Bombay High Court
M/S Dr. C.P. Bhargava, Nagpur Thr. ... vs M/S Chandak And Sons A H.U.F. Concern, ... on 2 May, 2018
Equivalent citations: AIRONLINE 2018 BOM 58
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5304 OF 2017
Petitioner : M/s. Dr. C.P. Bhargava,
A Partnership Firm, through its Partner,
Shri Arunkumar Chandraprakash Bhargava,
Aged about 70 years, Occupation : Business,
R/o Chandak Kothi, Subhash Road, Nagpur.
-- Versus --
Respondents : M/s Chandak & Sons - a H.U.F. Concern,
through its Karta, Shri Govardhandas s/o\
Narsingdasji Chandak, Since deceased -
through his Legal Heirs :
1] Rajkumar s/o Govardhandasji Chandak,
Aged Major, Occupation - Business.
2] Meenadevi wd/o Govardhandasji Chandak,
Aged Major, Occupation - Household.
3] Pankuwar Rati,
Aged Major, Occupation - Business.
4] Premkuwar Kothari,
Aged Major, Occupation - Business.
5] Jyoti Dammai,
Aged Major, Occupation - Household.
All resident of Chandak Kothi, Subhash Road,
Nagpur.
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Shri S.D. Khati, Advocate for the Petitioner.
Shri A. Shelat, Advocate for the Respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : A.S. CHANDURKAR, J.
DATE : 2nd MAY, 2018.
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ORAL JUDGMENT :-
The petitioner, a partnership firm, is aggrieved by the judgment dated 28/04/2017 passed in R.C.A. No.588/2005 whereby the suit filed by the respondents herein has been decreed and the petitioner firm has been directed to handover vacant possession of the tenanted premises to the respondents.
02] Facts which are relevant for adjudicating the writ petition are that the petitioner through its partner claims that the partnership firm is duly registered in the name "M/s. Dr. C.P. Bhargava". The firm was occupying about five shops in the building owned by the respondents and paying rent of Rs.3,000/- per month. The predecessors of the respondents initiated proceedings under Clause 13(3)(v) and (vi) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949. The Rent Controller on 27/03/1996 granted permission to determine the tenancy of the partnership firm. This order was confirmed by the appellate authority by its order dated 13/05/1999. Based on the permission granted by the Rent Controller, the respondents on 06/06/1996 issued a notice determining the tenancy of the partnership firm. The respondents thereafter filed Civil Suit ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 01:14:53 ::: 3 wp.5304.17.jud No.304/1996 for possession and recovery of rent. The trial Court by its judgment dated 05/08/1998 partly decreed the suit. It granted relief of recovery of arrears of rent but rejected the prayer for delivery of possession. Being aggrieved, the respondents filed an appeal challenging that adjudication. As the appeal was delayed, it was accompanied by an application for condonation of delay. The appellate Court by order dated 18/10/2007 condoned the delay subject to payment of costs of Rs.6,000/-. This order was challenged by the petitioner in Writ Petition No.234/2008. The said writ petition was dismissed on 28/03/2008 and Letters Patent Appeal No.260/2008 challenging that adjudication was dismissed on 31/07/2014. The appellate Court thereafter took up the appeal for hearing and by its judgment dated 28/04/2017 allowed that appeal and decreed the suit for possession. Being aggrieved, the partnership firm has challenged said judgment. 03] Shri Khati, learned Counsel for the petitioner submitted that the appellate Court committed an error for decreeing the suit for possession. He submitted that the respondents while seeking permission to issue quit notice had initiated proceedings against the firm through its partner Shri V.R. Bhargava. Referring to the Register of Firms, it was submitted that there was no partner by ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 01:14:53 ::: 4 wp.5304.17.jud the name V.R. Bhargava, but it was V.K. Bhargava. As the permission to issue quit notice was obtained in the name of the wrong person, no relief could be granted to the respondents. It was then submitted after Civil Suit No.304/1996 was dismissed, fresh proceedings were initiated by filing R.C.S. No.464/1999. This suit was filed against the firm through Shri V.K. Bhargava, but it was based on the permission granted earlier by the Rent Controller. That suit was dismissed on 22/11/2004 and that adjudication attained finality. It was, therefore, not permissible for the respondents to again challenge the adjudication in Civil Suit No.304/1996. The findings recorded in R.C.S. No.464/1999 which became final operated as res judicata and, therefore, no relief could have been granted to the respondents. In that regard, the learned Counsel placed reliance on the decision in Ram Prakash vs. Smt. Charan Kaur and another (AIR 1997 SC 3760) and M/s. Chhotelal Pyarelal and others vs. Shikharchand (AIR 1989 SC 1570). It was thus submitted that no decree for eviction could have been passed against the firm.
04] Shri Shelat, learned Counsel for the respondents supported the impugned judgment. According to him, the order ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 01:14:53 ::: 5 wp.5304.17.jud granting permission to issue quit notice had become final. The trial Court while deciding Civil Suit No.304/1996 erroneously held that the rent payable was Rs.600/- which finding was incorrect. The Civil Court had no jurisdiction to enter into the adjudication made by the Rent Controller. According to him, the proceedings in R.C.S. No.464/1999 and R.C.A. No.70/2005 were initiated on wrong advice. This Court while maintaining the order passed by the Appellate Court condoning delay in filing appeal against the judgment in Civil Suit No.304/1996 had accepted that said proceedings were filed on the basis of wrong advice. The adjudication by the Appellate Court while passing the impugned order was therefore justified. There was no question of the principles of res judicata being applicable as the order condoning delay had attained the finality. It was, therefore, not necessary to look into those findings and the petitioner cannot be permitted to take advantage of the same. It was then submitted that the partners of the firm had duly contested the proceedings and it was not open for them to seek to defeat the rights of the respondents on technical grounds. The learned Counsel placed reliance on the decision in Meghji Kanji Saha vs. Bhaskarrao Ganpatrao Walokar and another (1986 Mh.L.J. 732), Taher Ali s/o Abdul Hussain & ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 01:14:53 ::: 6 wp.5304.17.jud others vs. Shri Shivaji Education Society, Amravati (1996(1) Mh.L.J.
253), R.P. Ghosh vs. Smt. Pramilabai Ravindra Puri and others (AIR 1977 BOMBAY 181) and Pralhad Lalchand Chavan vs. Iqbal Hussain Inayat Hussain Badri (AIR 1996 SC 2547).
05] I have heard the learned Counsel for the parties at length and with their assistance, I have gone through the documents placed on record. It is not in dispute that the proceedings before the Rent Controller were initiated by the respondents for seeking permission to issue quit notice to the petitioner firm. Those proceedings were initiated against the firm through its partner Shri V.R. Bhargava. The Rent Controller granted permission by order dated 27/03/1996. The firm through its partner Shri V.K. Bhargava challenged that order but said challenge failed before the appellate authority. It is to be noted that the ground with regard to initiation of proceedings by mis- describing the partner does not appear to have been raised in that appeal. Be that as it may, notice to the firm was issued on 06/06/1996 and on that basis Civil Suit No.304/1996 came to be filed. In this suit, the firm was arrayed as the defendant through its parter Shri V.K. Bhargava. As noted above, this suit was partly decreed granting relief of payment of arrears of rent. That adjudication was not challenged by the partnership firm but instead the plaintiff challenged that ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 01:14:53 ::: 7 wp.5304.17.jud adjudication insofar as relief of possession was refused. 06] The record indicates that after Civil Suit No.304/1996 was decided, a fresh notice dated 02/09/1999 was issued by the plaintiff to the partnership firm. Thereafter R.C.S. No.464/1999 came to be filed seeking recovery of arrears of rent and possession based on the earlier permission granted by the Rent Controller. This suit was dismissed on 22/11/2004 holding that it was barred by the principles of res judicata and R.C.A. No.70/2005 came to be dismissed in default on 05/03/2007. It is thereafter that the original plaintiff took steps to challange the judgment of the trial Court in Civil Suit No.304/1996. The order condoning delay by the Appellate Court was challenged before this Court and ultimately before the Hon'ble Supreme Court. However, that order condoning the delay attained finality. It is thereafter that the Appellate Court decided the appeal and passed a decree for possession. The Appellate Court held that initially the suit was based on notice dated 06/06/1996 while the subsequent suit was based on notice dated 27/05/1999 which was issued after the appeal field by the partnership firm challenging the order of the Rent Controller was dismissed. The Appellate Court, therefore, held that the ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 01:14:53 ::: 8 wp.5304.17.jud subsequent suit was dismissed as not maintainable and there being no adjudication on merits, there was no question of principles of res judicata applying.
07] Insofar as the decree of eviction is concerned, the Appellate Court has rightly found that the permission granted to the original plaintiff to issue a quit notice had attained finality. That notice was duly served and, therefore, the plaintiffs were entitled for a decree of eviction . There cannot be any dispute that in a suit filed after obtaining permission of the Rent Controller, the only aspect to be considered is with regard to the validity of the quit notice. Once an appropriate notice was issued to the tenants and the order granting permission to issue quit notice had attained finality, the decree for eviction ought to follow. The same has been done by the Appellate Court. The aspect of res judicata as sought to be urged by the learned Counsel for the petitioner by relying upon the decision in Ram Prakash (supra) cannot be accepted. As noted above, the R.C.S. No.464/1999 was held to be not maintainable in view of the earlier adjudication in Civil Suit No.304/1996. Presently, what is under consideration is the adjudication in Civil Suit No.304/1996 and not in R.C.S. ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 01:14:53 ::: 9 wp.5304.17.jud No.464/1999. Moreover, when the explanation of the original plaintiff that the subsequent proceedings in R.C.S. No.464/1999 and R.C.A. No.70/2005 were initiated on wrong advice has been accepted, there is no question of again coming back into those issues. The order condoning delay has attained finality up to the Hon'ble Supreme court.
08] As regards mis-description of the name of one of the partners, it is to be noted that the petitioner challenged the final order passed by the Rent Controller by preferring an appeal through its partner Shri V.K. Bhargava. Moreover, as held in Meghji Saha and R.P. Ghosi (supra), the said mis-description would not result in the original plaintiff being deprived of the relief of possession. The suit premises being the same and there being no dispute that the respondents were the owners thereof and that the firm was its tenant, the said factor cannot result in depriving the original plaintiffs of the relief of possession. 09] It is thus found that the Appellate Court has rightly held that the respondents were entitled for a decree for eviction. The proceedings initiated in the year 1993-94 on the ground of bona ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 01:14:53 ::: 10 wp.5304.17.jud fide need have ultimately been decided in favour of the original plaintiff. In absence of any jurisdictional error, there is no case made out to interfere in writ jurisdiction. The writ petition is, therefore, dismissed with no order as to costs. In the facts of the case, the petitioner is granted time of three months to vacate the suit premises.
JUDGE *sandesh ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 01:14:53 :::