G. RADHAKRISHNA RAO, J.

( 1 ) THE respondents in the eviction petition are the petitioners in this revision petition. The landlady is the respondent. The landlady filed the present eviction petition in the year 1984 as she was prevented from prosecuting the proceedings in a Civil Court by virtue of the striking down of provisions of Section 32 (b) of the A. P. Buildings (Lease, Rent and Eviction) control Act, (hereinafter referred to as the Act ) as ultra vires by the supreme Court.

( 2 ) THE case that is set up by the landlady is that she has let out the suit premises to only Jamunadas, son of Popatlal Parekh and not to any Firm and the premises has been leased out and it is exclusively in occupation of the 2nd respondent in the eviction petition, who is second petitioner herein, contrary to the terms agreed to between the parties. She filed O. S. No. 1600 of 1976 on the file of II Asst. Judge, City Civil Court, Hyderabad only against Jamuna Das and during the pendency of the suit, Smt. Vanita v. Parekh, the 2nd petitioner herein filed an application under Order 1, Rule 10 C. P. C. on the ground that herself and Jamunadas are both partners of the firm peruel Toys Agency . After due contest that petition was dismissed holding that she is not a necessary and proper party and that she has not made out a case that the premises was let out to the firm. That finding has become final. Apart from other grounds this eviction petition has been filed. The learned Rent Controller found that a case of sub-letting was proved by the landlady and, therefore, ordered eviction. On appeal that finding was confirmed. The application for filing additional documents was also rejected.

( 3 ) IT is mainly contended in this revision petition that the concurrent finding of fact that the premises was sub-let is not correct. Ex. P-1 is the rental deed. Clause I of Ex. P-1 reads that the lessee has agreed to take on lease for opening a show room viz. , paruel Toys Agency . Clause 4 specifically prohibits the grant of any sub-lease by the lessee stating "the lessee shall not make any alterations in the above premises except with the permission of the lessor nor shall he sub-let the above premises or deliver the possession thereof to any person other than the lessor . There is no recital in Ex. P-1 indicating that the premises was taken on lease on behalf of the firm consisting of two partners. On the other hand, it discloses that it was taken only in his individual capacity. When a clear prohibition is made in the agreement about subletting the premises, the question of implied consent or waiver does not arise.

( 4 ) IN this case the 1st petitioner was not examined. It is he that has entered into the agreement with the landlady and signed Ex. P-1. The 2nd petitioner herein is examined as R. W-1, That itself shows that the first petitioner has r?o interest in the business after 1975 after he retired from the partnership in the year 1975. R. W-1 deposed that the 2nd petitioner herein alone is running the business. Whether the petitioners were partners or not or were tunning a business prior to 1975 or subsequent thereto will not alter the situation as the parties have expressly agreed that the lease is in favour of one individual only i. e. , the 1st petitioner. The fact of payment of rent by cheques signed by one of the partners of the firm will not create any lease in favour of the firm or cannot be construed that the landlady has got knowledge about the partneship firm. The lease is from the year 1972. The first petitioner left for Madras in the year 1975 and the suit was filed in the year 1976. So, right from the year 1976 when the landlady is agitating through one Court or the other for eviction of the tenant, it cannot be said that by lapse of time the landlady has accepted the sub-lease.

( 5 ) IN this connection it is relevant to notice the provisions of section 10 (2) (ii) (a) and (b) of the Act which are as follows :"section 10 (2) :a landlord wh

Click Here to Read the rest of this document