Miss Zarina D/O Late Abdul Karim ... vs Mohankumar S/O Kanhaiyyalal ...
2017 Latest Caselaw 1042 Bom

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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
 -------------------------------------------------------------------------------------------
 Shri Masood Shareef, counsel for Petitioners.
 Shri R.M.Sharma, counsel for Respondent no. 1 
 -------------------------------------------------------------------------------------------
                          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

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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

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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

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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

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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