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PETITIONER: HELPER GIRDHIARBHAI

       Vs.

RESPONDENT: SAIYED MOHMAD MIRASAHEB KADRI AND OTHERS.

DATE OF JUDGMENT06/05/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) NATRAJAN, S. (J)

CITATION:  1987 AIR 1782            1987 SCR  (3) 289  1987 SCC  (3) 538        JT 1987 (2)   599  1987 SCALE  (1)1235  CITATOR INFO :  RF         1988 SC 852  (8)

ACT:     Bombay  Rents, Hotel & Lodging House Rates Control  Act, 1947:  ss. 13 and 29--Tenant--Eviction of on ground of  sub- letting--Demised     premises    used    for     partnership business--Lessee  in  legal possession-Held  not  enough  to prove  subletting.  High  Court--Whether  could   reappraise evidence in revision.     Partnership Act, 1932: ss. 4 & 6---Partnership--Determi- nation of--Whether mixed question of law and fact.

HEADNOTE:     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 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 carrying  on  business of manufacturing cloth  in  the  suit premises. That business was closed on October 4, 1960 and  a new firm ’B’ came into being to run the business in manufac- turing  and selling neon sign tubes. On October 13,  1960  a partnership deed was executed by six persons as partners  of the new firm. The document was silent as to where the  busi- ness  was  started.  On or about October  24,  1960  another partnership  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 a rupee. After the death of the appellant on February 1, 1961 a new partnership  deed was  executed by the 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 for manufacturing cloth in the  name of  firm  ’A’ had been unlawfully sublet in  major  part  to defendants  2 to 5 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

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were to be used for business and he 290 could  use it for any business, that he had joined firm  ’B’ in  partnership,  that the suit premises was  with  him  and defendants  2105 had not acquired any tenancy rights in  the suit  premises, and that lie had filed a civil suit to  dis- solve  the partnership, and to take account which was  later decreed in his favour and affirmed in appeal.     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 reapprais- al  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 the  appel- lant.     In the appeal by special leave it was contended for  the appellant  that  there was a genuine partnership  which  was acted upon and this 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 second  partnership deed that the appellant and  his  father joined the firm, that there was a gap of time when there was user  by  the partnership firm of 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 camouflage. Allowing the appeal,     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. [305BC]     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 fact, unless the statute  confer- ring the right to appeal limits the re-hearing in some  way. The power to hear a revision is generally given to a superi- or  court  to ensure that the principles of  law  have  been correctly  borne in mind, that the facts have been  properly appreciated  and a decision arrived at taking  all  material and relevant facts in mind, that the decision is such  which a  reasonable man could have arrived at and which  does  not lead to a miscarriage of justice. [301H-302A; 303EF] 291     2.2  The Court must guard itself against  permitting  in the  guise  of revision substitution of one view  where  two views  are  possible  and the appellate court  has  taken  a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute  its own view with that of the courts below because it  considers it  to be a better law. The fact that the High  Court  would have  taken a different view is wholly  irrelevant.  Whether there  was a partnership or not is a mixed question  of  law and  fact, depending upon the varying circumstances in  dif- ferent cases. [303FG; 304E]     Hari  Shankar  v. Rao Girdhari Lal Chowdhiry,  [1962]  1 Suppl. SCR 933; Puranchand v. Motilal,  [1963] Suppl. 2  SCR 906;  Krishnawati  v. Hans Rai, [1974] 2  SCR  524;  Phiroze Bamanji  Desai v. Chandrakant M. Patel & Ors., [1974] 3  SCR 267; Bhai Chand Ratanshi v. Laxmishankar Tribhavan, [1982] 1

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Rent Control Journal 242; M/s Kasturbhai Ramchand Panchal  & Brothers  and Others v. Firm of Mohanlal Nathubhai and  Oth- ers, AIR 1969 Gujarat 110 and Punamchandra Revashankar Joshi v. Ramjibhai Maganlal. 7 Gujarat Law Reporter (1966) at page 807, referred to.     In the instant case, the ’Court of Small Causes  consid- ered the principles of law, evaluated the evidence and  held that there was in fact and in law a partnership. Such a view was  not  an impossible one or a  perverse  one.  Therefore, there  was  nothing  that could be done about  such  a  view within the ambit and scope of the revisional powers under s. 29(2)  of the Act and the High Court could not have  substi- tuted  its own finding for the one reached by the  appellate court. [404H-305A; 304D]     3. Whether the ingredients of partnership as embodied in the  law  of partnership were there or not in  a  particular case must be judged in the fight of principles applicable to partnership, that is (1) there must be an agreement  entered into by all the persons concerned, (2) the agreement must be to  share  the profits of a business, and (3)  the  business must  be carried ou by all or any of the  persons  concerned acting  for  all.  Sharing of profits  and  contributing  to losses are not the only elements in a partnership, existence of agency is essential. [296FG; 304G; 304E]     Chimanram  Motilal and Another v. Jayantilal  Chhaganlal and  another,  AIR 1939 Bombay 410 and Mohammed  Musa  Sahib (dead) and Others v. N.K. Mohammed Ghouse Sahib and Another, AIR 1959 Madras 379, referred to. In the instant case, judged by these principles it could not be said 292 unequivocally that there was no partnership. The partnership deeds gave the appellant the right to share the profits’ and made  him an agent for certain limited purposes of the  firm and there was evidence that the partnership deeds were acted upon.  It  is  true that the bank accounts were  not  to  be operated  by the appellant, that he was to be given a  fixed percentage of profit irrespective of profit and that he  was not to share the losses. There is nothing inherently illegal or improper in making provision of such a type. In the  eyes of law such a claim is really non-sequitur or neutral  prov- ing  neither  the existence nor non-existence of  a  genuine firm.  The  appellant was to bring in his  asset  being  the tenancy  of  the premises in question for the  user  of  the partnership. Debiting the fixed amount payable to the appel- lant  in the expenses account is also not inconsistent  with partnership. This is also not inconsistent with treating the rent of the firm in the context of the total expenditure  of the firm. There was evidence of a suit of dissolution of the partnership where none of the partners took the plea that it was  a false or a fictitious document. Though the decree  in the  dissolution suit was not binding in  these  proceedings inter  se between the parties as partners, it is a piece  of evidence  which cannot be wholly ignored. All these  factors were  present before the appellate court. These  were  reap- praised  by the High Court. [304G; 298A; 297B;  298C;  297C; 301A; 298B]     4. The partnership firm was carrying on business in  the premises  in  question since October 4, 1961. If  there  was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting  leading to forfeiture of the tenancy, for there cannot be a  sublet- ting,  unless the lessee parted with the  legal  possession. The  mere  fact that another person is allowed  to  use  the premises  while the lessee retains the legal  possession  is

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not enough to create a sublease. [294FG; 305B]     Madras Bangalore Transport Co. (West) v. Inder Singh and others,  [1986] 3 SCC 62; Mehta Jagjivan Vanechand v.  Doshi Vanechand  Harakhchand and others, (AIR 1972 Gujarat 6)  and Gundalapalii Rangamannar Chetty v. Desu Rangiah and  others, (AIR 1954 Madras 182), referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3551  of 1979.     From.  the Judgment and Order dated 20/21.8.1979 of  the Gujarat High Court in C.R. Appln. No. 1218 of 1977. 293      Dr. Shankar Ghosh, P.H. Parekh and Ayesh Misra for  the Appellant. T.U. Mehta, R.C. Bhatia and P.C. Kapur for the Respondents. The Judgment of the Court was delivered by     SABYASACHI MUKHARJI, J. Whether the appellant herein and his  father had sublet the premises in question in or  about 1960 in terms of section 13(1)(e) of the Bombay Rents, Hotel and  Lodging  House  Rates Control  Act,  1947  (hereinafter called  the  ’Rent Act’) is’ the question involved  in  this appeal  by special leave from the judgment and order of  the High Court of Gujarat dated 21st of August, 1979.     In  order  to decide this question, it is  necessary  to decide the scope and ambit of section 29(2) of the Rent Act. To decide this, facts must be referred to.     The appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other, one  of which  is  involved in this appeal. The  respondent  is  the landlord  of  the two premises and these  were  situated  at Raikhad  Ward, Ahmedabad. The respondent had alleged in  the two  suits  that the appellant was his tenant  in  the  suit premises  which  were leased out to him and before  him  his father, for conducting the business in the name of Ahmedabad Fine  & Weaving Works and according to the terms of  tenancy suit  premises  were leased for manufacturing cloth  in  the name  of Ahmedabad Fine & Weaving Works. The respondent  had further  alleged  that the appellant No. 1  had  closed  the business  and  he was not using the said  premises  for  the purpose for which it was let to him. It was the case of  the appellant that in respect of the suit premises he was carry- ing on his business with respondents Nos. 2, 4 and 5 in  the name of respondent No. 2, M/s. Bharat Neon Signs  (hereinaf- ter referred to as respondent No. 2).     We  are  concerned in this appeal with only one  of  the premises  which was involved in Suit No. 553 of 1969. It  is not in dispute and it never was that the premises was  being used by Bharat Neon Signs firm being the defendant No. 2  in the  original  suit. At the time of the institution  of  the suit  the defendants Nos. 2 to 5 were admittedly  the  part- ners.  The present appellant who was the original  defendant No.  1  claimed to be a partner. The  main  controversy  was whether  the appellant had sublet the premises to  defendant No. 2, Bharat Neon Signs or 294 whether  he being a partner of the said firm  had  permitted the  said firm to use the premises in question. It is  clear from  the evidence on record that the partnership  firm  had undergone  metamorphosis  from time to time and  again  ever since the year 1960. The firm Bharat Neon Signs first origi- nated  on 4th of October, 1960. As many as six persons  were named  in the partnership firm, on or about 4th of  October,

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1960 and they had executed a deed of partnership on 13th  of October,  1960 which is Exhibit-114 on the record. The  said partnership  deed  records six persons who were to  run  the business  in  manufacturing and selling  Bharat  Neon  Signs tubes.  However,  the  document is silent as  to  where  the business  was  started. On or about 24th  of  October,  1960 another partnership deed being Exhibit-69 came to be execut- ed  among  the six persons and the father of  the  appellant Girdharlal. The document is Exhibit-69 and is signed by  the father  of the appellant and the appellant himself also.  It may  be mentioned that the partnership deed Exhibit-114  was executed  by six persons and at that stage the appellant  or his  father  were not partners in the firm.  But  thereafter when the partnership deed Exhibit-69 was executed the appel- lant  and  his father joined the firm with an  agreement  to share  profits only and their share was fixed at 0.03  paise in  a  rupee. There is a third partnership  deed  Exhibit-70 which showed that the deceased tenant Girdharlal had died on 1st of February, 1961 and so by the remaining seven partners with same terms and conditions, a new partnership deed being Exhibit-70  was  executed on 22nd September, 1961.  At  this time the share of the appellant was fixed at 0.03 paise in a rupee  to  share  the profits only. In  1965  some  partners retired  and  the remaining four partners executed  a  fresh partnership  deed Exhibit-117 on 1st April, 1965. This  last partnership deed was executed by the appellant and  original defendants Nos. 3, 4 and 5. The main question in issue in this appeal as well as  before the  High Court in revision was whether there was a  genuine partnership at the appellant was a partner. It is true  that since  after 4th of October, 1960 the partnership  firm  was carrying on business in the premises in question. It is well settled  that if there was such a partnership firm of  which the  appellant was a partner as a tenant the same would  not amount to subletting leading to the forfeiture of the tenan- cy.  For  this proposition see the decision of  the  Gujarat High Court in the case of Mehta Jagjivan Vanechand v.  Doshi Vanechand  Harakhchand  and others, A.I.R. 1972  Gujarat  6. Thakkar, J. of the Gujarat High Court, as the learned  Judge then was, held that the mere fact that a tenant entered into a  partnership and allowed the premises being used  for  the benefit of partnership does not constitute assign- 295 ment  or subletting in favour of the partnership firm  enti- tling  a  landlord to recover possession. This view  is  now concluded by the decision of this Court in Madras  Bangalore Transport  Co.  (West) v. Inder Singh and others,  [1986]  3 S.C.C. 62.     The  trial court in the instant appeal held  that  there was subletting. It accordingly decreed the suit for  posses- sion  instituted by the landlord. The suit, inter alia,  was filed by the landlord on the ground of subletting. There was an  appeal before the Court of Small Causes, Bombay  and  by judgment  and order delivered by the Court of Small  Causes, Bombay on 18th of August, 1977, it was held that the learned Trial Judge had erred in passing a decree for possession  on the ground of subletting, change of user and breach of terms of tenancy. In the premises, the appeal was allowed. It  may be  mentioned that the respondent No. 1 is the  landlord  of two premises which were quite adjacent as mentioned  before. The respondent-plaintiff had alleged in both the suits  that the appellant was his tenant in the suit premises which were leased  to  him for conducting his business in the  name  of Ahmedabad  Fine & Weaving Works, and according to the  terms of tenancy suit, the suit premises were leased for  manufac-

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turing cloth in the name of Ahmedabad Fine & Weaving  Works. The landlord had alleged that the appellant had closed  that business  and he was not using the premises in question  for the  purpose  for which it was let to him.  It  was  further alleged  by the landlord that the appellant  had  unlawfully sublet  the major part of the premises in question  of  both the suits to defendant Nos. 2 to 5 in the original suit  and these  defendants were running business in  partnership  for manufacturing  of  neon  signs in the name  of  Bharat  Neon Signs.  It was further alleged that the appellant  had  also unlawfully sublet one room of the suit premises to defendant No. 6 in Suit No. 553 of 1969 who was residing in that room. For  the purpose of the Suit No. 553 of 1969 with which  the appeal is concerned, it is relevant to state that the appel- lant had raised the contention that Ahmedabad Fine & Weaving Works  was not the tenant of the suit premies but  the  suit premises  was tenanted by the father of the appellant  Gird- harlal  Chimalal in 1938 and he was the original  tenant  of the premises and appellant subsequently joined the  business of  his father as a partner and the name of the  partnership firm was Ahmedabad Fine Weaving Works. He has stated further that  the suit premises were to be used for business and  he could  use it for any business and he joined in  partnership with  Defendants  Nos. 2 to 5 somewhere in 1961  to  prepare neon signs and the defendants Nos. 2 to 5 were his  partners and  doing business in the suit premises. He contended  fur- ther that the suit premises was with him and the 296 defendants  Nos. 2 to 5 had not acquired any tenancy  rights in the suit premises. It is further stated that he had filed a civil suit to dissolve the partnership and to take account and  his  suit was pending in City Civil Court.  It  may  be mentioned that by the time the revision petition came to  be decided  by the High Court the suit had been decreed in  his favour  directing a dissolution of the said partnership  and directing taking of the accounts. There was an appeal  filed from  that  decree and that appeal was  also  dismissed  and disposed of affirming the decree for the dissolution of  the partnership, inter se between the parties being the partners of the said firm. These facts were accepted that there was a partnership.  As  mentioned hereinbefore the  learned  trial Judge  consolidated both the suits and in the  instant  suit being  No. 553 of 1969 with which this appeal is  concerned, it was held by the learned trial Judge that there was unlaw- ful subletting. There was a decree for possession.     This was set aside in appeal. The Appellate Court so far as  the  material for the present appeal is  concerned  held that there was no subletting and there was only carrying  on of  the business in partnership with defendants Nos. 2 to  5 in  the  name  of Bharat Neon Signs.  Therefore,  the  first question that had to be decided by the Appellate Court being the  Court  of Small Causes, Bombay and if  a  revision  lay before  the  High court was whether there  was  any  genuine partnership. The partnership deeds were there, the appellant was  not to share in the losses. The Court of  Small  Causes came to the conclusion on an analysis of the evidence before it and the terms of the three partnership deeds referred  to hereinbefore  that  there was a genuine partnership  in  law which  was acted upon. The High Court in  revision  reversed that finding. The first question therefore, is, whether  the High Court could do so in the facts of this case and second- ly whether the High Court was right in so doing.     Whether  there was a partnership or not may  in  certain cases be a mixed question of law and fact, in the sense that whether  the ingredients of partnership as embodied  in  the

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law  of partnership were there in.a particular case  or  not must be judged in the light of the principles applicable  to partnership.  The  first question, therefore, is what  is  a partnership? That has to be found in section 4 of the Indian Partnership Act, 1932, it says "Partnership is the  relation between  persons who have agreed to share the profits  of  a business  carried on by all or any of them acting  for  all" (Emphasis  supplied). Section 6 of the said  Act  reiterates that in determining whether a group of persons is or is  not a  firm,  or whether a person is or is not a  partner  in  a firm, 297 regard  shall be had to the real relation between  the  par- ties,  as  shown by all relevant facts taken  together.  The following  important  elements  must be there  in  order  to establish  partnership, (1) there must be an  agreement  en- tered into by all parties concerned, (2) the agreement  must be  to share profits of business; and (3) the business  must be carried on by all or any of the persons concerned  acting for  all.  The partnership deeds were  there  entitling  the petitioner  to share in the partnership. It is true that  in the  partnership  deeds  the bank accounts were  not  to  be operated by the appellant, and further that irrespective  of the profit the clause of the partnership deed provided  that there should be a fixed percentage of profit to be given  to the partner-appellant No. 1. The appellant was not to  share the  losses.  But  there is nothing illegal  about  it.  The appellant  was to bring his asset being the tenancy  of  the premises  in question for the user of the  partnership.  All these tests were borne in mind by the Court of Small Causes, Bombay in the appeal from the decision of the learned  trial Judge.  The Appellate Court had considered  the  partnership deeds. One point was emphasised by Mr. Mehta, learned  coun- sel  appearing for the respondents, that the original  first partnership deed did not mention the appellant or his father as a partner. It was in the second partnership deed that the appellant  and his father joined the firm. The firm  started as  emphasised by Mr. Mehta on 4th of October, 1960  and  it was only on the 24th of October, 1960 the second partnership deed was -executed. Therefore, it was emphasised that  there was  a  gap of time when there was user by  the  partnership firm of the premises in question when the appellant was  not a member of the firm. It was emphasised that this aspect was not  considered  by the Court of Small Causes and  the  High Court,  therefore,  was justified in  interfering  with  the findings  of  the Court of Small Causes. We  are  unable  to agree.  These  deeds were there, the  partners  were  cross- examined,  there  was no specific evidence as to  from  what date the firm started functioning from the particular  prem- ises  in question. Secondly, it was emphasised by Mr.  Mehta that  the partnership deed was a camouflage. It  is  evident from  the  sales-tax  registration  and  other  registration certificates and licences under the Shops and Establishments Act  that the partnership was registered in the name of  the appellant and the appellant was also indicated as a partner. It was so in the Income Tax returns and assessments.  There- fore,  it was submitted that the Court of Small Causes  com- mitted an error of law resulting in miscarriage of  justice. It was submitted by Mr. Mehta that once it was accepted that the partnership deed was a mere camouflage the other  subse- quent  acts and conducts were merely ancillary and were  put in  a formal way. But the question is from the  three  deeds itself which were examined in detail by the Court 298 of Small Causes and which were re-examined by the High Court

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could  it be said unequivocally that there was  no  partner- ship.  The deeds gave the appellant the right to  share  the profits  and made him agent for certain limited purposes  of the  firm and there was evidence that the partnership  deeds were  acted upon. There was evidence of suit of  dissolution of the partnership where none of the partners took the  plea that  it  was a false or a fictitious document.  Though  the decree  in  the dissolution suit was not  binding  in  these proceedings, inter se between the parties as partners it  is a  piece  of evidence which cannot be  wholly  ignored.  All these factors were present before the Court of Small Causes. These  were  reappraised by the High Court.  One  point  was emphasised  by Mr. Mehta that in the partnership deed  which is  not  necessary to recite the terms, the  petitioner  was completely  excluded  in operating the  bank  accounts  etc. There  is nothing inherently illegal or improbable making  a provision  of such a type. In the eye of law, such a  clause is really non-sequitur or neutral proving neither the exist- ence nor non-existence of a genuine firm.     The first partnership deed which is Exhibit-114 is dated 13th  October,  1960. It recited that the  partnership  firm should be presently started at Ahmedabad and the same should later be started in another city. In this the appellant  was not  a partner. Exhibit-69 at page 136 of Volume-II  of  the paper-book  is  a partnership deed  wherein  Girdharlal  the father of the Appellant No. 1 and the appellant No. 1 joined as  partners. It recited that the partnership  started  from 4th of October, 1960 at Ahmedabad. It was registered in  the name of 7th and 8th partners, Girdharlal who was the  appel- lant  and  his father.It was recited that the  work  of  the partnership  would  be done by the parties  of  the  fourth, fifth, sixth, seventh and eighth as per advice and  instruc- tions of the first, second and third. All the work had  been done  by some of the partners of which appellants  were  not parties  and  that they had to do the said work as  per  in- structions  of  the other partners. Clauses 6 and 7  of  the said partnership deed recited inter alia as follows: "6.  The  year of accounts of our partnership shall  be  Aso Vadi  30th  day i.e. Diwali and the first  account  year  is decided  to  be the Aso Vadi 30th day of Samvat  Year  2017. While settling accounts at the close of the year, 33% amount from the sum which may remain as net profit after  deducting all expenditures, viz interest, discount, rent of the  shop, rent of the godown, insurance, brokerage, travelling,  tele- grams, postage, salaries of employees, etc. shall 299 be  carried to Reserve Fund and thereafter, in the sum  that remains  as net profit, the shares of us the  partners  have been fixed as under:-                                     Rs.  Np. 1.          Ratanlal Jivabhai.      0 - 16         2.  Manubhai Lalbhai.       0 - 16         3.  Keshavlal Mulchand.     0 - 05         4.  Kantilal Bhogilal.      0 - 10         5.  Virchand Keshavji.      0 - 23         6.  Satyapal Jeshal.        0 - 24         7.  Girdharlal Chimanlal.   0 - 03         8.  Helper Girdharlal.      0 - 03                                    -----------------                                     0-100 i.e. Re. 1/- 7. While settling accounts at the close of the year, if  the sum  less  than  Rs. 1500 falls to the 0-03  shares  of  the partners of the seventh and eighth parts, the amount falling short has to be debited towards the head of expenditure  and Rs.  1500 (fifteen hundred only) have to be paid in full  to

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each of them two, and in those circumstances or if there  be loss,  the parties of the seventh or eighth parts  have  not been  held liable therefore; and in the year or’ losses,  it has  been decided to pay Rs. 1500 (fifteen hundred only)  to each  of them, after debiting the same towards the  head  of expenditure  and  in the year of losses nothing  has  to  be carried  to the ’Reserve Fund’ and the loss has to be  borne by  us  to  parties first to sixth parts  in  the  following proportion:-       1.  Ratanlal Jivabhai      0 - 17       2.  Manubhai Lalbhai       0 - 17       3.  Keshavlal Mulchand     0 - 05       4.  Kantilal Bhogilal      0 - 11       5.  Virchand Keshavji      0 - 25       6.  Satyapal Jeshal        0 - 25                                  0-100 i.e. Re. 1/- 300     Clause 8 empowered the operating of the bank accounts by partners  other than the appellant and his father.  We  find intrinsically  nothing  improbable. It is  embodied  in  the deeds the functioning of the partnership. The third partner- ship  which is dated 22nd of September, 1961 also  indicates as  parties  of sixth part the name of  the  appellant.  The relevant portion of the partnership deed reads as follows:- "To wit, the parties of the first to sixth parts out of  us, deceased  Khristi  Girdharbhai Chimanlal and  Shah  Virchand Keshavji  had jointly started the business of  manufacturing and  selling Neon Signs Tubes, in partnership  in  Ahmedabad from 4.10.1960, in the name and style of Bharat Neon  Signs. However,  on  account of the death  of  Khristi  Girdharbhai Chimanlal on  1.2.61 and other reasons, the said partnership was  dissolved from 8.9.61. Thereafter, we the parties  from the first to seventh part have, after purchasing at its cost price,  all the debts and dues, goods, stock etc.,  together with goodwill of the dissolved partnership, started manufac- turing  and selling of Neon Signs Tubes in partnership  from 9.9.61.  We, the parties of all the seven parts execute  the deed of the said partnership to-day i.e. 22.9.61. The  terms and conditions thereof are as under:-           (1)  The entire work of our partnership has to  be carried out in the name of "Bharat Neon Signs."           (2) The work to be carried out by our  partnership is  of  manufacturing and selling Neon Signs  Tubes  and  of obtaining orders therefore.           (3)  Whatever  moneys that may be required  to  be invested  in  our  partnership, are to be  invested  by  the parties  of  the first, second, third,  fourth  and  seventh parts  out  of us and the interest at the rate of  71/2  per cent  per  annum has to be paid for the moneys that  may  be invested in this partnership."     We  are  of the opinion that these  were  evidence  that these terms were acted upon. There was nothing intrinsically wrong in law in constituting a partnership in the manner  it was  done. It was contended by Mr. Mehta that there  was  no agency;  reading the partnership deeds as we have read  that conclusion does not emanate from position 301 appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent  with partnership. This is also not inconsistent with treating the rent of the firm in the context of the total expenditure  of the firm.     In  any event all these factors were considered  by  the Court  of  Small Causes bearing in mind  the  correct  legal principles.  The High Court on a reappraisal of  these  very

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evidence  came to the conclusion that the partnerships  were camouflages  and  were  not acted upon and in  fact  and  in reality the partnership firm was a sub-tenant of the  appel- lant herein.     The  question is, can the High Court do so in  law.  The power of the High Court to revise the order is contained  in section  29(2) of the Bombay Rent Act as applicable  at  the relevant  time to Gujarat, The said provision reads as  fol- lows: "29(2)  no further appeal shall lie against any decision  in appeal under sub-section (1) but the High Court may, for the purpose  of  satisfying  itself that any  such  decision  in appeal was according to law, call for the case in which such decision was taken and pass such order with respect  thereto as it thinks fit." The ambit and power of revision generally and in  particular with  respect to the provisions with which we are  concerned have  from  time to time come up for consideration  by  this Court. This Court in Hari Shankar v. Rao Girdhari Lal Chowd- hury, [1962] 1 Suppl. SCR. 933 had to consider section 35(1) of  the  Delhi  & Ajmer Rent Corntrol Act,  1952.  The  said section reads as follows:- "35(1) The High Court may, at any time, call for the  record of  any  case under this Act for the purpose  of  satisfying itself that a decision made therein is according to law  and may pass such order in relation thereto as it thinks fit."     It was held in the majority judgment by HidayatuIIah, J. as  the learned Chief Justice then was, that though  section 35  of  the Delhi and Ajmer Rent Control Act was  worded  in general terms but it did not create a right to have the case re-heard. This Court emphasised that the distinction between an  appeal  and revision is a real one. A  right  to  appeal carries with it right of re-heating on law as well as  fact, unless the statute conferring the right to appeal limits the re-hearing in some 302 way.  The power to hear a revision is generally given  to  a superior court so that it may satisfy itself that a particu- lar  case is decided according to law. The  expression  "ac- cording  to law" in section 35 of the said Act  referred  to the decision as a whole, and was not to be equated to errors of  law or of fact simpliciter. This Court was of  the  view that what the High Court could see is that there has been no miscarriage  of justice and that the decision was  according to  law  in the sense mentioned. Kapur, J. who  delivered  a separate  judgment, however, observed that the  power  under section  35(1) of the said Act of interference by  the  High Court  is not restricted to a proper trial according to  law or error in regard to onus of proof or proper opportunity of being  heard. It is very much wider than that, when  in  the opinion  of the High Court the decision is erroneous on  the question  of  law which affects the merits of  the  case  or decision was manifestly unjust the High Court is entitled to interfere. The revisional authority could ensure that  there was no miscarriage of justice and the principles of law have been  correctly borne in mind, the facts had  been  properly comprehended in that light. If that was done in a particular case then the fact that the revisional authority or the High Court might have arrived to a different conclusion is irrel- evant. This view had also been expressed in the decision  of this  Court in Puranchand v. Motilal, [1963] Supp. 2  S.C.R. 906.  This principle was reiterated in Krishnawati  v.  Hans Raj,  [1974]  2 S.C.R. 524 which was  dealing  with  section 39(2) of the Delhi Rent Control Act, 1958 in second  appeal. It  was observed that under section 39(2) of the  said  Act,

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the  High  Court could interfere in second  appeal  only  if there  was a substantial question of law. In that case,  the question whether the appellant was legally married no  find- ing  was necessary in the eviction suit. It  was  sufficient for the rent court to proceed on the finding that the appel- lant and S were living together as husband and wife, whether they  were legally married or not. It was further held  that whether there was subletting was not a mixed question of law and fact. In Phiroze Bamanji Desai v. Chandrakant M. Patel & Ors.,  [1974]  3 SCR 267 the question involved  was  whether there  was reasonable and bona fide requirement of  premises for  personal  use and occupation as also  the  question  of greater hardship under the Bombay Rent Act and the ambit and scope  of  the power of Section 29(3) of the said  Act  with which we are concerned came up for consideration.  Bhagwati, J.  as  the learned Chief Justice then  was,  referred  with approval  the observations of Hidayatullah, J.  referred  to hereinbefore  in Hari Shankar’s case (supra).  Bhagwati,  J. observed  that  the ambit of section 35(1) of  the  Delhi  & Ajmer Rent Control Act which fell for consideration in  Hari Shanker’s case (supra) was the same as section 29(3) of  the Bombay Rent Act and therefore, he expressed the opinion that the 303 High Court could interfere only if there was miscarriage  of justice due to mistake of law.     We  must  take  note of a decision in the  case  of  M/s Kasturbhai Ramchand Panchal & Brothers and Others v. Firm of Mohanlal  Nathubhai and Others, AIR 1969 Gujarat  110,  upon which the High Court had placed great reliance in the  judg- ment  under appeal. There the learned judge relying on  sec- tion  29(2) of the said Act held that the  revisional  power with which the High Court was vested under section 29(2) was not  merely  in  the nature of  jurisdictional  control.  It extended  to corrections of all errors which would make  the decision  contrary  to  law. The  legislature,  the  learned Judge, felt, further empowered High Court in its  revisional jurisdiction  to pass such order with respect thereto as  it thought fit. The power according to the learned Judge was of the  widest  amplitude  to pass such  orders  as  the  Court thought  fit in order to do complete justice. He dealt  with the  human  problem under section 13(2) of Bombay  Rent  Act considering  the relative hardships of the landlord and  the tenant and to arrive at a just solution he was of the  opin- ion  that the court should have such wide field. The  juris- diction of High Court is to correct all errors of law  going to  the  root of the decision which would,  in  such  cases, include  even  perverse findings of facts, perverse  in  the sense  that  no  reasonable person,  acting  judicially  and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. In this view in our opinion the ambit of the power was expressed in rather  wide amplitude. As we read the power, the High Court must  ensure that  the  principles of law have been  correctly  borne  in mind. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. It must be such a decision which no reasonable  man could have arrived at. Lastly, such a decision does not lead to  a miscarriage of justice. We must, however,  guard  our- selves against permitting in the guise of revision substitu- tion of one view where two views are possible and the  Court of  Small Causes has taken a particular view. If a  possible view  has been taken, the High Court would be exceeding  its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view. The  fact

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that  the  High Court would have taken a different  view  is wholly  irrelevant. Judged by that standard, we are  of  the opinion  that the High Court in this case had  exceeded  its jurisdiction.     In the case of Punamchandra Revashankar Joshi v. Ramjib- hai  Maganlal, Gujarat Law Reporter (1966) at page 807,  the Gujarat High Court after dealing with the Gujarat  Amendment Act (XVIII) of 1965 304 observed that the Legislature has not intended to equate the ambit of the power with the one exercised in an appeal.  The authority vested in the High Court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further. The amending provision,  therefore, only  related  to  procedure and not to any  rights  of  the parties.     This Court in the case of Bhai Chand Ratanshi v. Laxmis- hanker Tribhavan, [1982] 1 Rent Control Journal 242 observed that  where  lower courts applied their  minds  properly  in deciding  a  matter under section 13(2) of the  Bombay  Rent Act, the High Court could not substitute its own finding for the  one  reached by the courts below, on a  reappraisal  of evidence  under section 29(2) of the Act as  substituted  by the  Gujarat  Act  18 of 1965. This  Court  reiterated  that although  the  High Court had wider power  than  that  which could  be  exercised under section 115 of  C.P.C.,  yet  its revisional  power  could  only be exercised  for  a  limited purpose  with a view to satisfying itself that the  decision was  according to law. The High Court could  not  substitute its own finding for the one reached by the courts below on a reappraisal of evidence.     In the instant case the basic question is whether  keep- ing in background the partnership deeds referred to  herein- before and the facts that came to light, was there  partner- ship  or not. Sharing of profits and contributing to  losses were  not the only elements in a partnership,  existence  of agency was essential and whether there was a partnership  or not is a mixed question of law and fact, depending upon  the varying  circumstances  in different cases.  This  view  was reiterated  by Chief Justice Beaumont, in Chimanram  Motilal and  another  v. Jayantilal Chhaganlal and  another,  A.I.R. 1939 Bombay 410. Ramaswami, J. in Mohammed Musa Sahib (dead) and others v. N.K. Mohammed Ghouse Sahib and another, A.I.R. 1959 Madras 379 observed that whether the relation of  part- nership  between two or more persons does or does  not  exit must  depend on the real intention and contract of the  par- ties  and not merely on their expressed intention.  He  also referred  to  section  4 of the Partnership  Act  about  the principles  of partnership namely, (1) there must be  agree- ment  entered  into by all the persons  concerned;  (2)  the agreement  must be to share the profits of a  business;  and (3)  the  business must be carried on by all or any  of  the persons concerned acting for all. In the instant case judged by  the  aforesaid principles, it is possible to  hold  that there  was a partnership of which the appellant was a  part- ner. The Court of Small Causes considered these  principles, evaluated  the evidence and held that there was in fact  and in law a partnership. Such a view was not an impossible  one or a perverse one. 305 If that was so, there was nothing that could be clone  about such  a  view, within the ambit and scope of  the  power  of section 29(2) of the Rent Act. We may mention that in Gunda- lapalli  Rangamannar  Chetty  v. Desu  Rangiah  and  others, A.I.R.  1954 Madras 182, Subba Rao, J. as the learned  Chief

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Justice  then was, held that there cannot be  a  subletting, unless  the  lessee parted with legal possession.  The  mere fact  that another is allowed to use the premises while  the lessee retains the legal possession is not enough to  create a sub-lease.     In  the light of the aforesaid principles and the  facts that have emerged, we are of the opinion that the High Court exceeded  its jurisdiction under section 29(2) of  the  Rent Act.  We are further of the opinion that the Court of  Small Causes  was right in the view it took and it was a  possible view  to take. In the result the appeal is allowed  and  the judgment  and order of the Gujarat High Court dated 21st  of August,  1979 are set aside. The order and judgment  of  the Court  of Small Causes Ahmedabad dated 18th of August,  1977 are  restored. The suit for possession is  accordingly  dis- missed.  The  appellant  herein is  entitled  to  the  costs throughout. P.S.S.                                                Appeal allowed. 306