas has also stated that this amount of Rs. 4800/- was paid from the accounts of M/s Asha Iron Traders through two separate cheques. Although, the entries in the accounts books regarding these two cheques have not been proved but Ex. A. 1 stands to be an admitted document by Smt. Gopi and has also been proved by D. W. 1 Ghanshyamdas and D. W. 2 Mithalal and, therefore, it has to be accepted that this amount was paid by M/s Asha Iron Traders, which clearly shows that the suit premises Where taken on rent for M/s Asha Iron Traders and the rent note Ex. 1 and the receipt Ex. A. 1 were executed by defendant No. l Pukhraj as a partner of the firm M/s Asha Iron Traders. This contention of the defendant-appellants has been Calegencally admitted by P. W. Ahmed Bhai himself in his court statement wherein he has stated that the premises were let out by Smt. Gopi to M/s Asha Iron Traders through defendant No. 1 Pukhraj and that when these premises were sold to them ( i. e. Ahmed Bhai ) and his companions then Smt. Gopi told them that M/s Asha Iron Traders is her tenants. Now, if she does not support this contention in her testimony before the learned lower court, it goes to prove that she is a lier because the plaintiff himself negatives her testimony and he has categorically admitted that Smt. Gopi told him that she has let out the suit premises to M/s Asha Iron Traders. Even, in his examination-in-chief, P. W. 1 Ahmed Bhai has stated that M/s Asha Iron Traders, who are his tenant, has taken on rent one plot behind Umed Hospital (Janana Hospital ). The notice determining the tenancy was also issued to defendants No. 2 and 3 as well as defendant No. l as partners of M/s Asha Iron Traders. P. W. 1 Ahmed Bhai in his cross-examination has stated that when he purchased this plot, M/s Asha Iron Traders was carrying on its business in these premises. According to him, defendant No. 1 Pukhraj was doing the business of M/s Asha Iron Traders. Even he admits the signatures of Smt. Gopi on Ex. A. l at place A to B. It was suggested to him that Smt. Gopi has accepted the advance rent upto May 3l, 1975 to which, he has replied that he does not know whether she has taken this advance or not ?
(3.) P. W. 3 Meghraj who has attested Ex. 7 (rent note) has also been examined. He has stated that the rent note Ex. 7 was executed by defendant No. 1 Pukhraj on behalf of M/s Asha Iron Traders as its partner. According to him the rent note Ex. 7 bears the signatures of Pukhraj at place C to D. It is true that P. W. 5 Mangilal who is the husband of Shri. Gopi has stated before the learned lower court that defendant No. 1 Pukhraj alone has taken the suit premises on rent in his personal capacity but that contention does not hold good in the light of his over-whelming evidence. Simply because defendant No. 1 Pukhraj has used the word "main" or "mere" to describe his capacity in the rent not after his initial description will not go to prove that this "main" or "mere" relates to his personal capacity and it does not state to his capacity as a partner of the firm M/s Asha Iron Traders. I, therefore , disagree with the finding of the learned lower court that the suit premises were taken on rent by defendant No. 1 Pukhraj from Smt. Gopi in his personal capacity. Actually, defendant No. 1 Pukhraj has taken the suit premises on rent as a partner of the firm M/s Asha Iron Traders. Even if he has retired from the firm M/s Asha Iron Traders, the other partners carry on the business of that firm and, therefore, it is not a case of subletting by defendant No. 1 to defendants No. 2 and 3. The partnership firm is merely a compendious name for the partners constituting it and it is only by virtue of the provisions of 0. 30 of the C. P. C. that a firm can sue and be sued in its own name without the partners being impleaded eo nomine but in fact, if the premises have been taken on rent in the name of the firm then all the partners of the firm become the tenants of that premises. In this connection, reliance can be placed on M/s Chhotelal Pyarelal Vs. Shikhar Chand (1 ). Reliance has also been placed on a decision of the Delhi High Court in Kanahiya Lal Vs. Labhuram (2) wherein it has been held as under: " Subletting essentially entails induction of a third person into the leased premises. But when a firm becomes a tenant its partners also become tenants since a firm is only a compendious name of the partners. As such when the premises are allotted to one of the partners, on the dissolution of the firm there will be no subletting. It is true that defendant No. 1 Pukhraj has retired from the firm and it was defendant No. 1 Pukhraj who has taken the suit premises on rent on behalf of the firm but his retirement does not dissolve the firm. In Devji Goa V. Tricumji Jiwandas (3), it has been observed as follows: " Where a partnership with a firm has gone on as a living concern continuously since the time it was started, the separation or death of some members of the firm, others their sons or grandsons-taking their place cannot amount to dissolution as the other partners have presumably agreed to treat as partners the remaining members of the firm or such members as were added to it from time to time. " Thus, simply because defendant No. 1 Pukhraj retired, the other two ladies inducted Shri Ghanshyamdas as partner and continued the business in the same name, it does not mean that the old firm has been closed and a new firm has come into existence. ;