Dismissed

Mohammadia and Co., v. Saleem Bin Amar Jaidi

Telangana HC11 Dec 2013CRP/2145/2013

Case brief

AI extract

What is this about?

This court dismissed a Civil Revision Petition challenging lower courts' findings. The lower courts ruled that the alleged partnership between tenants was not proved and the lease terminated upon the proprietor's death. Consequently, written owner consent for subletting was mandatory and absent, so the eviction plea was upheld.

What did the court decide?

Civil Revision Petition dismissed with no costs. Miscellaneous petitions pending petition are closed.

Mohammadia and Co., Vs Saleem Bin Amar Jaidi — Landlord and Tenant | Telangana HC (2013)

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HONOURABLE SRI JUSTICE P.NAVEEN RAO

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CIVIL REVISION PETITION NO.2145 OF 2013

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DATE: 11-12-2013

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Between :

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Mohammadia and Co., a shop through its Sole Proprietor, Abdul Aziz (died) and others

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… Petitioners/appellants

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And

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Saleem Bin Amar Jaidi and two others.

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… Respondents/respondents

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This Court made the following:

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HONOURABLE SRI JUSTICE P.NAVEEN RAO

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CIVIL REVISION PETITION NO.2145 OF 2013

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ORDER:

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Petitioners are the appellants in R.C.A.No.1 of 2001 and respondents 1 and 2 in R.C.No.10 of 1997. Case of the first respondent is that first petitioner is the tenant in Mulgi bearing number 8–1–64 situated at Ahmadi Bazaar, Nizamabad. Respondents 2 and 3 were owners of the said premises. In the year 1994, 1^st respondent purchased said premises from respondents 2 and 3. Alleging that first petitioner is not vacating the premises and contrary to terms of lease agreement, sublet the premises to 2^nd petitioner, first respondent filed R.C.No.10 of 1997. Stand of the petitioners was, 2^nd petitioner is partner of first petitioner and that there was no subletting. Respondents 2 and 3 filed R.C.No.20 of 1994 for eviction of petitioners. Said RC was dismissed for default by order dated 17-091996. First petitioner filed R.C.No.29 of 1994 against respondents 2, 3 and one another. Later first respondent was also added as respondent No.4. This R.C., was to deposit the rent from June 1994.

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2. Heard learned counsel Sri Dhananjay for petitioners and Sri. Vedula Vekataramana for respondents.

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3. Learned counsel for the petitioners contend that there existed partnership between first and second petitioners. Respondent did not deny existence of the partnership and burden lies on the respondents. Learned counsel further submits that it is not necessary that partnership entered by the petitioners should be with the consent of the owner of the premises and there existed partnership deed between petitioners 1 and 2. In support of his contention counsel placed reliance on the decision of this Court in the case of Ghulam Hussain

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(died) and others vs. D.Raj Kuma r^[1] . Learned counsel further submits that scope of Section 8 of A.P.Building (Lease, Rent and Eviction) Control Act, 1960, is different. On burden of proof, learned

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counsel placed reliance on the decision of this Court in the case of P.Rajanna v. K.Lalitha Reddy @ Chinnamma Devi and anothe r^[2] . He submits that earlier he was doing Tea business and later shifted to kirana business.

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4. Learned Senior counsel, Vedula Venkataramana, contends that the C.R.P. is not maintainable. He submits that Mohammadia and Company was the sole proprietary concern of Abdul Aziz. Consequent to his demise, the proprietary concern ceased to exist and, therefore, after the demise of Abdul Aziz, the lease does not subsist. He further submits that in the counter filed in R.C.No.10 of 1997, petitioners did not plead about existence of partnership between petitioners 1 and 2. First respondent did not enter the witness box though he was principal tenant. There was no pleading and no evidence brought on record to establish the so-called partnership.

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5. The question for consideration by courts below was whether first petitioner violated lease agreement by subletting. The defence of first petitioner was that there was no subletting but 2^nd petitioner was business partner of first petitioner. For this purpose the relevant document is deed of partnership. Petitioners claimed that there was deed of partnership dated 31^st of December, 1993. It was a categorical finding of courts below that no such plea was raised by the petitioners in R.C.No.29 of 1994 and in the counter affidavit filed in R.C.No.10 of 1997. Filing of R.C.No.29 of 1994 by 1^st petitioner alone was also considered against petitioners. The fact that 1^st petitioner did not stand as a witness also viewed against the petitioners. In the earlier round of litigation Ex. B-2 was not produced. The Courts below have noticed lot of contradictions in the evidence of petitioners and the documents in their support and disbelieved the version of the petitioners that there was no subletting and that 2^nd petitioner is a business partner of first petitioner.

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6. In the appeal against R.C.No.10 of 1997, Senior Civil Judge, Nizamabad, held that petitioners miserably failed in establishing existence of the partnership deed and that second petitioner was carrying on business in the premises on sublease, but not as partner. As held by the Courts below, in the absence of clear proof that 2^nd petitioner is partner of first petitioner, a written consent by the owner of the property to admit subletting is mandatory. As rightly contended by the Senior Counsel, consequent to the demise of sole proprietor, the proprietary concern cease to exist and consequently the lease gets automatically terminated as also the alleged partnership between the petitioners 1 and 2.

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7. No endeavor is made by petitioners to upset concurrent finding of fact by the Courts below. I am not persuaded to dislodge the concurrent finding of fact by the Courts below. The decisions relied by the counsel for petitioners do not come to the aid of the petitioners. I see no merit in the contentions of learned counsel for petitioners and C.R.P. is liable to be dismissed.

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8. Accordingly, the Civil Revision Petition is dismissed. No costs. Miscellaneous petitions if any pending in this petition shall stand closed.

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JUSTICE P.NAVEEN RAO

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Date: 11-12-2013 kkm

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HONOURABLE SRI JUSTICE P.NAVEEN RAO

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CIVIL REVISION PETITION No.2145 OF 2013

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Date: 11-12-2013