Holding

The High Court exceeded its jurisdiction under s.29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act by substituting its own view, and the appellate court’s finding of no subletting stands.

Summary

The appellant, Helper Girdhb... (a tenant), was sued for unlawful subletting of premises leased for cloth manufacturing. He claimed the premises were used by a genuine partnership (Bharat Neon Signs) of which he was a partner, and therefore no subletting occurred. The trial court found subletting and decreed possession; the Court of Small Causes reversed, holding there was a partnership and no subletting. The Gujarat High Court, in revision, re‑appraised the evidence and held the partnership a camouflage, treating it as a sub‑tenant and reinstating the eviction decree. The Supreme Court held that the High Court exceeded its jurisdiction under s.29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act by substituting its own view, affirmed that the appellate court’s finding of no subletting was permissible, and restored the Small Causes judgment, dismissing the possession suit and awarding costs to the appellant.

Issues considered

Whether the appellant sublet the premises in violation of s.13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
Whether a genuine partnership existed between the appellant and the defendants, making the use of the premises permissible.
Whether the question of existence of partnership is a mixed question of law and fact.
Whether the High Court, under s.29(2) of the Act, could re‑appraise evidence and overturn the appellate court’s decision.

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 13, s. 29
Indian Partnership Act, 1932s. 4, s. 6

Subjects

sublettingpartnershiprevisionrent controlBombay Rent Actappellate jurisdictionmixed question of law and factevictiontenancy

Judgment

----------------------

HELPER GIRDHARBHAI A
v.
SAIYED MOHMAD MIRASAHEB KADRI AND OTHERS.

MAY 6, 1987

[SABYASACHI MUKHARJI AND S. NATARAJAN, JJ.) B

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

Sub-section (2) of s. 29 of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947, as it stood at the relevant time, barred D
further. appeal against any decision in appeal under sub-s. (1), and
instead conferred revisionary powers on the High Court in such a case.

The appellant-tenant was a partner in firm •A' which was carry-
ing on business or manufacturing cloth in the suit premises. That
business was closed on October 4, 1960 and a new firm 'B' came into E
being to run the business in manufacturing and selling neon sign tubes.
On October 13, 1960 a partnership deed was executed by six persons as
partners or the new firm. The document was silent as to where the

I business was started. On or about October 24, 1960 another partner-
ship deed was executed by these six persons and the appellant and his

r
father with an agreement to share only profits to the extent of 3 paise in F
a rupee. After the death or the appellant OD February 1, 1961 a new
partnership deed was executed by ttie remaining seven partners with
the same terms and conditions.
~
The respondent·landlord filed eviction suits against the appellant-
I ,
defendant alleging that the premises which were leased to the appellant G

r
for manufacturing cloth in the name of firm •A' had been unlawfully
sublet in major part to defendants 2 to S who were running business in
partnership for manufacturing neon signs. The appellant contended
that firm 'A' was not the tenant of the suit premises, that his father was
the original tenant with whom he had joined in business as a partner in
!
firm 'A', that the suit premises were to be used Cor. business and he . H
i 289
!
-- -
290 SUPREME COURT REPORTS [1987] 3 S.C.R.

could use it for any business, that he had joined firm 'B' in partner-
A
ship, that the suit premises was with him and defendants 2 to 5 had rmt
acquired any tenancy rights in the suit premises, and that he had filed a
civil suit to dissolve the partnership, and to take account which was
later decreed in his favour and affirmed in appeal.

B 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

C
breach of terms of tenancy. The High Court in revision on a reappraisal
of evidence took the view that the partnership was a camouflage and
was never acted upon, and in fact and in reality the partnership firm
-
was a sub-tenant of th.e appellant.

In the appeal by special leave it was contended for the appellant
that there was a genuine partnership which was acted upon and this
D finding of the appellate court could not have been reversed by the High
Court in revision under s. 29(2) of the Act. For the respondents it was
contended that the original first partnership deed did not mention that
the appellant or his father was a partner, that it was in the stcond
partnership deed that the appellant and his father joined the firm, that
there was a gap of time when th.ere was nser by the partnership firm of
E the premises in question when the appellant was not a member of the
firm, which fact was not considered by the appellate court, and that the
partnership deed was a camouflagt>.

Allowing the appeal,

F HELD: 1. The High Court exceeded its jurisdiction under
s. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947 in reversing the view of the appellate court. [30SBC]

2.1 The distinction between an appeal and revision is a real one.
A right to appeal carries with it a right of re-hearing on law as well as
G fact, unless the statute conferring the right to appeal limits the ---<
re-hearing in some way. The power to hear a revision is generally given
to a superior court to ensure that the principles of law have been cor-
rectly 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 affived at anrl
H which does not lead to a miscarriage of justice. [301H-30J.A; 303EFJ
H. GIRDHARBHAI v. SAJYED MOHMAD 29 l

2.2 The Court must guard itself against permitting in the guise of A
revision substitution of one view where two views are possible and the
appellate court has taken a particul~r 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. Tlte fact that the High Court would have taken a different
view is wholly irrelevant. Whether there was a partnershi11 or not is a B
.1 mixed question of law and fad, depending upon the varying circums-
tances in different cases. [303FG; 304E]

Hari Shankar v. Rao Girdhari Lal Chowdhury, 11962] 1 Suppl.
SCR 933; Puranchand v. Motilal, [1963] Sn!>PI. 2 SCR 906;
Krishnawati '"Hans Raj, [1974] 2 SCR 524; Phiro•P Bamanji Desai v. c
Chandrakant M. Patel & Ors., [1974] 3 SCR 267; Ilhc.i Chand Ratanshi
v. Laxmishankar Tribhavan, [1982] I Rent CGnlrol Journal 242; Mis
Kasturbhai Ramc/1and Panchal & Brothers and Others v. Firm of
Mohan/al Nathubhai and Others, AIR 1969 Gujarat 110 and Punam-
chandra Revashankar Joshi v. Ramjibhai Magan/a( 7 Gujarat "Law
Reporter (1966) at page 807, referred to. D

Jn the instant case, the Court of Small Causes cons1idered 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 impossibf,, one or a
perverse one. Therefore, there was nothing that could be done about
suclt a view within the ambit and scope of the rc,isional powers under E
s. 29(2) of the Act and the High Court could not have substitut,ed its own
finding for the one reached by the appellate court. [404H-305A; 304DJ

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 light of principles applicable to partnership, thal is (1) there must be F
an agreement entered into by all the persons concerned, (2) the agree·
ment must be to share the profits of a busintss, and (3) the business
must be carried on by all or any of the per.ons concerned acting for all.
Sharing of profits and cont1ibuting to losses are not the only elements in
a partnership, existence of agency is essential. [296FG; 304G; 304E]
G
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 H
292 SUPREME COURT REPORTS (1987] 3 S.C.R.

A unequivocally that there was no partnership. The partnership deeds
gave the appellant the right to share the profit!f 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
B 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 proving neither the existence nor non-existence
of a genuine firm. The appellant was to bring in his asset being the
tenancy or the premises in question for the user or the partnership.
Debiting the fIXed amount .payable to the appellant in the expenses
C account is also not inconsistent with partnership. This is also not incon-
sistent 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
D partners, it is a piece of evidence which cannot be wholly ignored. All
these factors were present before the appellate court. Tkese were y
reappraised by the High Court. [304G; 298A; 297B; 298C; 297C;
301A; 298B]
4. The partnership firm was carrying on business in the premises
E 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 subletting, unless the lessee parted with the legal posses-
sion. 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
F sublease. [294FG; 305B]
Madras Bangalore Transport Co. (West) v. lnder Singh and
others, (1986] 3 SCC 62; Mehta Jagjivan Vanechand v. Doshi
Vanechand Harakhchand and others, (AIR 1972 Gujarat 6) and Gunda-
lapalli Rangamannar Chetty v. Desu Rangiah and others, (AIR 1954
Madras 182), referred to.
G
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.
H
H. GIRDHARBHAI v. SAIYED MOHMAD [MUKHARJI, J.J 293

Dr. Shankar Ghosh, P.H. Parekh and Ayesh Misra for the A
Appellant.

T.U. Mehta, R.C. Bhatia and P.C. Kapur for the Respondents.

The Judgment of the Court was delivered by
B
_..(
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. c
1" 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 D
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 E
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. I 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 F
carrying on his business with respondents Nos. 2, 4 and 5 in the name
of respondent No. 2, M/s. Bharat Neon Signs (hereinafter referred to
as respondent No. 2).

We are concerned in this appeal with only one of the premises
'r which was involved in Suit No. 553 of 1969. It is not in dispute and it G
' 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 S were admittedly the
partners. The present appellant who was the original defendant No. 1
claimed to be a partner. The main controversy was whether the appel-
!ant had sublet the premises to defendant No. 2, Bharat Neon Signs or H
294 o0PREME COURT REPORTS [1987] 3 S.C.R.

A whether he being a partner of the said firm had permitted the said firm
to use the premises in question. It is clear from ihe 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 originated on 4th of October, 1960. As many as six persons were
B named in the partnership firm, on or about 4th of October, 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

C
the business was started. On or about 24th of October, 1960 another
partnership deed being Exhibit-69 came to be executed 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 appel-
-
lant 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 appellant and his father
D 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 y
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
E appellant was f1Xed 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 !st April, 1965. This last part-
nership deed was executed by the appeflant and original defendants
Nos. 3, 4 and 5.

F
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
all in which 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 partner-
ship firm of which the appellant was a partner as a tenant the same
G would not amount to subletting leading to the forfeiture of the
tenancy. For this proposition see the decision of the Gujarat High
Court in the case of Mehta lagjivan Vanechand v. Doshi Vanechand
Harakhchand and others, A.LR. 1972 Gujarat 6. Thakkar, J. of the
Gujarat High Court, as the learned Judge then was, held that the mere
H fact that a tenant entered into a partnership and allowed the premises
being used for the benefit of partnership does not constitute assign-
H. GIRDHARBHAI v. SAIYED MOHMAD [MUKHARJI, J.) 295

ment or subletting in favour of the partnership firm entitling a landlord A
to recover possession. This view is now concluded by the decision of
this Court in Madras Bangalore Transport Co. (West) v. lnder Singh
and others, (1986] 3 S.C.C. 62.

The trial court in the instant appeal held that there was sublet-
_) ting. It accordingly decreed the suit for possession instituted by the B
landlord. The suit, inter alia, was filed by the landlotd 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, l<r77, 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 c
'r 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
'y Ahmedabad Fine & Weaving Works, and according to the terms of D
tenancy suit, the suit premises vyere leased for manufacturing 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 E
. 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. lt 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 F
the appeal is concerned, it is relevant to state that the appellant had
raised the contention that Ahmedabad Fine & Weaving Works was not
the tenant of the suit premises but the suit premises was tenanted by
the father of the appellant Girdharlal Chimanlal in 1938 and he was the
original tenant of the premises and appellant subsequently joined the
7 business of his father as a partner and the name of the partnership firm G
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 iii 1961 to prepare neon signs and the defendants Nos. 2
to 5 were his partners and doing business in the suit premises. He
contended further that the suit premises was with him and the H

--~-----
- ~-

296 SUPREME COURT REPORTS [1987] 3 S.C.R.

A defendants Nos. 2 to 5 bad not acquired any tanancy 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
8
taking of the accounts. There was an appeal filed from that decree and ,l
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 con-
solidated both the suits and in the instant suit being No. 553 of 1969
C with which this appeal is concerned, it was held by the learned trial
-
Judge that there was unlawful 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
D 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. There-
y
fore, 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 wbether"'there was any genuine partnership. The
partnership deeds were there, the appellant was not to share in the
E losses. The Court of Small Causes came to the conclusion on an
analysis of the evidence before it and the terms of the three partner-
ship deeds referred to bereinbefore that there was a genuine partner- °"·
ship 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 secondJy whether the High
F 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 ingre-
dients 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
G principles applicable to partnership. The first question, therefore, is--i'
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
H 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,
H. GIRDHARBHAI v. SAIYED MOHMAD [MUKHARJI, J.] 297

':;:). regard shall be had to the real relation between the parties, as shown A
by all relevant facts taken together. 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) 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 B
_l 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 d..,ed provided that there
should be a fixed percentage of profit to be given to the partner-appel-

- \.
lant 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 c
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
r in the appeal from the decision of the learned trial Judge. The Appel-
late Court had considered the partnership deeds. One point was
emphasised by Mr. Mehta, learned counsel appearing for the respon-
dents, that the original first partnership deed did not mention the D
appellant or his father as a partner. It was in the second partnership
'Y 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 ques- E
tion when the appellant was not a member of the firm. It was
emphasised that this aspect was not considered by the Court of Small
l 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 F
from the particular premises in question. Secondly, it was emphasised
by Mr. Mehta that the partnership deed was a camouflage. ft 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 assess- G
~ ments. Therefore, it was submitted that the Court of Small Causes
committed 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 subsequent 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 H
-
298 SUPREME COURT REPORTS [1987] 3 S.C.R.

A of Small Causes and which were re-examined by the High Court could
it be said uneqmvocally that there was no partnership. 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
B that it was a false or a fictitious document. Though the decree in the
dissolution suit was not binding in these proceedings, inter se betweenJ...
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..._.

c
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
existence nor non-existence of a genuine firm.

D 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 y
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
E 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 appellant 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
F 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.
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
G 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, travel-
H ling, telegrams, postage, salaries of employees, etc. shall
H. GIRDHARBHAI v. SAIYED MOHMAD [MUKHARJI, J.J 299

be carried to Reserve Fund and thereafter, in the sum that A
remains as net profit, tl]e shares of us the partners have
been fixed as under:-

Rs. Np.
1. Ratanlal Jivabhai. 0 - 16
B
2. Manubhai Lalbhai. 0 - 16
l
3. Keshavlal Mulchand. " 0-05
~· 4. Kantilal Bhogilal. 0- 10
5. Virchand Keshavji. 0-23
6. Satyapal Jeshal. 0-24 c
7. Girdharlal Chimanlal. 0-03
8. Helper Girdharlal. 0·03
0 - 100 i.e. Re. 1/-
D
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 part:
ners 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 each of them two, and in those circumstances or if there E
be loss, the parties of the seventh or eighth parts have not
been held liable therefor; and in the year of losses, it has
been decided to pay Rs.1500 (fifteen hundred only) to each
of them, after debiting the same towards the head of expen-
diture and in the year of losses nothing has to be carried to
the 'Reserve Fund' and the loss has to be borne by us tl:e F
parties first to sixth parts in the following proportion:-

1. Ratanlal Jivabhai 0 - 17
2. Manubhai Lalbhai 0- 17
3. Keshavlal Mulchand 0-05 G -
4. Kantilal Bhogilal 0- 11
5. Virchand Keshavji 0- 25
6. Satyapal Jeshal 0-25
0- 100 i.e. Re. 1/- H
300 SUPREME COURT REPORTS [1987] 3 S.C.R.

A Clause 8 empowered the operating of the bank accounts by part- k
ners 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 partnership 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:-
B
"To wit, the parties· of the first to sixth parts out of us, _L
deceased Khristi Girdharbhai Chimanlal and Shah Vir-
chand 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
c 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 dis-
D solved partnership, started manufacturing 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 y
partnership to-day i.e. 22.9.61. The terms and conditions
thereof are as under:-

E (1) The entire work of our partnership has to be. car-
ried 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 therefor.
F
(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 7112 per cent per
annum has to be paid for the moneys that may be invested
G 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
H as we have read that conclusion does not emanate from position
H. GIRDHARBHAI v. SAIYED MOHMAD (MUKHARJI, J.J 301

,.i, appearing debiting the fixed amount payable to the appellant in the A
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 B
J 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.

The question is, can the High Court do so in law. The power of C
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
~
I said provision reads as follows:

''29(2\ no further appeal shall.lie against any decision in
appeal under sub-section (1) but the High Court may, for ·o
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 E
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
I Shankar v. Rao Girdhari Lal Chowdhury, [1962] 1 Suppl. SCR. 933 had
· to consider section 35( 1) of the Delhi & Ajmer Rent Control Act,
1952. The said section reads as follows:-
F
"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 Hidayatullah, J. as the G
\.- learned Chief Justice then was, that though section 35 of the Delhi and
J A jmer 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-hearing on law as well as fact, unless
the statute conferring the right to appeal limits the re-hearing in some H
' 302 SUPREME COURT REPORTS [ 1987) 3 S.C.R.

A way. 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. 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. This Court was of the view that what the
High Court could see is that there has been no miscarriage of justice
B 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
C 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 mis-
carriage 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
D authority or the High Court might have arrived to a different conclu-
sion is irrelevant. 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
E the said Act, 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 finding was necessary in
the eviction suit. It was sufficient for the rent court to proceed on the \
finding that the appellant and S were living together as husband and '
wife, whether they were legally married or not. It was further held that
F 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
G which we are concerned came up for consideration. Bhagwati, J. as the
learned Chief Justice then was, referred with approval the observa- "{
tions 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
H Bombay Rent Act and therefore, he expressed the opinion that the
H. GIRDHARBHAI v. SAIYED MOHMAD [MUKHARJI, J.] 303

High Court could interfere only if there was miscarriage of justice due A
to mistake of law.

We must take note of a decision in the case of Mis Kasturbhai
Ramchand Panchal & Brothers and Others v. Firm of Mohan/al
Nathubhai and Others, AIR 1969 Gujarat 110, upon which the High
Court had placed great reliance in the judgment under appeal. There B
the learned judge relying on section 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 ex-
tended to correctiOns of all errors which would make the decision
contrary to law. The legislature, the learned Judge, felt, further em-
powered High Court in its revisional jurisdiction to pass such order C
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 opinion that the court should have such D
wide field. The jurisdiction of High Court is to correct all errors of law
going to the root of the decision which would, in such cases, inclpde
even perverse findings of facts, perverse in the sense that no reason-
able 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 E
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 prop6rly appreciated and a decision arrived at
taking all material and relevant facts in mind. It must be such a deci-
sion which no reasonable man could have arrived at. Lastly, such a
decision does not lead to a miscarriage of justice. We must, however, F
guard ourselves against permitting in the guise of revision substitution
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 that the High Court would have taken a different view is G
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. Ramjibhai
Magan/al, Gujarat Law Reporter (1966) at page 807, the Gujarat High
Court after dealing with the Gujarat Amendment Act (XVIII) of 1965 H
304 SUPREME COURT REPORTS [1987) 3 S.C.R.

A 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.
B
This Court in the case of Bhai Chand Rctanshi v. Laxmishanker
Tribhavan, [ 1982] 1 Rent Control Journal 242 observed that where
lower courts applied their minds p'operly in deciding a matter under
section 13(2) of the Bombay Rent Act, the High Court could not
oubstitute its own finding for the one reached by the courts below, on a
C 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
D for the one reached by the courts below on a reappraisal of evidence.

In the instant case the basic question is whether keeping in back-
ground the partnership deeds referred to hereinbefore and the facts t
that came to light, was there partnership or not. Sharing of proh•c and
contributing to losses were not the only elements in a partnership,
E 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 Motila/ 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
F Sahib and another, A.LR. 1959 Madras 379 observed that whether the
relation of partnership between two or more persons does or doc; not
exit must depend on the real intention and contract of the parties 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 agreement entered into by all the persons concerned; (2)
G 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 partner. The Court of Small Causes considered these principles,
evaluated the evidence and held that there was in fact and in law a
H partnership. Such a view was not an impossible one or a perverse one.
-
H. GIRDHARBHAI v. SAIYED MOHMAD (MUKHARJI, J.] 305

[If that was so, there was nothing that could be done about sue~ a view, A
~within the ambit and scope of the power of section 29(2) of the Rent
~ Act. We may mention that in Gundalapalli Rangamannar Chetty v .
. Desu Rangiah and others, A.LR. 1954 Madras 182, Subba Rao, J . as
the learned Chief Justice then was, held that there cannot be a sub-
letting, unless the lessee parted with legal possession. The mere fact B
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 &foresaid 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 C
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. 1be order and judgment of the Court of
Small Causes Ahmedabad dated 18th of August, 1977 are restored.
The suit for possession is accordingly dismissed. The appellant herein D
is entitled to the costs throughout.

P.S.S. Appeal allowed.