V.S. SIRPURKAR, J.

( 1 ) THIS is a Writ Petition by tenants challenging the orders passed by the Rent Controller as also the Collector by which the application filed by the respondent/landlord asking for a permission to issue quit notice has been allowed.

( 2 ) AN application came to be made in this case by the landlord under various counts. The present application has been filed on 31-7-1986, under clause 13 (3) (iii), (iv), (v), (viii) and (ix) of the C. P and Berar Letting of houses and Rent Control Order, 1949 (hereinafter called the Rent Control order" ). The contention of the landlord in this application was that though initially these premises were given on lease for running a milk business, the tenant had inducted the original non-applicant Nos. 2 and 3 Shashikant and harish as the sub-tenants and those sub-tenants had started a hotel. It was inter-alia contended by the landlord in his application that the induction of original Applicant Nos. 2 and 3 i. e. the Petitioner Nos. 2 and 3 herein was without his permission and that the present Petitioner No. 1 was recovering the rent from the Petitioners Nos. 2 and 3. On the question of sub tenancy, it is also contended that the entire tenement was occupied by petitioner Nos, 2 and 3 and in fact, the Petitioner Nos. 2 and 3 had paid huge amount to non-applicant i. e. the Petitioner No. 1. On the question of Clause 13 (3) (v) of the Rent Control order, the plea was that the Petitioner No 1 had constructed a huge bungalow near Sant Tukaram Hospital, akola where he had started the business of hotel, kirana and flour mill. It was prayed that the Petitioner No. 1 did not need the premises at all and he had left the premises inducting the Petitioners Nos. 2 and 3 particularly because he had no interest left As regards Clause 13 (3) (iv) of the Rent Control order, it was pointed out by the landlord that in fact the Petitioner No. 1 had specifically agreed that he would not let out the premises to anybody nor would induct anybody else for using the premises in question and the petitioner No. 1 by the inducting the Petitioner Nos. 2 and 3 had committed a breach of this agreement. It is also pointed out that in fact, the Petitioner no. 1 had specifically agreed at the time of taking the premises on rent that he would do the business of selling milk only and would not run any hotel or a restaurant or so. However, in breach of this covenant, the Petitioner No. 1 ran a restaurant called "pande Uphar Gruha". It was also contended that the "pande Uphar Gruha" was closed and the new hotel was opened with the aid of the petitioner Nos. 2 and 3, who started running the business of hotel. It was, therefore, contended that the original purpose was completely changed. As regards the plea on Clause 13 (3) (viii) and (ix) of the rent Control Order, it was contended that the hotel business ran by the petitioner Nos. 2 and 3 was causing nuisance to the landlord who was having his residential premises in the same building. It was contended further that unauthorised pan-shop was opened by the Petitioner Nos. 2 and 3 which attracted unsocial elements and that the said petitioners were doing the business of gambling (Warali-Matka ). It is also said as regards the plea of nuisance that because of running of Bhatti and because of storing of inflammable articles, there was lot of nuisance caused. A common plea was, therefore, raised that the Petitioner Nos. 2 and 3 were doing the acts of waste and were using the premises in such a way so as to endanger the premises, besides causing the nuisance to the landlord who was staying in the same building.

( 3 ) THIS application was opposed by the tenants. However, strangely enough, it was tried to be pleaded by the Petitioner No. 1 that though there were the agreements prohibiting the user of the premises for the purposes of hotel, they were only nominal. It was said further that the landlord was a lawyer and used to prepare all kinds of documents which used to be blindly signed by the Petitioner No. 1. The occupation of Petitioner Nos. 2 and 3 was admitted. However, it was contended that the Petitioner No. 1 had entered into a partnership with Petitioner Nos 2 and 3 for the purposes of running a hotel and as such, there was no sub-letting to petitioner No. 2 and as regards the change of user, the plea raised by the petitioners was that in fact immediately after the induction of Petitioner No. 1 as the tenant, besides selling milk he had started a hotel business and that was never objected to by the landlord for a period of 15 years and that it was only for the first time in the year 1981 that the landlord had served the Petitioner No. 1 with a notice disapproving the user of the tenanted premises for the purpose of a restaurant. The contentions regarding the alternate accommodation having been secured by the tenant were also opposed on the ground that in fact the Petitioner No 1 had required and was always in need of the premises in question because he was running a hotel in partnership with the Petitioner nos. 2 and 3 The other contentions also came to be opposed by raising the pleas that there was no nuisance caused and that there was also no waste effected because of the acts of the petitioners, either No. 1 or Nos. 2 and 3.

( 4 ) WHAT is noteworthy about the pleadings of the present petitioner before the Rent Controller is that there is absolutely no reference regarding there being any partnership-deed in existence. There is no witness to the partnership between the Petitioner No. 1 and the other two petitioners. Be that as it may, the parties went to the trial on the basis of these pleadings.

( 5 ) THE first Court, i. e. the Rent Controller allowed the application on all counts. He held that the tenant-petitioner No. 1 had sublet the premises in favour of the Petitioner Nos. 2 and 3. He also proceeded to hold that since the Petitioner No. 1 had secured an alternate accommodation, he did not require the premises in question. He further held that there was complete change effected in the tenement in so far as its user is concerned. He also recorded a positive finding to the effect that the Petitioner Nos. 2 and 3 had caused damage to the structure and had also been causing nuisance to the landlord. He, however, held that the landlord had not proved his personal need nor was it essential to vacate the premises for causing essential repairs.

( 6 ) IN fact, the landlord bad earlier filed one more application under the Clause 13 (3) (ii), (iii) and (iv) of the Rent Control Order but that is a subject-matter of the different petition which is Writ Petition No. 900/88 which will be separately dealt. In the present petition, we are concerned only with the application dated 31-7-1986 which is referred to earlier.

( 7 ) TWO appeals were preferred and they were disposed of by common order passed by the Collector. While one was preferred by the tenant against the findings recorded against the tenant, the second was filed by the landlord against the dismissal of his claim on the grounds under Clause 13 (3) (vi) and (vii) of the Rent Control Order. The Collector dismissed the appeal of the tenant confirming the order of the Rent Controller completely on all counts. This has given rise to the present petition. The Collector also dismissed the landlords appeal In so far as it pertained to Clause 13 (3) (vi) and (vii) of the rent Control Order, The landlord has not filed any proceedings to challenge the appellate order. Therefore, there would be no question of considering the grounds under Clause 13 (3) (vi) and (vii) of the Rent Control order and this Court would be left to consider the grounds which have been found to be against the tenants.

( 8 ) SHRI S. C. Mehadia, the learned Counsel for the petitioners, strenuously took me through both the orders as also tried to contended that there were some factual mistakes and errors in the order. The contention of Shri mehadia was that the Rent Controller had not read the evidence correctly neither had he tried to interpret the documents on record in the correct manner and further had failed to note the important and material evidence on record According to him, the Appellate Authority had mechanically confirmed the order without bothering to consider the evidence in any manner. In so for as the sub-letting is concerned, Shri Mehadia pointed out that it was a settled legal position that if the tenant entered into a partnership, then the occupation of the tenanted premises by the partnership firm would not and cannot amount to sub-letting. In support of his contention, Shri Mehadia relied on the reported decisions : Priamvada Devi Pramodkumar Pande v. Hiralal Kalicharan Yadav and another, 1982 Mah LJ 59 and Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and others, AIR 1982 SC 1782. According to Shri Mehadia it was proved position that there was a partnership-deed in between the Petitioner No. 1 on one hand and the Petitioner nos. 2 and 3 on the other. He pointed out that the Petitioner No. 1 had entered the witness-box and had reiterated this partnership and had also asserted that the restaurant which was going on in the tenanted premises was that of the partnership firm and, therefore, there could not be a plea of subletting.

( 9 ) AS against this, Shri J, N. Chandurkar, the learned Counsel for the respondents, submitted that in the first place the original copy of the so-called partnership-deed was not produced. What was produced was a xerox copy and even if the Rent Controller accepted the xerox copy in the evidence and included in the record of the proceedings, even then the said copy could not be read being inadmissible. He pointed out that in fact the Petitioner nos 2 and 3 had not chosen to enter the witness-box though there were number of allegations made against the Petitioners Nos. 2 and 3. Shri chandurkar further contended that the evidence of Petitioner No. 1 alone could not be of any assistance in the absence of the evidence of Petitioner nos. 2 and 3 as it was an admitted position that the Petitioner Nos. 2 and 3 were occupying the rented premises also and, therefore, according to him, the Petitioner Nos. 2 and 3 should have substantiated the facts regarding the partnership and should have also brought to the notice of the Court the active participation of the Petitioner No. 1 in partnership firm. Apart from this, Shri Chandurkar contended that this partnership was nothing but an eye-wash and a cloak and in fact, such partnership did never exist and is only a creation to hoodwink the landlord and deprive him of his plea of sub-tenancy.

( 10 ) I have gone through the original rent-note as also the copy of the partnership-deed. I have also been taken through the evidence of the Petitioner no 1. In fact, at the beginning of the hearing, Shri Mehadia made a request that the records should be called. However, considering the fact that the orders have been passed in defails and further considering that the going in the evidence would be unnecessary, his request for adjournment was declined on that count. Still the Court has been taken through the evidence of the tenant-petitioner No. 1 as also the agreement and the partnership-deed. We will first advert to the lease-deed.

( 11 ) IT is an admitted position that there was a document executed in between the Petitioner No. 1 on one hand and the landlord on the other. In fact, there were more than one documents. It is also an admitted position that there is a specific recital in that document to the effect that the Petitioner no. 1 tenant shall not introduce anybody in the shop by way of tenancy or otherwise. According to Shri Mehadia, this was a convenant specifically prohibiting the sub-tenancy only but the said covenant could not have the effect of prohibiting the Petitioner No. 1 from entering into the partnership with some other persons. In fact, the original plea of the petitioner Nos. 1, 2 and 3 was that there was a partnership between the Petitioner No. 1 on one hand and Petitioner Nos. 2 and 3 on the other. The copy of the partnership deed which has been considered, however, belies this claim of the petitioners, it is not in between the Petitioner No. 1 on one hand and the Petitioner nos 2 and 3 on the other. Instead, it is in between the Petitioner No. 1 fulchand on one hand and the Petitioner No. 3 Harish and one Mrs. Geeta chandrakant Doshi on the other. Fact, therefore, remains that the Petitioner no. 2 Shashikant is nowhere to be found either as a partner or otherwise. There is a clear-cut admission made by the Petitioner No. 1 that besides himself petitioner No. 2 Sashikant and Petitioner No. 3 Harish were also in the occupation of the premises. Under such circumstances, there is a variance in between the pleadings and the evidence tendered on behalf of the petitioners which tends to be fatal to the case of the petitioners of partnership. One thing, therefore, becomes clear that though Petitioner No. 2 was in occupation of the premises in question, there is no partnership between him and the Petitioner No. 1 who is the original tenant.

( 12 ) APART from this, the fact that there was a specific covenant in between the landlord and the Petitioner No. 1 prohibiting creation of any partnership or introduction of any third person on the rented premises, under such circumstance, it is clear that the tenant has chosen this novel way of introducing the so-called partnership-deed to get out of that covenant. There is yet another aspect to the question of sub-tenancy. The tenant - Petitioner no. 1 who alone entered in the witness-box had to admit that there was nothing he could produce in respect of his ownership of the moveable property in the tenanted premises. He further had to admit that the said partnership was not a registered partnership and that he could not produce any documentary proof regarding the maintenance of accounts, payment of taxes or otherwise. All this will clearly go to show the Petitioner No, 1 was really not concerned with this partnership and had nothing to do about it and it was merely in order to hoodwink the claim of the landlord that the document of partnership was created. Shri Ckandurkar is, therefore, justified, in showing that the said partnership-deed was nothing but a cloak and an eye-wash. The Rent Controller in his evidence has considered this aspect in great details. The Rent Controller has observed that in fact as per the original lease agreement, the tenant had agreed that he would carry on the business of selling milk in the rented premises. However, in complete breach thereof, he had started a restaurant. Shri Mahadia pointed out that though the tenant had started the hotel business in breach of the agreement way back in 1966 arid continued, the same, there was not a whisper of disapproval from the landlord. However, that aspect cannot be considered while we are considering the plea of sub-tenancy. As a matter of fact even as per the pleadings the said partnership was created in the year 1987. Even then when the Petitioner No. 1 is not able to produce a single document in support of his plea that he is a partner in the hotel business, one has to say that the plea of partnership is really left unsubstantiated. After considering the evidence and the reasons given by the Rent Controller, I am of the view that both the Courts were right in recording a finding that the Petitioner No 1 had sublet the premises to the Petitioner Nos. 2 and 3 and in fact, the so-called partnership is non-existent.

( 13 ) I have gone through the cases cited by Shri Mehadia regarding the subletting plea. In the first case Priamvada Devi Pramodkumar Pande v. Hiralal kalicharan Yadav and anothers (cited supra), it is held that if a tenant enters into a partnership business, the use of the premises by partnership firm does not attract the provisions of Clause 13 (3) (iii) of the Rent Control Order. There is absolutely no dispute with the proposition. However, here is a case where the existence of partnership itself has not been found to be genuine by the Courts below. In fact, the finding is that the plea of partnership is raised only as an eye-wash and in fact, there was no partnership whatsoever. Similar is the ratio of the other case cited by Shri Mehadia, i. e. Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and others, AIR 1987 sc 1782 [LQ/SC/1987/457] . However, again on facts this case would be entirely inapplicable to the facts of the present case. In the reported decision, the finding on the existence of partnership is in favour of the tenant and was an accepted position that a partnership was operating in fact. The finding in the present case is to the effect that there was no partnership at all and, therefore the two rulings relied upon by Shri Mahadia are of no help to him.

( 14 ) AS regards the plea under Clause 13 (3) (iv), of the Rent Control order, i e. about the change of user, Shri Mehadia invited my attention to the fact that the Petitioner No. 1 had specifically reiterated in his evidence that though he had agreed to do only a milk business, he was running the hotel right from the year 1966. Shri Mehadia contends that if there was no objection taken by the landlord for the user of the shop as a restaurant or hotel, could the landlord make a grievance thereof for the first time after about 20 years ordinarily, the plea raised by Shri Mehadia is very attractive. However one cannot forget the fact that there is a specific agreement between the parties to the effect that the tenant would not use the premises for any other purpose like running a hotel, etc. The tenant had admittedly agreed in the Bhade-chithi (Exhibit A-2) that he would use the premises only for running the milk business. Admittedly, the premises were being used for running a restaurant, if that be so, merely because the landlord did not take an objection at the opportune time, the landlord cannot be deprived of this plea. Again it is to be seen that the complaint was mainly against the Petitioner Nos. 2 and 3 who have not bothered to enter into the witness-box and controvert the word on oath by the landlord regarding the change. This plea has been considered in great details by the learned Rent Controller as also by the appellate Authority. Shri Mehadia further contended that in fact this plea could not have been raised as in the earlier proceedings the plea raised by the landlord on this count was considered and the finding is against the landlord. Sbri Mehadia is right. However, this plea has been raised in Writ petition No. 900/88 which is pending at the instance of the present landlord. The finding on this plea will not be required to be given here. However, in fact though on merits the landlord was entitled to a permission on this count, in the present proceedings, the said permission cannot be granted as it is already dealt with in the earlier application.

( 15 ) I shall now consider the plea under Clause 13 (3) (v) of the Rent Control Order on the ground that the tenant has found an alternative accommodation and does not require the premises in question. The Rent Controller has found that in fact admittedly the tenant has built a house having six rooms in the city which was in his actual possession. It is also an admitted position that this house is constructed after the tenancy was created in respect of the present premises. The Rent Controller has also found that the tenant was doing same business in this house, i. e. he was running a flour mill and he was also doing the business of selling milk from those premises. Shri Mehadia very strenuously urged that unless a finding is recorded that the petitioner No 1 was running a hotel in the other premises occupied by him, the permission on this count cannot be granted. His contention was that if the tenant was running a hotel in the tenanted premises and the tenant comes into possession of some other premises, then unless it is shown that those other premises were worthy of running a hotel or were such which would be more useful to the tenant for running that very business, the permission could not be granted. The premise of this argument is wrong In fact, what is to be found is that such accommodation should be a suitable accommodation to the tenant. Now considering the suitability of those premises in the present case at least, the plea of Shri Mehadia cannot be considered for the reason that the tenant in this case had very specifically agreed to do the business of selling milk in the tenanted premises. He had also specifically agreed not to run a hotel in the premises. Now if in breach of the agreement with the landlord, the tenant runs a hotel then while considering the plea of landlord under Clause 13 (3) (v)of the Rent Control Order, it is not necessary for the landlord to establish that the other premises which have come in the occupation of the tenant were such where the tenant could run his hotel. In fact, the running of the hotel by the tenant by itself was against the lease agreement between the landlord and the tenant. The Rent Controller as well as the Appellate Authority are, therefore, right in holding that the tenant did not need the premises in question as he had found the alternative accommodation. In this behalf, it will be seen that both the Authorities below have recorded a finding that in fact the Petitioner No. 1 had no role to play in the so-called partnership and it was all a show managed by the Petitioner Nos. 2 and 3. The Petitioner no. 1 was merely a ghost and the said partnership did never exist. In view of that finding, it will have to be held that the tenant no more required the premises in question having secured an alternative premises. It is an admitted position by the tenant that he owned 3-4 buffaloes which he kept at his own house and he and/or his sons conducted the business of selling milk from his new premises. In view of this clinching admission, no further consideration is required regarding the plea. The Rent Controller as well as the Appellate authority were, therefore, right in recording a finding in favour of the landlord in this behalf.

( 16 ) AS regards the plea regarding Clause 13 (3) (viii), Shri Mehadia submits that both the Authorities below were in error to record a finding in favour of the landlord. According to him, the evidence fell short to record a finding that the property was being wasted and the tenant had committed acts of waste which were likely to impair the value or the utility of the house. I agree with Shri Mehadia on this question. There is absolutely no evidence led regarding any such act on the part of the tenant. In fact, there could not be such act committed by the Petitioner No. 1 who in fact had nothing to do with the running of the hotel in the premises when in fact, such hotel was being run only by Petitioner Nos. 2 and 3 and Petitioner Nos. 2 and 3 admittedly had no status of the tenants. The reasoning adopted by the Rent controller as well as the Appellate Authority is not convincing and cogent. The plea in that behalf is also put in a haphazard manner. The finding of the rent Controller as well as the Appellate Authority in respect of Clause 13 (3) (viii) is, therefore, set aside.

( 17 ) THAT leaves the finding under Clause 13 (3) (ix) of the Rent Control Order on nuisance. In this behalf, the tenant - Petitioner No. 1 has entered in the witness-box and denied that there was any nuisance. Plea regarding this aspect is to the effect that the Petitioner Nos. 2 and 3 have opened a pan-shop which remains open till late in the night. They also run a Bhatti in the said premises and because of the incessant visitors to the restaurant and the pan-shop, the landlord cannot enjoy his own property peacefully and the running of restaurant in the premises itself amounts to a nuisance. Though it was tried to be substantiated in the plea that unsocial characters come there for satta-betting, etc. this plea was not substantiated by leading any evidence by the landlord. However, his assertion in the witness-box to that effect has not been answered by or controverted by the Petitioner nos. 2 and 3. In fact, it was for the Petitioner Nos. 2 and 3 to refuse the charges made in the witness-box by the landlord to the effect that running of the hearth and running of the pan-shop there causes nuisance to himself and his family and he cannot enjoy his property peacefully. The petitioner No. 1 has undoubtedly entered into the witness-box and has tried to suggest that there cannot be any such nuisance. However, the word of petitioner No. 1 would fall short to meet the challenge raised by the landlord, particularly because the Petitioner No. 1 has no role to play in running that restaurant and he was merely a nominal person having left the premises to petitioner Nos. 2 and 3. In fact, the Petitioner Nos, 2 and 3 were the parties to the proceedings, had the chance to file their say and had also the chance to substantiate not only their plea but to demolish the case raised by the landlord. They could have shown by entering into the witness-box that there was absolutely no nuisance and that they were running the restaurant well within their rights as the partners and in fact, the partnership was a genuine affair. Nothing of the sort has been done by the Petitioners Nos. 2 and 3. The authorities below were, therefore, right in recording the finding in favour of the landlord that the running of the hotel, running of the hearth and running of the unauthorised pan-shop amounts to nuisance to the landlord.

( 18 ) THUS, on all counts except the one the orders of the Authorities below are found to be correct. In view of the findings, the petition deserves to be dismissed with costs and is so ordered to be dismissed with costs. Rule accordingly discharged.