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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2360 OF 2015
1] Miss. Zarina d/o late Abdul Karim,
aged about 70 years, Occ. Retired.
2] Miss. Kamarbano d/o Late Abdul Karim,
aged about 66 years, Occ. Retired,
Both resident of Sammiullah Khan Marg,
Sadar Bazar, Nagpur ...... PETITIONERS
...VERSUS...
1. Mohankumar s/o Kanhaiyyalal Sharma,
aged about 59 years, Proprietor of
M/s. Modern Scientific Co., Samiullah Khan
Marg, Sadar Bazar, Nagpur.
2. Parmeshwardayal s/o Kanhaiyyalal Sharma,
resident of 81-82/3, Shri Ram Krupa, Katol
Road, Rajnagar, Nagpur ...... RESPONDENTS
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Shri Masood Shareef, counsel for Petitioners.
Shri R.M.Sharma, counsel for Respondent no. 1
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CORAM: R. K. DESHPANDE, J.
th DATE : 27 MARCH, 2017 .
ORAL JUDGMENT
1] Rule made returnable forthwith.
Heard finally by consent of the learned counsels appearing for the parties.
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2] This petition is preferred by two landladies, who
were aged about 66 and 62 years respectively at the time when the Regular Civil Suit No. 376 of 2009 was filed for eviction and possession against the respondents-tenants. It was not in dispute that both the landladies were occupying the portion on the second floor of the building and they wanted to occupy the rear portion of the shop blocks in question on the ground floor. The need put forth before the trial Court was for demolition of the shop blocks in question so as to create ingress and egress and to have a space for parking of vehicles and for convenient use of the rear portion for residence. Two different suits were filed against two different tenants, occupying the shop blocks which are by the side of road and in front of the area which is proposed to be occupied on the ground floor by the plaintiffs. 2] Writ Petition No. 2504 of 2015 for eviction of one of the tenants in Shop Block No. 2 has been allowed by this Court by setting aside the decision of the lower appellate Court and restoring the decree for eviction passed by the trial Court. This petition arises out of the decree of eviction ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 01:18:25 ::: 3 wp2360.15.odt passed against the defendants-tenants by the trial Court in respect of Shop Block No.1, admeasuring 150 sq.feet, which has been set aside by the lower appellate Court. The original plaintiffs are before this Court in this writ petition. 3] The controversy involved in this writ petition on all other points is covered by the decision of this Court in Writ Petition No. 2504 of 2015. Hence, the reasons recorded therein shall be applicable in the present case also for the reason that the findings of both the Courts below are almost similar.
4] Shri R.M.Sharma, the learned counsel appearing for the respondent No.1 - tenant in the present case invites my attention of Order XXX, Rule 1 of C.P.C and submits that the agreement of tenancy was with the partnership firm, which was not joined as defendant in the suit. He submits that in the absence of partnership firm being joined, the suit in question was not maintainable. He does not dispute that there is nothing available on record to suggest that the partnership firm was registered, either at the time of entering into lease agreement or at the time of filing of the suit. The ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 01:18:25 ::: 4 wp2360.15.odt trial Court has relied upon the evidence of the defendant No.1 in paragraph 26 of its judgment, the portion of which is reproduced below.
"26. In cross examination D.W.1 Mohankumar s/o Kanhaiyyalal Sharma admitted that, his brother Parmeshwar Dayal when executed the tenancy agreement, it is mentioned that there is partnership firm. Since obtaining the suit shop block on rent, he is carried out the business as he is the partner. Since last 32-35 years he is conducting the business in the suit shop block. Now the business is carried out under proprietary concern. He is proprietor of this shop Modern Scientific Company since 32 years. He is in receipt of the rent receipt paid by him. Receipt is issued in the name of Modern Scientific Company. Rent receipt is not issued in the name of proprietary concern.............."
The lower appellate Court holds in para 16 of the judgment that the tenant was M/s. Modern Scientific Company, a partnership concern which was later on become proprietary concern of which defendant No.1 is the proprietor. In view of the fact that there is nothing on record to show that the partnership firm was registered and the finding recorded by the trial Court that the respondent is a proprietor and it is the business of proprietary concern, which is carried out, I do not find that the decree of trial Court was liable to be set aside on any such ground.
5] Shri Sharma, the learned counsel has relied
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upon the following decisions for the proposition that the suit in question was not maintainable.
[1] Yadav Ram vrs. Laman Singh Bish, reported in AIR 1978 Allahabad 123;
[2] Ramesh s/o Vitthalrao and Anr vrs. M/s. Dixit & Apte Engineers & Constructions & ors, reported in 2000 (3) ALL MR 698 [3] Ashish Rajendra Malara vrs. Narayan Sonu Wani & ors, reported in 2015 (5) ALL MR 596 [4] Jamsihid Ahamad Khan s/o Majidkhan vrs.
Additional Collector, Amravati, reported in 2010 (3) Mh.L.J. 839 [5] Narendra Gulabrao Zade vrs. Shiocharan Ghasiram Gupta since deceased through L.Rs Smt. Radhabai Shivcharan Gupta and another, reported in 2011 (1) Mh.L.J. 839.
Shri Sharma is unable to point out what is the ratio of these judgments and how it is applicable to the facts of the present case. He submits that only for the proposition that the partnership is a legal entity, the judgments are cited. The judgment cited by him, delivered by the Allahabad High Court runs contrary to this view. It is not possible to digest that Mr. Sharma does not understood the ratio of the judgments and whether the same can be applied in the facts of this case. It is, therefore, not understood as to what purpose is achieved ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 01:18:25 ::: 6 wp2360.15.odt by citing such judgments except for vesting the time of the Court.
6] It is also urged by Shri Sharma that one shop block of the front portion was occupied by Mac Million Publishers and this fact was not disclosed by the petitioners/ plaintiffs in the plaint. Shri Sharma could not point out the stand taken in the written statement that Mac Million Publishers was the tenant in respect of shop block on the front portion of the building on the ground floor. On the contrary, the evidence on record and findings recorded by the Courts below suggest that Mac Million Publishers was occupying rear portion of the shop block, which is now vacant and proposed to be occupied by the plaintiffs for their residence. There is no suppression by the plaintiffs in this regard.
7] On the question of the plaintiffs already having a way to approach the backside is also not in dispute, as the plaintiffs were using this way to approach the stair case for climbing the second floor also. This Court has already taken a view in the decision in Writ Petition No. 2504 of 2015 that ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 01:18:25 ::: 7 wp2360.15.odt the landladies have established the bonafide need and the lower appellate Court has committed an error in holding that it was mere a desire of landladies. In view of this, the findings recorded by the lower appellate Court in the present case also need to be set aside and the decree passed by the trial Court need to be restored.
8] In the result, the writ petition is allowed. The judgment and order dated 15.01.2015 passed by the lower appellate Court in Regular Civil Appeal No. 455 of 2013 is hereby quashed and set aside. The decree passed by the trial Court on 15.11.2013 in Regular Civil Suit No. 376 of 2009 is hereby restored. The respondents shall pay a cost of Rs.25,000/- to the petitioners. If the execution is filed, the executing Court is to see that the decree is executed within a period of one month from the date of such filing.
Rule is made absolute in above terms.
JUDGE Rvjalit ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 01:18:25 :::