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These facts were accepted that there was a partnership FAC |
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 unlawful subletting RLC |
There was a decree for possession RLC |
This was set aside in appeal Ratio |
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 Ratio |
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 Ratio |
The partnership deeds were there,the appellant was not to share in the losses Ratio |
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 Ratio |
The High Court in revision reversed that finding Ratio |
The first question therefore,is,whether the High Court could do so in the facts of this case and secondly whether the High Court was right in so doing Ratio |
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 law of partnership were there in.a particular case or not must be judged in the light of the principles applicable to partnership Ratio |
The first question,therefore,is what is a partnership Ratio |
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 Ratio |
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,regard shall be had to the real relation between the parties,as shown by all relevant facts taken together Ratio |
The following important elements must be there in order to establish partnership,(1) there must be an agreement entered into by all parties concerned,(2 Ratio |
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 Ratio |
The partnership deeds were there entitling the petitioner to share in the partnership Ratio |
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 Ratio |
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 Ratio |
But there is nothing illegal about it Ratio |
The appellant was to bring his asset being the tenancy of the premises in question for the user of the partnership Ratio |
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 Ratio |
The Appellate Court had considered the partnership deeds Ratio |
One point was emphasised by Mr Ratio |
Mehta,learned counsel appearing for the respondents,that the original first partnership deed did not mention the appellant or his father as a partner Ratio |
It was in the second partnership deed that the appellant and his father joined the firm Ratio |
The firm started as emphasised by Mr Ratio |
Mehta on 4th of October,1960 and it was only on the 24th of October,1960 the second partnership deed was -executed Ratio |
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 Ratio |
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 Ratio |
We are unable to agree Ratio |
These deeds were there,the partners were crossexamined,there was no specific evidence as to from what date the firm started functioning from the particular premises in question Ratio |
Secondly,it was emphasised by Mr Ratio |
Mehta that the partnership deed was a camouflage Ratio |
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 Ratio |
It was so in the Income Tax returns and assessments Ratio |
Therefore,it was submitted that the Court of Small Causes committed an error of law resulting in miscarriage of justice Ratio |
It was submitted by Mr Ratio |
Mehta that once it was accepted that the partnership deed was a mere camouflage the other subsequent acts and conducts were merely ancillary and were put in a formal way Ratio |
But the question is from the three deeds itself which were examined in detail by the Court of Small Causes and which were re-examined by the High Court could it be said unequivocally that there was no partnership Ratio |
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 Ratio |
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 Ratio |
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 Ratio |
All these factors were present before the Court of Small Causes Ratio |
These were reappraised by the High Court Ratio |
Mehta Ratio |
that in the partnership deed which is not necessary to recite the terms,the petitioner was completely excluded in operating the bank accounts etc Ratio |
There is nothing inherently illegal or improbable making a provision of such a type Ratio |
In the eye of law,such a clause is really non-sequitur or neutral proving neither the existence nor non-existence of a genuine firm Ratio |
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 Ratio |
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 Ratio |
It recited that the partnership started from 4th of October,1960 at Ahmedabad Ratio |
It was registered in the name of 7th and 8th partners,Girdharlal who was the appellant and his father Ratio |
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 instructions of the first,second and third Ratio |
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 instructions of the other partners Ratio |
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 Ratio |
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,t... |
We find intrinsically nothing improbable Ratio |
It is embodied in the deeds the functioning of the partnership Ratio |
The third partnership which is dated 22nd of September,1961 also indicates as parties of sixth part the name of the appellant Ratio |
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... |
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 par... |
i.e.22.9.61.The terms and conditions Ratio |
thereof are as under Ratio |
1) The entire work of our partnership has to be carried out in the name of "Bharat Neon Signs Ratio |
2) The work to be carried out by our partnership is of manufacturing and selling Neon Signs Tubes and of obtaining orders therefore Ratio |
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 Ratio |
We are of the opinion that these were evidence that these terms were acted upon Ratio |
There was nothing intrinsically wrong in law in constituting a partnership in the manner it was done Ratio |
It was contended by Mr ARG |
Mehta that there was no agency; reading the partnership deeds as we have read that conclusion does not emanate from position appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership ARG |
This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm Ratio |
In any event all these factors were considered by the Court of Small Causes bearing in mind the correct legal principles FAC |
The High Court on a reappraisal of these very 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 appellant herein FAC |
The question is,can the High Court do so in law Ratio |
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 follows: "29(2 STA |
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 STA |
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 Ratio |
This Court in Hari Shankar v Ratio |
Rao Girdhari Lal Chowdhury,[1962] 1 Suppl Ratio |
SCR.933 1961 Indlaw SC 157 had to consider section 35(1) of the Delhi & Ajmer Rent Corntrol Act,1952 Ratio |
The said section reads as follows:- "35(1 STA |
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 STA |
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 Ratio |
This Court emphasised that the distinction between an appeal and revision is a real one Ratio |
A right to appeal carries with it right of re-heating on law as well as fact Ratio |
unless the statute conferring the right to appeal limits the re-hearing in some way Ratio |
The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case is decided according to law Ratio |
The expression "according 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 Ratio |
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 Ratio |
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 Ratio |
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 Ratio |
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 Ratio |
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 irrelevant Ratio |
This view had also been expressed in the decision of this Court in Puranchand v Ratio |
Motilal,[1963] Ratio |
Supp.2 S.C.R.906 1962 Indlaw SC 455 Ratio |
This principle was reiterated in Krishnawati v PRE |
Hans Raj,[1974] 2 S.C.R.524 1973 Indlaw SC 208 which was dealing with section 39(2) of the Delhi Rent Control Act,1958 in second appeal PRE |
It was observed that under section 39(2) of the said Act,the High Court could interfere in second appeal only if there was a substantial question of law PRE |
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