27 August 2004
Supreme Court
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M/S.MAHENDRA SAREE EMPORIUM Vs G.V.SRINIVASA MURTHY

Bench: CJI,G.P. MATHUR,C.K. THAKKER
Case number: C.A. No.-006296-006296 / 1998
Diary number: 18328 / 1998
Advocates: A. SUBBA RAO Vs P. R. RAMASESH


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CASE NO.: Appeal (civil)  6296 of 1998

PETITIONER: M/s Mahendra Saree Emporium                        

RESPONDENT: G.V. Srinivasa Murthy                                     

DATE OF JUDGMENT: 27/08/2004

BENCH: CJI,G.P. Mathur & C.K. Thakker

JUDGMENT: J U D G M E N T

R.C. Lahoti, CJI

Respondent, G.V. Srinivasa Murthy is the owner-cum- landlord of the suit premises, non-residential in nature.  M/s  Mahendra Saree Emporium was a sole proprietary concern \026  now a partnership firm, sued as the tenant and is the appellant  before us.  On 21.7.1987 proceedings for eviction were initiated  by the landlord against the tenant on the ground alleged to be  available under clause (f) of sub-section (1) of Section 21 of the  Karnataka Rent Control Act, 1961, hereinafter, the ’1961 Act’ or  the ’Old Act’, for short.  It is not disputed that the premises were  taken on rent under Lease Deed dated 16.12.1968 executed by  Jugraj, father of Indrachand.  The business in the name and  style of M/s Mahendra Saree Emporium was always conducted  by Indrachand, who was minor on 16.12.1968 when the tenancy  commenced.  Later the business has been converted into a  partnership business.  Indrachand’s two brothers, one brother’s  wife and one uncle’s son are included in the partnership.   According to the landlord, the tenant has unlawfully sublet the  premises.  According to him, the premises were for an  individual’s business and entering into partnership amounts to a  ground for eviction under Section 21(1)(f) of the 1961 Act which  provides for the tenant being evicted if "the tenant has  unlawfully sublet the whole or part of the premises or assigned  or transferred in any other manner his interest therein".  The  learned Rent Controller found the ground for eviction not made  out and directed the eviction petition to be dismissed.  The  landlord preferred a revision under sub-Section (1) of Section 50  of the 1961 Act.  A learned Single Judge of the High Court has,  vide his order dated 25.9.1998, reversed the finding of the Rent  Controller and held the ground for eviction made out and  directed the tenant to be evicted.  On 13.11.1998, the tenant  filed this petition seeking special leave to appeal.  The leave has  been granted.

During the pendency of the petition, the Karnataka Rent  Act, 1999 (hereinafter referred to as the ’1999 Act’ or the ’New  Act’) has been enacted and has come into force with effect from  31.12.1999.  The 1961 Act has stood repealed.  Sections 69 and  70 of the New Act provide as under :

"69. Transfer of pending cases.- On the  commencement of this Act,-

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(1)     all cases pertaining to matters in respect of which  the Controller shall have jurisdiction under this Act  and pending in the Court under the Karnataka Rent  Control Act, 1961 shall stand transferred to the  Controller and the Controller may proceed to hear  such cases either de-novo or from the stage it was  at the time of such transfer.

(2)     All cases pertaining to matters in respect of which  the Court shall have jurisdiction under this Act and  pending before the Controller under the Karnataka  Rent Control Act, 1961 shall stand transferred to the  Court and the Court may proceed to hear such  cases either de-novo or from the stage it was at the  time of such transfer.

70. Repeal and Savings.- (1) The Karnataka Rent  Control Act, 1961 (Karnataka Act 22 of 1961) is hereby  repealed.

(2)  Notwithstanding such repeal and subject to the  provisions of section 69, -

(a)     all proceedings in execution of any decree or  order passed under the repealed Act, and  pending at the commencement of this Act, in  any Court shall be continued and disposed off  by such Court as if the said enactment had  not been repealed;

(b)     all cases and proceedings other than those  referred to in clause (a) pending at the  commencement of this Act before the  Controller, Deputy Commissioner, Divisional  Commissioner, Court, District Judge or the  High Court or other authority, as the case may  be in respect of the premises to which this Act  applies shall be continued and disposed off by  such Controller, Deputy Commissioner,  Divisional Commissioner, Court, District Judge  or the High Court or other authority in  accordance with the provisions of this Act.

(c)     all other cases and proceedings pending in  respect of premises to which this Act does not  apply shall as from the date of  commencement of the Act stand abated.

(3)     Except as otherwise provided in section 69 and in  sub-section (2) of this section, provisions of section  6 of the Karnataka General Clauses Act, 1899  (Karnataka Act III of 1899), shall so far as may be  applicable in respect of repeal of the said  enactment, and sections 8 and 24 of the said Act  shall be applicable as if the said enactment had been  repealed and re-enacted by this Act."

It is not disputed that the area of the suit premises, which  are non-residential in nature, exceeds 14 sq.metres and,

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therefore, in view of the provisions contained in clause (g) of  sub-section (3) of Section 2 of the 1999 Act, the provisions of  the 1999 Act do not apply to the suit premises.  On May 1, 2002  a Bench (Coram of two) of this Court formed an opinion that if  the premises would have been one to which the 1999 Act is  applicable, then under Section 70(2)(b) the hearing would have  continued and the case disposed of in accordance with the  provisions of the New Act but that was not the case here and,  therefore, the case attracted the applicability of Section 70(2)(c)  and hence directed the proceedings to stand abated.  The  decision is reported as Mahendra Saree Emporium   Vs.  G.V.  Srinivasa Murthy, (2002) 5 SCC 416.  On a review petition  preferred by the landlord, vide order dated February 21, 2003  the order dated May 1, 2002 was recalled and the appeal was  directed to be listed for hearing in view of the question of law  centering around the interpretation of Section 70 of 1999 Act  arising for decision.

Two questions arise for decision : firstly, as to the effect of  Section 70 of the 1999 Act on the proceedings pending before  this Court; and secondly, if the proceedings continue to survive  unabated for adjudication on merits whether a ground for  eviction under Section 21(1)(f) of the 1961 Act is made out?

We have heard Shri A. Subba Rao, the learned counsel for  the appellant and Mr. P.R. Ramasesh, the learned counsel for  the respondent.  The first question to be examined is the effect  of Section 70 of the 1999 Act on the proceedings under Article  136 of the Constitution initiated before 31.12.1999, i.e. the date  on which the 1999 Act came into force and the 1961 Act stood  repealed.

The effect of coming into force of the 1999 Act and the  effect of repeal of the 1961 Act have been dealt with by Sections  69 and 70 of the 1999 Act exhaustively.  A careful reading of  Sections 69 and 70 discloses the legislative scheme underlying  the repeal of the Old Act and coming into force of the New Act  as under : - (i)     The cases pending at the stage of trial, whether  before the Controller or the Court, are taken care  of by Section 69 of the 1999 Act.  The forum  competence in a pending case, depending on the  averments made in the plaint, shall be  determined by reference to the provisions of the  1999 Act.  Such forum competence having been  determined, the case may continue to be tried by  the forum in which it is pending or be transferred  from the Controller to the Court or vice versa, as  the case may be.   (ii)    The validity of all decrees or orders passed under  the 1961 Act has been saved if such decree or  order has already been put into execution and  the execution is pending on 31.12.1999.  The  proceedings in execution shall continue and be  disposed of as if the 1961 Act has not been  repealed.  Inasmuch as the validity of decrees or  orders passed before 31.12.1999 has been saved  and as they have not been rendered ineffective or  nullified by the 1999 Act, such decrees or orders  shall continue to remain available for execution in  the same manner as if saved although any  application for execution was not actually pending  at the commencement of 1999 Act.  This is the  reasonable interpretation which can be placed on  clause (a) of sub-Section (2) of Section 70 of the

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1999 Act; else the provision runs the risk of  being declared void under Article 14 of the  Constitution as arbitrary and discriminatory.  It  will be reasonable to read clause (a) to include  therein the decrees or orders passed before  31.12.1999 as pending in execution inasmuch as  they were awaiting execution when the New Act  came into force. (iii)   All cases or proceedings other than those in  which decrees or orders have already been  passed or which are pending at the stage of trial,  appeal or revision and which were initiated under  the 1961 Act are covered by clauses (b) and (c).  Such cases are divisible into two categories: a)      Premises to which 1999 Act applies:   The cases  and proceedings initiated under the 1961 Act in  respect of such premises to which the 1999 Act is  also applicable, shall continue to be heard and  disposed of whether at the stage of trial (subject  to the provisions contained in Section 69 of the  1999 Act) or in appeal or revision, but the  substantive law which would govern the decision  in such cases and proceedings shall be the one  contained in the 1999 Act.  Thus, Section  70(2)(b) has to be read with Section 69 so far as  cases or proceedings at the stage of trial are  concerned. b)      Premises to which 1999 Act does not apply: All  cases and proceedings initiated under the 1961  Act in respect of the premises to which the 1999  Act does not apply, if not pending at the stage of  trial before the Court or the Controller, shall  stand abated.  The abatement shall take place of  such proceedings as were pending on  31.12.1999.  The original case itself does not  stand abated; the case or the proceedings at the  stage at which it is on 31.12.1999 shall terminate  as abated.  The New Act liberalises the law in  favour of the landlords.  The Statement of  Objects and Reasons accompanying the Bill  states inter alia : "Economic Administration  Reforms Commission and the National  Commission on Urbanisation have recommended  reform of the Rent Legislation in a way that  balances the interest of both landlord and the  tenant and also stimulates future construction."  As to the premises which have been taken out of  the operation of the Rent Control Law because of  the non-applicability of the New Act, the landlord  can secure eviction of the tenant without much  difficulty simply by making out a case for eviction  under the general law which is  the Transfer of  Property Act. If the proceeding pending on  31.12.1999 is by the landlord seeking eviction of  tenant, the proceeding need not continue as the  landlord has available to his advantage, the  easier course of initiating fresh proceedings and  securing an order of eviction without much ado  and therefore it becomes unnecessary for him to  pursue the pending proceedings in which he will  have to satisfy a more stringent test for securing  a decree or order of eviction.  Similarly if the  pending proceedings are those in which the  tenant has put in issue a decree or order of  eviction, he need not be allowed to pursue the

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same inasmuch as even if he succeeds, it will  always be open for the landlord to initiate fresh  proceedings of eviction wherein he would be able  to secure the same order of eviction with more  ease.  The scheme of the New legislation and its  comparative reading with the provisions of the  preceding legislation make such interpretation  more reasonable and sensible. (iv)    To all such cases as are not specifically covered by  Section 69 and sub-Section (2) of Section 70 of the  1999 Act, sub-Section (3) of Section 70 expressly  provides for being governed by Sections 6, 8 and 24  of the Karnataka General Clauses Act, 1899.  By  making such provision, the legislature has saved  such residuary category of cases and proceedings  from the operation of the 1999 Act and allowed  them to be governed by the 1961 Act.  That would  have been the position of law even if sub-Section  (3) of Section 70 of the 1999 Act would not have  been expressly enacted.

The next question is as to the applicability of the  provisions contained in clauses (b) and (c) of sub-section (2) of  Section 70 of the New Act to the proceedings pending before this  Court in exercise of the jurisdiction conferred by Article 136 of  the Constitution of India.   

It was submitted by Shri A. Subba Rao, the learned  counsel for the appellant that the expression ’cases and  proceedings’ should be so interpreted as to hold that on  commencement of the New Act, the case itself, i.e. the  proceedings for eviction of tenant, initiated by landlord, though  under the Old Act, stand abated on the commencement of the  New Act leaving nothing for this Court to decide.  However, Shri  Ramasesh, the learned counsel for the respondent would not  agree.  His submission is two-fold.  He submits, firstly, that the  legislature has not intended the case for eviction itself to abate;  what would abate is the proceedings pending in this Court.   Meaning thereby, submitted Shri Ramasesh, the petition or  appeal under Article 136 would abate with the result of leaving  untouched the decree of eviction as passed by the High Court.   In the alternative, he submitted that if this Court may form an  opinion that the proceedings under Article 136 of the  Constitution do not fall within the purview of Section 70 of the  New Act which is a State legislation, then the same shall  continue to be heard and decided in accordance with the  provisions of the Old Act.          The jurisdiction conferred on this Court by Article 136 of  the Constitution is a plenary jurisdiction in the matter of  entertaining and hearing appeals by granting special leave  against any kind of judgment or order made by Court or Tribunal  in  any  case  or  matter  and  the jurisdiction can be exercised  in spite of other specific provisions for appeal contained in the  Constitution or other laws.  This article confers on the Supreme  Court special or residuary powers which are exercisable outside  the purview of the ordinary laws in cases where the needs of  justice demand interference by the Supreme Court (see:  Constitution Bench decisions in Durga Shankar Mehta Vs.  Thakur Raghuraj Singh and others (1955) 1 SCR 267 and  Union Carbide Corporation Vs. Union of India (1991) 4 SCC  584, para 58). In Durga Shanker Mehta’s case (supra) the  Constitution Bench held that Section 105 of the Representation  of People Act, 1951 which gives finality to the decision of the  Election Tribunal has the effect of giving finality so far as that

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Act is concerned and the fact that it does not provide for any  further appeal cannot cut down, or have an overriding effect on,  the powers which the Supreme Court can exercise by virtue of  Article 136 of the Constitution.  The Constitutional jurisdiction  conferred by Article 136 cannot be limited or taken away by any  legislation subordinate to the Constitution.  This view finds  support from the Constitution Bench decision of this Court in  S.P. Sampath Kumar Vs. Union of India and others AIR  1987 SC 386 and the recent decision of this Court in Surya Dev  Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675.  In  Surya Dev Rai’s case (supra), this Court has on a review of  several authorities held that any legislation subordinate to the  Constitution cannot whittle down, much less take away the  jurisdiction and powers conferred on the constitutional courts of  the country.  

Shri A. Subba Rao, the learned counsel for the appellant,  submitted that Section 70 of the New Act legislatively enacts the  doctrine of statutory abatement as distinguished from  abatement of civil proceedings by death or otherwise caused by  an event or happening which is non-statutory.  Reliance was  placed on a series of four decisions, namely, Ram Adhar Singh  Vs. Ramroop Singh and others (1968) 2 SCR 95, Chattar  Singh and others Vs. Thakur Prasad Singh (1975) 4 SCC  457, Satyanarayan Prasad Sah and others Vs. State of  Bihar and another (1980) Supp. SCC 474 and Mst. Bibi  Rahmani Khatoon and others  Vs.  Harkoo Gope and  others (1981) 3 SCC 173.  All these cases deal with statutory  abatement consequent upon a notification under the State  Consolidation of Holding legislation having been issued.  A  perusal of these decisions shows that the provisions of the State  legislation which came up for consideration of the Court provided  for the original case, wherefrom the subsequent proceedings had  originated, itself to stand abated on the commencement of such  legislation and/or on the issuance of the requisite notification  thereunder, without regard to the stage at which the  proceedings were pending.  It was held that appeal was a  continuation of suit and inasmuch as the local law made  provision for an effective alternative remedy to be pursued  before an exclusive forum to redeem the grievance raised before  the Court, the local law had the effect of terminating and  nullifying the initiation of the proceedings itself and therefore  nothing remained for the court to adjudicate upon in the appeal  which was rendered infructuous.

Such is not the case before us.  The decisions of this Court  relied on by the learned counsel for the appellant are clearly  distinguishable and have no applicability to the situation  emerging from the facts of the case before us.  The nearest case  relevant to the case in hand is the one relied on by Shri  Ramasesh, the learned counsel for the respondent and that is  Gyan Chand Vs. Kunjbeharilal and others (1977) 3 SCC 317.

       In Gyan Chand’s  case (supra), proceedings for eviction  of tenant under the provisions of the Rajasthan Premises  (Control of Rent and Eviction) Act, 1950 were pending.  During  the pendency of the proceedings in this Court under Article 136  of the Constitution, the said Act came to be amended by an  Ordinance conferring certain additional benefits on the tenant  and the tenant sought for the decree being modified in the light  of the provisions of the Ordinance.  The Ordinance applied to  pending proceedings. The term ’proceeding’ was defined to mean  suit, appeal or application for revision.  P.K. Goswami, J.,  speaking on behalf of Y.V. Chandrachud, J., (as His Lordship  then was) and for himself held that an application for special

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leave under Article 136 of the Constitution against a judgment or  an order cannot be equated with the ordinary remedy of appeal,  as of right, under any provisions of law.   It is an extraordinary  right conferred under the Constitution, within the discretion of  this Court, and such an application for special leave does not  come within the contemplation of appeal pending before the  Court under Section 13A(a) of the Act.  It was further held that  in view of the connotation of the word "proceeding" as given  under the Explanation to Section 13A it is impermissible to  extend the meaning of the word "proceeding" to include an  application for special leave under Article 136 of the  Constitution.  The collocation of the words, "suit, appeal or  application for revision" in the Explanation to denote  "proceeding" would go to show that suits, regular appeals  therefrom, as provided under the ordinary law, and applications  for revision alone are intended.  It is inconceivable that if the  legislature had intended to include within the ambit of  "proceeding" an application for special leave under Article 136 of  the Constitution it would have omitted to mention it in express  terms.  Their Lordships opined that under the scheme of the Act  it was reasonable to hold that the legislature clearly intended to  include only the hierarchy of appeals under the Civil Procedure  Code and not an appeal or a petition under Article 136 of the  Constitution.   Fazal Ali, J., in his concurring opinion, held that if  the intention was to extend the benefit to appeals for special  leave it should have been so stated clearly.  The benefit  conferred by Section 13A of the Act does not extend even to the  execution proceedings and in these circumstances it cannot be  assumed that it would have applied to a Court which is beyond  the frontiers of the State and to a remedy which has been  provided not by the State Legislature but by the Constitution  itself.

       Abatement kills the right to sue and has the effect of  unceremoniously terminating the pending legal proceedings  without adjudication on merits.  It has to be strictly construed  and applied only to such cases to which its applicability is  undoubtedly attracted.  Excepting where an otherwise legislative  intention is expressly or by necessary implication deducible, a  provision for abatement of pending proceedings shall abate only  such proceedings as were pending on that day and at that stage  and not the original proceedings which had already stood  concluded but were reopened by a superior forum for the  purpose of examining legality or propriety thereof.  

       We are, therefore, of the opinion that the State Legislature  enacting the New Act could have provided for the suit itself  which originated under the local law to abate on the date of  coming into force of the New Act but that the Legislature has not  chosen to do.  The Legislature could not have provided, nor has  it provided, for the jurisdiction of this Court under Article 136  being taken away or curtailed in any manner whatsoever and  rightly so.  The appeal would, therefore, survive unabated for  adjudication on merits.

       The next question which arises for consideration is whether  there has been sub-letting of the premises within the meaning of  Section 21(1)(f) of the Old Act.

       The term ’sub-let’ is not defined in the Act __  new or old.  However, the definition of ’lease’ can be adopted mutatis  mutandis for defining ’sub-lease’.  What is ’lease’ between the  owner of the property and his tenant becomes a sub-lease when

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entered into between the tenant and tenant of the tenant, the  latter being sub-tenant qua the owner-landlord.  A lease of  immovable property as defined in Section 105 of the Transfer of  Property Act, 1882 is a transfer of a right to enjoy such property  made for a certain time for consideration of a price paid or  promised.  A transfer of a right to enjoy such property to the  exclusion of all others during the term of the lease is sine qua  non of a lease.  A sub-lease would imply parting with by the  tenant of a right to enjoy such property in favour of his sub- tenant.  Different types of phraseology are employed by different  State Legislatures making provision for eviction on the ground of  sub-letting.  Under Section 21(1)(f) of the Old Act, the  phraseology employed is quite wide.  It embraces within its  scope sub-letting of the whole or part of the premises as also  assignment or transfer in any other manner of the lessee’s  interest in the tenancy premises.  The exact nature of  transaction entered into or arrangement or understanding  arrived at between the tenant and alleged sub-tenant may not  be in the knowledge of the landlord and such a transaction being  unlawful would obviously be entered into in secrecy depriving  the owner-landlord of the means of ascertaining the facts about  the same.  However still, the Rent Control Legislation being  protective for the tenant and eviction being not permissible  except on the availability of ground therefor having been made  out to the satisfaction of the Court or the Controller the burden  of proving the availability of the ground is cast on the landlord,  i.e. the one who seeks eviction.  In Krishnawati Vs. Hans Raj,  (1974) 2 SCR 524, reiterating the view taken in Associated  Hotels of India Ltd. Delhi Vs. S.B. Sardar Ranjit Singh,  (1968) 2 SCR 548, this Court so noted the settled law ___ "the  onus of proving sub-letting is on the landlord.  If the landlord  prima facie shows that the occupant, who was in exclusive  possession of the premises, let out for valuable consideration, it  would then be for the tenant to rebut the evidence".  Thus, in  the case of sub-letting, the onus lying on the landlord would  stand discharged by adducing prima facie proof of the fact that  the alleged sub-tenant was in exclusive possession of the  premises or, to borrow the language of Section 105 of the  Transfer of Property Act, was holding right to enjoy such  property.   A presumption of sub-letting may then be raised and  would amount to proof unless rebutted.  In the context of the  premises having been sub-let or parted with possession by the  tenant by adopting the device of entering into partnership, it  would suffice for us to notice three decisions of this Court.   Murlidhar versus Chuni Lal and others (1970 A.I.R.C.J. 922)  is a case where a shop was let out to a firm of the name of Chuni  Lal Gherulal.  The firm consisted of three partners, namely,  Chuni Lal, Gherulal and Meghraj.  This partnership closed and a  new firm by the name of Meghraj Bansidhar commenced its  business with partners Meghraj and Bansidhar.  The tenant firm  was sought to be evicted on the ground that the old firm and the  new firm being two different legal entities, the occupation of the  shop by the new firm amounted to subletting.  This court  discarded the contention as ’entirely without substance’ and held  that a partnership firm is not a legal entity; the firm name is  only a compendious way of describing the partners of the firm.   Therefore, occupation by a firm is only occupation by its  partners.  The two firms, old and new, had a common partner  namely Meghraj, who continued to be in possession and it was  fallacious to contend that earlier he was in possession in the  capacity of partner of the old firm and later as a partner of the  new firm.  The landlord, in order to succeed, has to prove it as a  fact that there was a subletting by his tenant to another firm.  As  the premises continued to be in possession of one of the original  tenants, Meghraj, then by a mere change in the constitution of

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the firm of which Meghraj continued to be a partner, an  inference as to subletting could not be drawn in the absence of  further evidence having been adduced to establish subletting.  In  Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri &  Ors. (1987) 3 SCR 289, the tenant had entered into a  partnership and the firm was carrying on business in the tenancy  premises.  This Court held that if there was a partnership firm of  which the appellant was a partner as a tenant, the same would  not amount to sub-letting leading to forfeiture of the tenancy;  for there cannot be a sub-letting 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 not enough to create a sub-lease.  Thus, the thrust  is, as laid down by this Court, on finding out who is in legal  possession of the premises.  So long as the legal possession  remains with the tenant the mere factum of the tenant having  entered into partnership for the purpose of carrying on the  business in the tenancy premises would not amount to sub- letting.  In Parvinder Singh Vs. Renu Gautam & Ors., (2004)  4 SCC 794, a three-Judges Bench of this Court devised the test  in these terms ___ "if the tenant is actively associated with the  partnership business and retains the use and control over the  tenancy premises with him, maybe along with the partners, the  tenant may not be said to have parted with possession.   However, if the user and control of the tenancy premises has  been parted with and deed of partnership has been drawn up as  an indirect method of collecting the consideration for creation of  sub-tenancy or for providing a cloak or cover to conceal a  transaction not permitted by law, the court is not estopped from  tearing the veil of partnership and finding out the real nature of  transaction entered into between the tenant and the alleged sub- tenant."

       In the present case there is un-rebutted evidence available  on record to show that the family of the tenant consists of  sixteen members which includes cousins as well.  The family is  joint and depends for its livelihood on the business run in the  suit premises.  The tenant has not parted with possession in  favour of any stranger.  The brothers, a wife of one of the  brothers and a cousin have entered into partnership with the  tenant for the purpose of carrying on the pre-existing business in  the suit premises.  There is no evidence adduced and no material  available on record to draw an inference that the tenant has  dissociated himself from the business activity leaving for the  partners alone to carry on the business or that the so-called  partners are in exclusive possession of the premises having no  relationship with the tenant and the partnership is nothing but a  camouflage for parting with by the tenant of the possession or  right to use the tenancy premises in favour of the persons in  possession.  The High Court was not right in holding a case of  sub-letting having been made out simply because the sole  propriety business was converted into a partnership business.

       For the foregoing reasons we hold that in spite of the Old  Act, i.e. the 1961 Act having been repealed by the New Act, i.e.  the 1999 Act, the present appeal under Article 136 of the  Constitution does not abate and survives for adjudication on  merits.  However, the ground for eviction under Section 21(1)(f)  of the Old Act is not made out and, therefore, the proceedings  for eviction initiated by the respondent-landlord cannot succeed.   

The appeal is allowed and the proceedings for eviction are  directed to be dismissed. No order as to the costs.