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PETITIONER: P.A. THOMAS & ANR

       Vs.

RESPONDENT: M. MOHAMMED TAJUDDIN & ANR

DATE OF JUDGMENT:       19/09/1996

BENCH: K. RAMASWAMY, FAIZAN UDDIN, G.B.PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      A Bench of three Judges of this Court by judgment dated May 26,  1989 while negativing all the contentions raised by the appellant-tenant found merit in the contention raised by the counsel  that if  the first  appellant was  in effective control  over   the  management   of  the  business  of  the partnership to  which he  had taken  two other  partners, it would amount that he had not sublet the premises and that he would be  "a tenant" within the meaning of sub-clause (a) of Clause (ii)  of sub-section  (4) of  Section 2  of the Tamil Nadu City Protection Act, 1922.      Sub-section  (4)   of   Section   2      defines  the   term   "tenant"   in      relation to  any land.  Clause  (i)      thereof runs  as follows:-(i) means      a person  liable  to  pay  rent  in      respect  of   such  land,  under  a      tenancy   agreement    express   or      implied’. Sub-clause (a)  of clause (ii) of sub-section (4) of Section 2 of the said Act runs as follows:      "(a) any such person as is referred      is in  sub-clause (i) who continues      in possession of the land after the      determination   of    the   tenancy      agreement." The relevant  part of sub-clause (b) of the said clause runs as follows:      "(b) any person who was a tenant in      respect  of   such  land   under  a      tenancy agreement to which this Act      is applicable under sub-section (3)      of Section  1 and who or any of his      predecessors   in    interest   had      erected any  building on  such land      and   who   continues   in   actual      physical possession  of  such  land      and building. notwithstanding      Since there  is no  evidence on  this issue  this Court thought that  a finding Was required to be given by the High

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Court and  if required,  the matter may be sent to the trial Court for  recording the  evidence for submission thereof to the High  Court. In  furtherance  thereof,  the  High  Court remitted the matter to the trial Court for recording further evidence afresh which was adduced.      After consideration  of the  evidence, the  High  Court noted that  in paragraph  8 of  the plaint it is stated that the business  of the  first defendant  was converted  into a partnership in  the name  and style of "P.A. Thomas and Co." taking the  second  defendant  who  was  looking  after  the business  and   another  as  not  specifically  denied.  The averment that  the second  defendant was  looking after  the business  was   not  specifically   denied  in  the  written statement. Therefore,  no issue  was raised  in that behalf. The first  defendant was  not continuing  to have  effective control over  the business  even after its conversion into a partnership firm. The High Court pointed out that though the partnership deed  was filed in this Court in the appeal, the same was  not produced either in the trial Court; nor was it produced in  the High  Court. The  first defendant  did  not choose to  examine himself  as a  witness after remand. Only the  second   defendant  who   was  examined  as  DW-1,  has reiterated his evidence given on earlier occasion. The first defendant was  doing business  only upto  1970 in  the  suit property and  thereafter he  never turned  up. On  the other hand, the  business Was  being  run  in  the  suit  property exclusively by  the second  defendant. It  was also noted by the High  Court that  the first defendant was doing business in  Mundakkayam  as  pointed  out  in  paragraph  5  of  the judgment. The High Court has recorded the finding that after remand,  DW-1   4  admitted   that  his  father,  the  first defendant, was living in Mundakkayam, Kerala State and he as his son  was doing  the business  in the  suit  property  at Cumbum. The  evidence of DW-2 is also to the same effect and he claimed  that it  was he  who remitted  the rent by money orders to the plaintiffs and later deposited the rent in the Court. After  considering the entire evidence on  record and drawing an adverse inference against the first defendant for his failure  to get  himself examined  as a  witness, though opportunity was  given to him, a finding was recorded by the High Court  that the  first defendant  was not  in exclusive control of  the business.  On the  other  hand,  the  second defendant was  doing the  business  in  the  premises  after converting it  into partnership firm. This being the finding of fact,  we do  not think that there is any question of law is involved.      In view  of the  definition of  "tenant" and in view of the fact  that the first defendant to whom the open land was let  out,   had  convicted   Individual  business   into   a partnership business and was not having any control over the proper or  the business  it can  be sad sub-let the property leased out  to the  first defendant, to the partnership firm end thereby,  contravened the  condition of  the  ejectment. Accordingly, he  became liable  for ejectment. The decree of ejectment granted  by the  trial Court  and affirmed  by the High Court  was thereby  not vitiated  by any  error of  law warranting interference.      The appeal is accordingly dismissed. No costs.