HELPER GIRDHARBHAI versus SAIYED MOHMAD MIRASAHEB KADRI AND OTHERS

Citation: [1987] 3 S.C.R. 289 · Decided: 06-05-1987 · Supreme Court of India · Bench: SABYASACHI MUKHERJI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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HELPER GIRDHARBHAI 
A 
v. 
SAIYED MOHMAD MIRASAHEB KADRI AND OTHERS. 
MAY 6, 1987 
[SABYASACHI MUKHARJI AND S. NATARAJAN, JJ.) 
B 
:-y 
Bombay Reriis, Hotel & Lodging House Rates Control Act; 1947: 
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ss. 13 and 29-Tenant-Eviction of on ground of subletting-Demised 
premises used for partnership business-Lessee in legal possession-
Held not enough to prove subletting. High Court-Whether could 
reappraise evidence in revision. 
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Partnership Act, 1932: ss. 4 & 6--Partnership-Determination 
of-Whether mixed question of law and fact. 
Sub-section (2) of s. 29 of the Bombay Rents, Hotel and Lodging 
House Rates Control Act, 1947, as it stood at the relevant time, barred 
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further. appeal against any decision in appeal under sub-s. (1), and 
instead conferred revisionary powers on the High Court in such a case. 
The appellant-tenant was a partner in firm •A' which was carry-
ing on business or manufacturing cloth in the suit premises. That 
business was closed on October 4, 1960 and a new firm 'B' came into 
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being to run the business in manufacturing and selling neon sign tubes. 
On October 13, 1960 a partnership deed was executed by six persons as 
partners or the new firm. The document was silent as to where the 
business was started. On or about October 24, 1960 another partner-
ship deed was executed by these six persons and the appellant and his 
father with an agreement to share only profits to the extent of 3 paise in 
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a rupee. After the death or the appellant OD February 1, 1961 a new 
partnership deed was executed by ttie remaining seven partners with 
the same terms and conditions. 
The respondent·landlord filed eviction suits against the appellant-
defendant alleging that the premises which were leased to the appellant 
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for manufacturing cloth in the name of firm •A' had been unlawfully 
sublet in major part to defendants 2 to S who were running business in 
partnership for manufacturing neon signs. The appellant contended 
that firm 'A' was not the tenant of the suit premises, that his father was 
the original tenant with whom he had joined in business as a partner in 
firm 'A', that the suit premises were to be used Cor. business and he . H 
289 
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A 
290 
SUPREME COURT REPORTS 
[1987] 3 S.C.R. 
could use it for any business, that he had joined firm 'B' in partner-
ship, that the suit premises was with him and defendants 2 to 5 had rmt 
acquired any tenancy rights in the suit premises, and that he had filed a 
civil suit to dissolve the partnership, and to take account which was 
later decreed in his favour and affirmed in appeal. 
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The trial court held that there was unlawful subletting, and 
decreed the suit for possession. The appellate court, Court of Small 
Causes, found that the appellant was only carrying on the business in 
partnership with defendants 2 to 5 in the name of firm • B' in the suit 
premises, and held that there was no subletting, change of user, and 
breach of terms of tenancy. The High Court in revision on a reappraisal 
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of evidence took the view that the partnership was a camouflage and 
was never acted upon, and in fact and in reality the partnership firm 
was a sub-tenant of th.e appellant. 
In the appeal by special leave it was contended for the appellant 
that there was a genuine partnership which was acted upon and this 
D finding of the appellate court could not have been reversed by the High 
Court in revision under s. 29(2) of the Act. For the respondents it was 
contended that the original first partnership deed did not mention that 
the appellant or his father was a partner, that it was in the stcond 
partnership deed that the appellant and his father joined the firm, that 
there was a gap of time when th.ere was nser by the partnership firm of 
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the premises in question when the appellant was not a member of the 
firm, which fact was not considered by the appellate court, and that the 
partnership deed was a camouflagt>. 
Allowing the appeal, 
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HELD: 1. The High Court exceeded its jurisdiction under 
s. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control 
Act, 1947 in reversing the view of the appellate court. [30SBC] 
2.1 The distinction between an appeal and revision is a real one. 
A right to appeal carries with it a right of re-hearing on law as well as 
G fact, unless the statute conferring the right to appeal limits the 
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re-hearing in some way. The power to hear a revision is genera

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