Kapur, J.:— This is a revision against a judgment and decree of the Senior Subordinate Judge of Delhi allowing the appeal of the tenants in regard to the decree of eviction passed against them by Mr. Chandar Gupta Suri, Subordinate Judge 1st Class, Delhi, dated the 21st of May, 1949.
2. Hira Lal, the petitioner before me, is the landlord and the respondents, Gian Singh and Company and others, are the tenants. On the 13th of September, 1943, Shiam Bihari defendant No. 2, who was one of the partners of the firm, Mange Lal Ramesh Chandra, executed a rent note in regard to shop No. 2038 situate in Cloth Market, Delhi. The-total monthly rent was Rs. 48/14/- and there was a stipulation not to assign. On the 27th of November, 1947, the landlord, Hira Lal, gave notice for eviction on the grounds that the rent was in arrears, that the tenants had assigned, sublet or otherwise parted with the possession of the whole of the premises and that he bona fide needed the premises for his own use. On the 20th of January, 1948, a suit for eviction and for arrears of rent amounting to Rs. 348/8/- from the 22nd of June, 1947 to the 14th of January, 1948, was brought on the grounds, (a) that rent had not been paid, (b) that the premises had been assigned, sublet or otherwise parted with and (c) that the premises were bona fide required for the personal requirements of the landlord. In reply the tenants denied these allegations. They pleaded that there was no parting with possession but the same partnership was carrying on business in the premises and that defendants Nos. 5 and 6 were now partners in the firm. A separate written statement on behalf of defendants Nos. 1 to 4, the purport of which was practically the same as of Gian Singh and Company, was filed. When the defendants appeared for the first time on the 18th of February, 1948, Mr. Bishan Parshad represented defendants Nos. 2 to 4 and Mr. Page: 279Harbans Singh defendants Nos. 1, 5 and 6. The defendants applied for adjournment as their written statements were not ready and they were allowed to file the same on the 23rd of March, 1948. No money was deposited, nor was an offer of deposit made on the 18th of February, 1948. On the 21st of February, 1948, the defendants applied for being allowed to deposit the arrears of rent in Court. They actually made the deposit on the 3rd of March, 1948, and on the 23rd of March, 1948, the written statement was filed. The trial Court decreed the suit and held that Shiam Bihari was a partner, that the partnership between the defendants had not been proved and that they were not partners and it was a case of surrender of possession, that the arrears of rent were deposited in time and that the shop was not required for the personal use of the plaintiff.
3. On the 28th of May, 1949, Gian Singh & Company filed an appeal in the Court of the Senior Sub Judge, and on the 21st of March, 1950, the respondent Hira Lal made an application under Order XLI rule 27, Civil Procedure Code, for additional evidence which consisted, (1) of the written statement of Gian Singh and other defendants dated the 13th of January, 1950, in another suit, in which they denied the partnership which had been set up by the in the present suit and (2) the statement of Gian Singh (in the same suit) before issues of the same date. On the 16th of May, 1950, the appellants field an application in reply to the application of the plaintiff for additional evidence, and as far as I have been able to see the record, no order was passed on this application by the Senior Subordinate Judge. On the 27th of June, 1950, the Senior Subordinate Judge, in a somewhat involved judgment, held that no parting with possession had been proved as Gian Singh and Co. had become partners in the firm, that it had been proved by defendants Nos. 2 to 4 that there was a partnership between them and defendants Nos. 5 and 6 in the firm and even if the partnership was not proved the parting with or surrender of possession had not been proved. Although the point seems to have been present to his mind, the Senior Subordinate Judge gave no finding on the point as to whether the arrears of rent were paid as required by section 9(1)(a) proviso of the Delhi Rent Control Act.
4. The judgment of the Senior Subordinate Judge is, in my opinion, most unsatisfactory and lacks clarity. The discussion of the points which must have been raised before him, consists of one paragraph which extends to about six and a half pages. It is not clear what are the points for determination and what his finding on each point is. I have received no assistance from the judgment, and as there are no clear findings I have had to hear the revision as if it was a first appeal.
5. Counsel for the petitioner has first submitted that the arrears of rent were not deposited as required by section 9(1)(a) proviso of the Delhi Rent Control Act. It is admitted that the arrears of rent were deposited on the 3rd of March, 1948. The question for decision is whether the 18th February, 1948, was the first ‘day of hearing’. ‘First day of hearing’ is not defined in the Rent Control Act. In the Civil Procedure Code, under Order IX rule 1, it is stated:—
“On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.”
6. In rule 3 of this order it is provided:—
“Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.”
7. Under Order IX rule 6 it is stated:—
“Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then,………..”
8. In rule 7 it is said:—
“Where the Court has adjourned the hearing of the suit ex parte, and the defendants, at or before such hearing, appears and assigns …..”
9. It was contended on the basis of these provisions that the day fixed in the summons for the defendant to appear is a day of hearing which is clear from the use of the word “hearing” in rules 3, 6 and 7. Therefore the ‘first day of hearing’ would, according to counsel, be the day when the defendant has to appear in answer to the summons issued to him. He also referred to a judgment in Arunachallam Chettiar v. Shivalingam Chettiar A.I.R 1927 Mad 799, where it was held that the phrase “when the suit is called on for hearing” when appearance under Order IX is in question, means ‘on the first day of hearing’.
10. Respondents' counsel on the other hand submitted that the first day of hearing had no reference to the day when the case is first taken up by the Court as would appear from Order IX, but would mean the day when the Court did something in furtherance of the progress of the case. He, firstly, relied on Kalloo…Defendant v. Mt. Imaman…Plaintiff . A.I.R 1949 All. 445, which was a case under Order VIIT, rule 1, Civil Procedure Code, and it was there, held that the first hearing in a suit commences when the Court looks into the pleadings in order to formulate the points in controversy between the parties and this is possible only after the defendant has filed his written statement. This case, I do not think, is of much assistance, because the question to be decided is as to the effect of retraction by a Mohammadan husband of allegations of adultery made by him against his wife which did not depend upon the determination of the word “hearing” as used in the Code.
11. The next case relied upon was, Manohar Dass v. Biradri Sheikhupurian A.I.R 1936 Lah. 280. That was a case under Order XVII rules 2 and 3, Civil Procedure Code, and “hearing” was held to mean the hearing on which the Judge would either be taking evidence or hearing arguments and would be hearing questions relating to the determination of the suit.
12. Reliance was then placed on Mst. Barkal Bibi v. Fateh Ali A.I.R 1949 Lah. 63. That was no doubt a case under Order IX, R. 3, Civil Procedure Code. Cornelius J., there held that the expression “hearing of suit” menns a “hearing on which the Judge would either lake evidence or hear arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it”. He relied on and followed the previous Lahore case Manohar Das v. Biradri Sheikhupurian A.I.R 1936 Lah. 280. But as I have said before, that was a case under Order XVII rules 2 and 3 and not under Order IX rule 3, Civil Procedure Code. With very great respect I am unable to agree with the interpretation put on this phrase in this judgment.
13. Counsel next relied on V. Swarnam Iyer v. Veeragu Ammal A.I.R 1943 Mad. 286. That was a case under Order XIII, rule 1, Civil Procedure Code, and was a Small Cause suit, and it was held that in the case of ordinary suits, the first hearing is the hearing for the framing of issues and in small cause suits it Page: 281is the date which the Court appoints for the trial to begin after the pleadings have been completed.
14. Order XIII provides for production, impounding and return of documents. According to the provisions of rule 1, on the day on which the defendant is to appear and answer according to summons, both parties have to be present and the Court may hear the parties (Order IX rule 1). On that date both the parties shall appear and under Order XIII rule I bring in all the documents on which they rely and the Court is bound to receive them if they duly put them in: see rule 2. Even according to this rule the first day of hearing is the date fixed in the summons for the defendant; to appear and answer the plaintiff's claim. None of the above mentioned cases is really of much assistance because the Legislature has used the word “first day of hearing”. Under the provisions of Order IX rule I, Civil Procedure Code, the hearing takes place on the day when the defendant is ordered to be summoned and appears. In my opinion, the words “first day of hearing” must mean the day when the defendant appears in answer to the summons and the Court takes up the case in” accordance with the Civil Procedure Code. (O. IX r. I.C.P.C)
15. The next question is one which falls within section 9(1)(a)(ii) of the Delhi Rent Control Act which provides for eviction, if “the tenant without the consent of the landlord has, whether before or after the commencement of this Act, assigned, sublet or otherwise parted with the possession of the whole of the premises”. On this part of the case what has been contended by the defendants is that there was no assignment etc. and that defendants Nos. 5 and 6 had become partners in the firm Mange Lal Ramesh Chand. Reliance was placed by the defendants, firstly, on a deed of partnership dated the 15th of July, 1947. This is an unstamped document. It is alleged to have been scribed by Mangat Singh D.W 7 who is alleged to be a partner in the firm. The date, 15th of July, 1947, is in ink different from the ink used in the rest of the document. Objection was taken to the admissibility of this document. It is claimed that at the time when the partnership deed was written copies were prepared which were also signed by the different partners and were handed over to each of the partners. The stamp paper on which the partnership deed was written, it is alleged, was with Piara Singh who was shot at the Shahdra Railway Station and while he was unconscious his trunk containing the document was removed and that is the reason for the document on the stamp paper not being produced. Piara Singh has appeared as a witness, D.W 6. It is not stated when he was shot at, nor why he should be carrying the partnership deed with him during the riots. It is significant that the deed of partnership is dated the 15th of July, 1947, which is before the partition. It has not been proved to my satisfaction, nor is there evidence to show, that Gian Singh, who was carrying on business in Kharian, did come to Delhi before the partition. The learned Senior Subordinate Judge has held the copy of the partnership deed on a plain sheet of paper to be admissible in evidence on a somewhat unusual ground. He has held, in the first place, that no objection was taken to the admissibility of this copy, and, secondly, that if it was taken and the document was admitted in spite of objection, then no objection can be taken in the appellate Court. The learned Judge is in error on both these points. I find that as soon as this document was produced objection was taken and when Piara Singh wanted to prove it objection was again taken, but it Page: 282was admitted subject to payment of penalty. The document was not accepted and it has not yet been exhibited and even now there is no exhibit mark on it. Counsel for the respondents submitted that this was not really a copy which was hit by the rule that, “in the absence of the original a copy cannot be produced”. At the time when the partnership deed is alleged to have been executed a deed on a stamp paper was written. According to Piara Singh, copies were made of this document which were signed by all the alleged partners and it is therefore not a copy, but is a counter part of the deed of partnership and it can be admitted provided the proper stamp fee and penalty is paid, and that is what the Subordinate Judge has done in this case. Looked at from this point of view, perhaps, the document is not inadmissible for want of proof of the loss of the original deed on a stamp paper because there is nothing to prevent a person to enter into a partnership and to evidence that by a deed written on a plain sheet of paper. The only penalty that they incur is that if it is brought into a Court of law for the purpose of evidence it will be admitted on proper penalty being paid.
16. Even if this document is admissible the other objection of the plaintiff still remains, and that is that this document was not produced at the first date of hearing as required by Order XIII rule 1, Civil Procedure Code, nor was it produced when the other documents were produced. I find that the defendants' pleader filed this document and the other documents on the 12th of August 1948 and they were only put on the record subject to the objections of the plaintiff. On the evidence which has been produced I am unable to believe that this is a genuine document. As have Said before, it was produced at a late stage. It is not on a stamp paper. It is not written by a regular scribe but by Mangat Singh who claims to be one of the partners. The date, the 15th of July, 1947, which it bears is very suspicious as the ink appears to be different and it has not been proved that Gian Singh and the other alleged partners had come away from Kharian on this date. On the evidence which has been produced, I am of the opinion that the loss of the original document on the stamp paper has not been proved. Apart from the fact that people do not keep carrying about such documents during riots, there is intrinsic evidence which has been produced on the file and which I shall discuss later that this document is spurious. Some of it I have already discussed. Firstly, I am not convinced that people from Kharian, when entering into a partnership with merchants in Delhi, would have been content with getting a document of this kind written by an alleged partner and not go to a regular deed writer, nor is it possible that if there was a partnership the only witnesses in its favour would be Gian Singh and his friends, and partners in the original firm, Mange Lal Ramesh Chand, would not come forward to support it by their evidence.
17. Then, the shares which the different partners had is very significant indeed. Gian Singh has a twelve-anna share. Piara Singh and Mangat Singh have one anna share each and Mange Lal and Bishambar Dass have only two-annas share, and Shiam Bihari defendant No. 2, who executed the original deed of rent has vanished altogether. The finding of the trial Court on this point is that he was a partner. I have not been able to find out what was the finding of the Senior Subordinate Judge on this point and where it is. Why this man's name should be removed from the new partnership, I cannot discover and no reason has been given by counsel.
18. The name of the partnership was Gian Singh & Company. The name of the original partnership vanished. The whole of the capital was paid Page: 283by Gian Singh and he was in custody of both the cash and the accounts of the partnership and he had full control over both. He could keep the money with himself or deposit it with the bank. The capital was to carry interest at the rate of eight annas per cent, per mensem and was to be paid before the profit and loss could be calculated. The other conditions of the alleged partnership also show that the partnership is an illusory thing.
19. The evidence of Gian Singh as well as the terms of the alleged part-nership deed show that both the rent and electric charges were to be paid by Mange Lal and Bishambar Das. The books of the alleged partnership have not been produced, nor is there any proof that the rent and electric charges were paid out of the partnership funds. The inclusion of this clause in the partnership deed seems to show that the whole thing was a camouflage. Gian Singh could not tell us that in the account which he had with the bank he had described himself as the sole proprietor of the partnership or not. Another significant fact with regard to this partnership, which has come out from the evidence of Gian Singh, is that when he entered into the partnership, Firm Mange Lal Ramesh Chand had no kind of stocks in the shop and all that was lying there were empty racks which had been taken over by the firm Gian Singh and Company. Although Bishambar Dass works at this shop, Gian Singh does not know whether he has any other occupation and whether he is also carrying on the profession of a Vaid.
20. Besides this evidence the conduct of the tenants is also very significant. When notice was given to them alleging that they were guilty of assigning, subletting or otherwise parting with possession, they gave no reply to the notice. Outside the shop there is no longer the board of Firm Manse Lal Ramesh Chand but of Gian Singh & Co. The new firm Gian Singh & Co., has not been registered under section 69 of the Indian Partnership Act nor have any books been produced showing that the partnership exists and who the partners are.
21. One other significant fact which has been missed by the Senior Subordinate Judge is the application which was made under Order XLI rule 27, Civil Procedure Code. The Senior Subordinate Judge has not considered this application nor given his finding as to whether the plaintiffs were entitled to the production of fresh evidence or they were not. In the circumstances of this case this was a very important matter and if the learned Judge had considered it I have no doubt that he would have come to no other conclusion but this that there was no partnership.
22. From the above discussion I am of the opinion that there is no partnership proved between Firm Mange Lal Ramesh Chand on the one land and Piara Singh, Gian Singh and Mange Lal on the other. The document which has been produced does not appear to be genuine. There is intrinsic evidence which militates against the existence of a partnership. The partners of the firm, Mange Lal Ramesh Chand, have not appeared in the witness-box to support the existence of the partnership, nor has it been proved that Gian Singh and others did come to Delhi on the 15th of July, 1947. The Senior Subordinate Judge seems to have been misled by the idea that the onus of proving that there was no partnership was on the plaintiff. This case could not be decided on the abstract principle of onus.
23. Counsel for the respondents then submitted that the burden of proving assignment or parting with possession was on the plaintiff. As I have said above, an abstract principle of onus is not helpful in Page: 284deciding this case. On whomsoever the onus may be, the circumstances in this case are quite clear that no partnership has been proved, and once the partnership is held not established it becomes a case of assignment or parting with possession under section 9(1)(b)(ii) of the Delhi Rent Control Act. On the finding that no partnership is proved and that Mange Lal Bishambar Das and Shiam Bihari have nothing to do with the partnership Gian Singh & Company, the plaintiff's case must be held to be proved as indeed, it was held by the learned Subordinate Judge. I, therefore, hold that the plaintiff is entitled to succeed both on the grounds of defendants' non-payment of rent as well as of assignment or parting with possession by them under section 9(1) of the Delhi Rent Control Act, and I, therefore, allow this revision, set aside the judgment and decree of the Senior Subordinate Judge and restore that of the trial Court. The rule is therefore made absolute. The petitioner will have his costs in this Court and in the Courts below. Counsel's fee Rs. 75.
24. Rule made absolute.
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