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TMI Blog2005 (10) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... two surviving sons namely, Naranjee and Makeklal. There was a partnership firm consisting of the members of the joint family. The building in question was let out to the firm. The firm was the tenant and later on it was converted into a private limited company. In a partition, the major portion of the building was allotted to the group represented by the landlords. Gradually, the interest of the landlords in the company was taken over by the members of the family representing the tenant's group. The property scheduled to the rent control petition was a major portion of the building which was admittedly set apart to the share of the branch of the family represented by the landlords. The landlords filed a suit for eviction on the ground that the respondent Nos.5,6 9 (herein) had completed their education and were sitting idle and they wanted to start business of their own in the scheduled building and they needed the scheduled building for their own occupation at Calicut. Therefore, they claimed eviction of the tenant under Section 11(3) of the Act. They also pleaded the ground of sub-letting to a tailor who was impleaded as a party in the rent control proceedings. It was plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to the bona fide need of the landlords and secondly he also sought protection under Section 11(17) of the Act that the appellant- tenant had been in possession of premises since 1940, therefore, appellant is entitled to protection under Section 11(17) of the Act. First of all we shall take up the question of bona fide need of the landlords. So far as the partition of the property and the present premises coming to the share of the landlords are concerned, there is no dispute that the portion of the building has come to the share of the landlords and they are the owners as a result of the partition of the family properties. But the question is whether the landlords who are the owners of the portion of the building have substantiated the allegation with regard to the bona fide need or not. We have gone through the findings of the trial court as well as that of the appellate authority and the High Court and after closely scrutinizing the same, we do not think that the finding recorded by appellate court and the High Court can be interfered by this Court on the ground of being perverse or without any basis. The landlords have led evidence to show that one of their sons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they cannot wait till the appellant is evicted from the premises in question. It is common experience that landlord tenant disputes in our country take long time and one cannot wait indefinitely for resolution of such litigation. If they want to expand their business, then it cannot be said that the need is not bona fide. It is alleged that one of the sons of the landlords has settled in the U.S.A.. That does not detract from the fact that the other sons of landlords want to expand their business at Calicut. Indian economy is going global and it is not unlikely that prodigal sons can return back to mother land. He can always come back and start his business at Calicut. On this ground we cannot deny the eviction to the landlords. In support of the plea of bona fide requirements by the landlords, learned senior counsel for the respondents sought to support the same by placing reliance on the decisions of this Court, in case of Ramkubai (Smt.) deceased by LRs Ors. v. Hajarimal Dhokalchand Chandak Ors. reported in (1999) 6 SCC 540, it was observed that B was unemployed on the date of filing of the suit but in the meanwhile started some business and in that context, their Lordshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... altogether. Thus, we are of opinion that the view taken by the first appellate court as well as by the High Court appears to be justified and there is no reason to take a contrary view of the matter. So far as the finding of the first appellate court and that of the High Court with regard to the eviction of the tenant on the ground of sub-letting material change in premises under Section 11(4)(I ) (ii) is concerned, that has been held against the landlords and there is no cross-appeal before us. Therefore, we need not go into merits of the findings of the courts below. However, another argument which has been very seriously contended by learned counsel for the appellant was that the premises in question were in the possession of the tenant prior to 1940. Therefore, the appellant is entitled to protection under section 11(17) of the Act. Relevant provisions of the Act read as under : Section 11 (17) Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st April 1940 as a tenant, shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any members of his family dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the three partners continue to carry on the business in banking, piece-goods and yarn. This deed further recited that the agreement dated 1918 was revoked and that the affairs of the firm would be regulated by the new agreement. Later, by an instrument dated October 30, 1943, after the retirement of certain partners and admissions of new partners, the parties thereto agreed to carry on as one single partnership the business carried on by the two partnerships constituted under the deeds dated May 30, 1939. Ultimately, under an agreement dated February 7, 1948 the business was taken over by a company with effect from November 13, 1947. But the question before us is when the new company came to be constituted in 1948 it had old partners or not and what is the nature of this company. We were also taken through necessary evidence of the tenant to substantiate that all the old members of the firm continued when the new firm was constituted in 1948. But after going through the evidence it does not transpire that in fact all the old members of the earlier partnership firm continued to be the directors of the newly constituted company i.e. M/s. Sait Nagjee Purushotham Co. Ltd. a priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the courts below and observed that both the Rent Control Court and the Appellate Authority rightly held that tenancy commenced only in the year 1948 and hence the tenant cannot claim the protection of Section 11(17) of the Act. In view of this concurrent finding by all the Courts below there was hardly any scope to pierce the corporate veil. However, learned counsel very strenuously urged that the facts given in the earlier decision of this Court with regard to this firm in an Income-tax matter may be taken into consideration de hors the actual evidence led in the civil suit. We cannot consider the facts pleaded in another case with regard to the firm but in order to substantiate that the same firm was occupying the premises on 1.4.1940, the tenant has to lead specific evidence so as to claim protection under Section 11(17) of the Act in this suit. We have ourselves gone through the evidence adduced in this case to find out whether any evidence has been led by the tenant to show that the same partnership firm continued when it was converted into the private limited company registered under the Companies Act with the same Board of Directors. But we regret to say that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a company in which he had a controlling interest and of which he is the chief executive and the managing director. He is in possession of the premises. His sons and wife are the other share-holders with him. In my opinion there is no subletting or parting with possession. As against this learned counsel for respondent has invited our attention to a recent decision of this Court in the case of Singer India Ltd. vs. Chander Mohan Chadha Ors. reported in (2004) 7 SCC 1 wherein the decision in Madras Bangalore Transport Co.(West) (supra) was also considered. This Court after considering the aforesaid decision observed as follows: This case has been decided purely on facts peculiar to it and no principle of law has been laid down. Their Lordships also observed that in order to find out the real identity of the new firm or private limited company, one has to lift the corporate veil and examine whether the same partners continue or not. In this connection, learned counsel for respondent invited our attention to another decision of this Court in the case of Electrical Cable Development Association vs. Arun Commercial Premises Cooperative Housing Society Ltd. Anr. report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of company then in that case necessary evidence will have to be led to show that for all purposes it is same. In this case, ESSO a private oil company was merged by virtue of Section 7 of the Esso (Acquisition of Undertakings in India) Act, 1974. On coming into force of this Act, the pre-existing tenancy rights held by Esso Company with the appellant initially stood transferred and vested in the Central Government and thereafter it became a Government company known as Hindustan Petroleum Corporation Limited. In that context, their Lordships held that the premises were occupied by Esso which has been acquired by the Central Government under the enactment of the Parliament and therefore it will not become a sub-tenant. In the case of Janki Devi (Smt.) Anr. vs. G.C.Jain reported in (1994) 5 SCC 337(II), the premises were let out for being used as a school under the name and style of Tagore School by a society registered under the Registration of Societies Act. The respondent landlord sought to evict lessee on the ground of subletting in favour of the society. The appellant was the secretary of the society. But the school was run by different management. Their Lordships observed t ..... 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