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Andhra Pradesh High Court
Judges : S.DASARADHA RAMA REDDY
Ghulam Hussain - Appellant
Versus
D.Raj Kumar - Respondent
Decided On : 11-28-96
Andhra Pradesh Buildings Control Act, 1960 – Section 10 – Eviction – Allegation – Tenant - Learned Counsel for petitioners contended that taking another person as partner and carrying on partnership business in suit premises does not amount to sub-letting and that rents were paid in name of tenant and no permission is required from landlord to take another person as a partner - He cited two decisions in Apparel in cross examination it is not elicited that petitioner is occupying any other non-residential building which is his own or to possession of which he is entitled to - In two Courts below both sides proceeded on assumption that landlord has no other non-residential premises and this fact was never in dispute - But during arguments, in this revision learned counsel for petitioners has made a feeble attempt to argue that there is no evidence to show that landlord has no other non residential premises of his own or possession of which he is entitled to learned Counsel for respondent submitted that it was never case of petitioner that landlord has some other non-residential premises available for occupation and that tenant cannot take advantage of mistake in recording of evidence - There is no merit in petitioners plea as fact that landlord had no other non-residential premises of his own was never in dispute – Then learned Counsel for petitioners contended that if landlord wants to augment his income he can ask tenant to increase rent and this plea was accepted by learned Rent Controller - There is absolutely no merit in this plea it is not for tenant to advise his landlord a to how to augment his income and it is also common knowledge that increase in rent is not equivalent to quantum of income which landlord gets by exploiting premises in best way possible – Petition dismissed
( 1 ) THE 1st Petitioner is the tenant in a non-residential premises. The landlord has filed an eviction petition on the grounds of sub-letting and bona fide requirement. The learned Rent Controller dismissed the eviction petition on both the grounds and the Appellate Court. , allowed the appeal on both the grounds. The allegation of sub-letting was that the petitioner No. 1 has taken another person i. e. 2nd petitioner as a partner, and carrying on partnership business in the demised premises, that he is not physically present in the premises throughout the year and that he is not taking any active part in the business. The 2nd ground namely personal requirement is that the respondent landlord is doing the present business in a rented premises along with another partner, that he has no other premises and that he desires to do business in sweets in the suit premises.
( 2 ) URING the pendency of the CRP, the 1st petitioner-tenant died on 11-7-1993 and his son has been brought on record as L. R.
( 3 ) MR. Dilip Kumar Shiradkar, the learned Counsel for the petitioners contended that taking another person as partner and carrying on partnership business in the suit premises does not amount to sub-letting and that the rents were paid in the name of the tenant and no permission is required from the landlord to take another person as a partner. He cited two decisions in Apparao vs. Hanumayamma and Nagender vs. Muralidhar wherein it was held that taking a partner and doing business in the name of partnership in the rented premises does not amount to sub-letting. These two decisions fully support the case of the petitioners.
( 4 ) MR. C. SUBBA Rao, the learned Counsel for the respondent-landlord on the other hand contended that the tenant had never exercised his right in the premises and he was never in the country and, therefore, this amounts to sub-letting. I do not agree with him. There is no evidence on record to show that the tenant had assigned the tenancy in favour of the 2nd petitioner. There is no rule that the tenant should always be present physically at the demised premises. As long as he is accountable to the landlord and pays rents in time and abides by the various conditions in the lease deed, if there is a written one, he does not cease to be tenant. The other reason given by the appellate court that no permission was taken from the landlord to start the partnership business is also untenable. There is no requirement under law to take permission of the landlord by the tenant to take a partner. In view of the two decisions referred to above, the lower appellate Court is not correct in holding that the tenant has sub-let the suit premises.
( 5 ) BUT, this itself does not help the petitioners. He has to still get over the second ground, namely bona fide personal requirement. No material is placed by either party as to who is carrying on the business in the suit premises after the death of the tenant on 11-7-1993. But, as per Clause-11 of the Partnership deed (Ex. P-1), in the event of death of a partner, the partnership is not dissolved but may be carried on with the surviving partner and the L. Rs. of the deceased partner. So, it has to be assumed that the old partnership is continuing with the L. Rs. of the deceased partner and doing business at the demised premises. The respondent says in the eviction petition that he desires to do business in sweets at the suit premises. But, he has not stated that he does not own anyother premises either residential or non-residential. In the counter, there is a general and vague allegation that the landlord must show that he has no other non-residential premises. But in the evidence, the landlord stated that he does not possess any other residential premises apart from the suit premises. As per Sec. 10 (3) (a) (iii) of the Andhra Pradesh Buildings (Lease, rent and Eviction) Control Act, 1960 (for short the Act), the landlord has to prove that he has no othe
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