VINEET KOTHARI,J. - (1.) THIS second appeal has been filed by defendant tenant against the eviction decree passed by the first appellate court on 25/3/2008 reversing the judgment and decree of the learned trial court dated 30/8/2001, whereby, the learned trial court rejected the suit filed by the plaintiff respondent - landlord.
(2.) THE eviction suit was filed inter alia on the ground of default, bona fide necessity of the plaintiff respondent for his sons and change of business and subletting. Learned counsel for the appellant defendant Mr. Suresh Shrimali urged that the suit premises namely shop in question was originally let out by the plaintiff respondent to one Ramesh Patel, Proprietor of M/s Chikku Motors, however, later on said Ramesh Patel entered into partnership with present defendant namely Chittarmal and they commenced the business in the name of M/s Deepak Automobiles. He further submitted that said firm then commenced the business of sale of kerosene oil and since the original tenant Ramesh Patel continued to be partner of the said firm there was no subletting. He submitted that trial court had arrived at the findings in favour of defendant on the basis of relevant evidence which have been wrongly reversed by the first appellate court. He submitted that said Ramesh Patel had 20% share in the profits of the partnership firm and even though he had shifted and gone away to London (UK), it cannot be said that he sublet the suit premises to the present defendant - Chittarmal and Kailash Chandra, the other partners. He, therefore, submitted that substantial question of law arises in the present second appeal for consideration by this Court.
(3.) ON the side opposite, Mr. Dinesh Mehta, learned counsel for the plaintiff respondent vehemently urged that neither the said partnership firm in question was ever registered and, therefore, it does not have any legal entity and cannot sue in its own name as per Section 69 of the Contract Act but also in view of the fact that original tenant Ramesh Patel had shifted to London (UK) way back in the year 1985-86 and had never returned and the present defendant had commenced new business of sale of kerosene instead of automobile parts, which business was originally carried on by M/s Chikku Motors, and the present second appeal was also filed in the name of M/s Chikku Motors by Shri Chittarmal as power of attorney holder of said Ramesh Patel. He further submits that the first appellate court has clearly found that said partnership firm was a mere cloak or camouflage and there was no partnership between these parties with original tenant Ramesh Patel.;