Gujarat High Court
Shah Ashokkumar Ramniklal vs Shah Hasmukhlal Shivlal on 9 June, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SA/123/1996 JUDGMENT DATED: 09/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 123 of 1996
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHAH ASHOKKUMAR RAMNIKLAL
Versus
SHAH HASMUKHLAL SHIVLAL & 2 other(s)
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Appearance:
MR MEHUL S SHAH(772) for the Appellant(s) No. 1
MR VH DESAI(298) for the Respondent(s) No. 1
MS TEJAL A VASHI(2704) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No. 3
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 09/06/2022
ORAL JUDGMENT
1. The appellant-original plaintiff has preferred this Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree passed by the District Court, Surendranagar, dated 19.06.1996 in Civil Page 1 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 Appeal No.21 of 1992, whereby, it was held that the plaintiff-appellant is tenant having exclusive tenancy rights pertaining to suit shop and rest of the prayer for permanent injunction came to be rejected by the Appellate Court, the plaintiff-appellant has preferred the present Second Appeal.
2. The appellant is the plaintiff and the respondents are the defendants before the Trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them i.e. of the plaintiff and the defendants.
3. The appellant - original plaintiff had instituted a Regular Civil Suit No.287 of 1985 against the respondents-original defendants herein, inter alia, praying for declaration and for permanent injunction in respect of the shop situated near Gate Station, Surendranagar. It was the case of the plaintiff that he was a tenant of the suit shop and subsequently he entered into partnership firm with defendant Nos.1 and 2 and one Shantilal Maganlal, whereby, the defendants were permitted to use the suit shop as a 'licensee/permissive user' to carry on the business of selling clothes in the suit shop and in respect thereof, a Deed of Partnership was entered into between them on 20.08.1977. The said partnership between the parties was the "Partnership at Will", and, the firm was an Page 2 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 unregistered one. Thereafter, one of the partners of the firm, namely Shantilal Maganlal expired and as a result thereof administrator of the family of the late Shantilal Maganlal i.e. the defendant No.3 was inducted in the business of the partnership as a partner and consequently the firm continued with its business by constituting a new partnership firm by a fresh deed of partnership which was an unregistered one and the partnership was the "Partnership at Will".
3.1 According to the plaintiff, on 16.04.1985, the plaintiff had sent a notice to the defendants herein in terms of Section 43 of the Partnership Act, 1932, dissolving the partnership between the parties and pursuant to the said notice, the partnership between the parties stood dissolved. It is the case of the plaintiff that by virtue of dissolution of the partnership, the permission/ licence, granted by the plaintiff to the defendants to use the suit shop stood revoked and therefore, the defendants were bound to hand over the possession of the suit shop to the plaintiff who is the original tenant of the suit shop, in terms of the provisions of Transfer of Property Act, 1882 and the Indian Easements Act, 1882, which entitle the landlord to recover the possession of the immovable property upon termination/revocation of the permission to use such immovable property. Upon these facts, the plaintiff had instituted the suit seeking permanent injunction against the defendants, restraining them from Page 3 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 entering into the suit shop along with declaration that the plaintiff is a tenant of the suit shop.
4. The defendants have resisted the suit by filing written statements before the Trial Court vide Exh.18 and accepted that the plaintiff was the original tenant of the suit shop. They have contended that the plaintiff is residing in Bombay since many years and after formation of the Partnership, the possession of the shop has been handed over to the defendant No.1 in the year 1977 as a tenant and the possession of the defendant No.1 is as a tenant. The defendants have, inter alia, denied the allegations of the plaintiff and his right to have declaration and injunction as prayed for. They have also contended that the plaintiff is not in need of the suit property and he can have his business from the shop which is in possession of his brother and is adjoining to the suit shop. It is also contended that, as the plaintiff is not entitled for the possession of the suit shop under the Rent Act, he has filed this suit for declaration and injunction only with an intention to snatch away the possession of the shop from the defendants. They have prayed to dismiss the suit.
5. On the basis of the pleadings of the parties, various issues have been raised by the Trial Court at Exh.58 and all the issues, except one, declaring that the plaintiff is the original tenant of the suit shop, came to be answered Page 4 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 in negative by the Trial Court and has ultimately dismissed the suit of the plaintiff on the grounds that partnership firm was unregistered and no accounts have been settled between the partners and therefore, partnership firm cannot be said to be dissolved.
6. This judgment and decree of the Trial Court came to be challenged by the plaintiff before the First Appellate Court by way of filing Civil Appeal No.21 of 1992, which came to be partly allowed. In the course of the judgment, the First Appellate Court has framed the following points of determination:
1. Whether the appellant proves that he is tenant of the suit premises?
2. Whether the appellant proves that he is entitled for permanent injunction, as prayed for?
3. Whether the appellant proves that judgment and decree passed by the learned Civil Judge, J.D., in R.C.S No.287/85 requires to be set aside, whether it requires any modification?
4. What order and decree?
6.1 On the basis of the submissions and the material placed on record, the First Appellate Court has ultimately answered Point No.1 in affirmative, Point No.3 partly in affirmative, whereas, Point No.2 in negative and has Page 5 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 ultimately declined to grant any relief of permanent injunction against the defendants. Both these judgments have been challenged by the plaintiff by way of filing this Second Appeal.
7. At the time of admission of this Second Appeal the following substantial question of law has been raised:
Question- Whether the plaintiff/appellant, who is found to be exclusive tenant by the lower Appellate Court, is entitled to get a decree for injunction against the respondents?
8. I have heard learned advocate Mr. Samee Uraizee for Mr. Mehul S. Shah, learned advocate for the plaintiff and learned advocate Ms. Tejal A. Vashi for Mr. V.H. Desai, learned advocate for the defendant No.1 at length.
Perused the written submissions made by both the sides and the decisions cited at Bar. Though served, none has remained present for the rest of the defendants.
9. My findings on the question of law framed as above, for the reasons given below, is as under:
In negative;
:REASONS:
10. It has been submitted on behalf of the plaintiff that when the First Appellate Court, upon considering the evidence and material placed on record, has come to the Page 6 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 conclusion that the plaintiff is having exclusive tenancy right of the suit shop, then consequential relief of permanent injunction under Section 34 of the Specific Relief Act, 1963, ought to have been granted in favour of the plaintiff. It is submitted that in absence of such ancillary relief of permanent injunction, the relief of declaration becomes meaningless and it would not be legally permissible for the plaintiff to either claim the possession of the suit shop or to restrain the defendants from entering into the suit shop.
10.1 Regarding applicability of the provisions of the Partnership Act, in the facts of the present case, it has been submitted that as it was a "Partnership at Will" it will be governed by Section 43 of the Partnership Act, 1932 and such partnership can be dissolved merely by issuing notice and on the date of notice, it would be deemed that the partnership has been dissolved. It has been submitted that in the present case, on issuance of the notice at Exh.64 by the plaintiff to the defendants, the partnership firm has already been dissolved and therefore, the defendants who were in possession of the suit shop as a licensee had no right or interest to enter into the suit shop and disturb the possession of the plaintiff.
10.2 Regarding applicability of the Section 69 of the Partnership Act, it has been contended that, since Page 7 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 unregistered partnership firm has already been dissolved by issuance of notice there is no prior condition applicable for institution of the suit for rendition of accounts and dissolution under Section 69 of the Partnership Act. It is contended that after the dissolution of the "Partnership at Will", the suit essentially is pursued by tenant against licensee and not a partner against other partner. It is submitted on behalf of the plaintiff that since the defendant No.1 was licensee, who has been inducted by the plaintiff on account of partnership firm and partnership firm being dissolved, the defendant No.1 has no authority to remain in possession of the shop and therefore, suit for declaration and injunction was maintainable and when both the Courts below have concurrently held that the plaintiff is having tenancy right in the suit shop, the permanent injunction restraining the defendants from entering into the suit shop ought to have been granted by both the Courts below.
10.3 It is also submitted by the learned advocate for the plaintiff that in view of the provisions of Section 52 and 62(f) of the Easements Act, 1882, when the partnership firm was dissolved there would be an automatic revocation of licence in favour of the defendant No.1 and therefore, the licensee i.e. the defendants cannot retain the possession of the suit shop which is an immovable property. It is also contended that in view of these facts and legal proposition both the Courts below have Page 8 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 committed serious errors of facts and law in not granting relief of permanent injunction in favour of the plaintiff and against the defendants. It is prayed to allow the present appeal and to pass the decree in favour of the plaintiff restraining the defendants from entering into the suit shop. The learned advocate for the plaintiff has relied upon the following decisions:
I. Banarasi Das Vs. Kanshi Ram reported in AIR 1963 SC 1165.
II. Bakarali Fatehali Vs. Mohammedkasam Haji Gulambhai reported in 1996(1) GLR 96.
III. Haldiram Bhujiawala Vs. Anand Kumar, Deepak Kumar reported in 2000(3) SCC 250.
IV. Raptakosh Brett And Company Limited Vs. Ganesh Property reported in 1998 (7) SCC 184.
V. Patel Ramanbhai Mathurbhai Vs. Govindbhai Chhotabhai Patel reported in 2020 (1) GLH 261.
VI. Nazir Mohamed Vs. J. Kamala reported in AIR 2020 SC 4321.
11. Per contra, learned advocate Ms. Tejal A. Vashi for Mr. V.H.Desai, learned advocate for the defendant No.1 Page 9 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 in her written submission contended that there is a concurrent finding of facts by both the Courts below that the plaintiff is not entitled for permanent injunction and these finding of facts, being concurrent finding of facts, as a Second Appellate Court, this Court may not disturb the said finding of facts and this Court has to accept the same. It is also contended that both the Courts below have rightly held against the plaintiff that the partnership firm between the parties was unregistered and therefore, it would be governed by provisions of Section 69 of the Indian Partnership Act and therefore, suit itself is not maintainable against the defendants. It is also contended that even the declaration in favour of the plaintiff regarding his tenancy right ought not to have been passed. It is also contended that both the Courts have concurrently found that the defendants side is in possession of the property and therefore, has rightly rejected the prayer of permanent injunction. She has submitted that the citations relied upon by the other side are not applicable to the facts of the present case. It is prayed by the learned advocate for the defendant No.1 to dismiss the appeal. Learned advocate has relied upon the following decisions:
I. Laljibhai Ramjibhai Hamirani Vs. Lavjibhai Haribhai Mandanka and Ors reported in 2009 (2) GLH 11. II. Thimmaiah Vs. Ningamma reported in Page 10 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 2000 (7) SCC 409. III. A. Raghavamma Vs. A. Chenchamma reported in AIR 1964 SC 136.
12. In rejoinder of learned advocate Mr. Samee Uraizee for Mr. Mehul S. Shah, learned advocate for the plaintiff- appellant has submitted that the citations relied upon by the other side are not applicable to the facts of the present case. He has also submitted that the defendants side have not filed any cross objection or cross appeal against the finding of facts that the plaintiff has a tenancy right in the suit property and therefore, the submissions made by the other side may not be accepted at this stage. He has prayed to allow the appeal.
13. At this stage, it is worthwhile to refer to the decision of the Hon'ble Apex Court in the case of Nazir Mohamed Vs. J. Kamala (supra), wherein, principle relating to Section 100 of the Civil Procedure Code has been summarized in Para Nos. 34, 35, 36 and 37 which are as under:
"34. Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami, AIR 1997 SC 1047.
35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The Page 11 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.
36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v.
Ramalingam, AIR 1963 SC 302. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.
37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from Page 12 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 binding precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously;
or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
14. Regarding Section 69 of the Indian Partnership Act, it is worthwhile to refer the decision of this Court in the case of Laljibhai Ramjibhai Hamirani Vs. Lavjibhai Haribhai Mandanka and Ors (supra), wherein, this Court has observed as under:
"69. Effect of non-registration : -
(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person Page 13 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceedings to enforce a right arising from a contract, but shall not affect-
(a) The enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Presidency-town Insolvency Act, 1909 (3 of 1909) or the Provisional Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner.
(4) This section shall not apply:-
(a) to firms or to partners in firms which have no place of business in [the territories to which this Act extends], or whose places of business in [the said territories], are situated in areas to which, by notification Page 14 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 under [section 56], this Chapter does not apply, or
(b) to any suit or claim of set-off not exceeding one hundred rupees in value which in the Presidency-towns is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provisional Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.
7. Considering Section 69 of the Act, no suit to enforce a right arising from a contract or conferred by the said Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of firms as a partner in the firm. Therefore, when the plaintiff is asserting his right as partner and suit is filed for enforcement of his right as partner; suit is filed for accounts of partnership firm, unless it is registered, no suit by person / partner is maintainable. However, there is exception to section 69(1). If a suit is filed by a person / partner for the dissolution of a firm or for accounts of a Page 15 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 dissolved firm, or any right or power to realise the property of a dissolved firm, in that case, bar under section 69(1) of the Act would not be applicable."
15. In view of the decisions of this Court relating to Section 69 of the Partnership Act, the bar under Section 69(1) of the Partnership Act would not be applicable when suit is filed by person/partner for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm. Now, it is pertinent to note that though the appellant-plaintiff has raised the substantial questions relating to the provisions of the Partnership Act, while admitting the appeal, these questions have not been framed as a substantial question of law but the question of law framed is only in respect of the right of the plaintiff as to relief of permanent injunction when he was held to be a tenant in the suit. Thus, in view of the framing of the question of law at the time of the admission, the authorities relied upon by both the sides, so far as, relates to the provisions of the Partnership Act need not be dealt with.
16. On perusal of the material placed on record, coupled with the judgments of both the Courts below and the submissions made by both the sides, it is crystal clear that there is no dispute regarding the fact that the plaintiff herein is the original tenant of the suit shop. This fact has been admitted by the defendants in their written Page 16 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 statements before the Trial Court. Thus, admission on the part of the defendants regarding plaintiff being the original tenant of the suit property, there is no further need of any discussion in this respect. The Trial Court as well as the Appellate Court, therefore have properly observed in their decisions that the plaintiff is a tenant of the suit shop.
17. Now, the base for the permanent injunction restraining the defendants from entering into the suit shop is that they were given possession on the basis of the partnership between the parties and the said partnership came to be dissolved by issuance of notice by the plaintiff, as the partnership was a "Partnership at Will". Now, admittedly, the defendants' side are in possession of the suit shop since long. It is not the case of the plaintiff that the defendants are the trespassers in the suit shop. The case of the plaintiff is that they are permissive user or licensee in the suit shop. According to the plaintiff, after the dissolution of the partnership between the parties, the permissive use/licensee in favour of the defendants would automatically come to an end. This belief of the plaintiff is devoid of merits. When the possession of the defendant No.1 is even deemed to be a permissive one or a licensee of the plaintiff, even in that case, for revocation of such licensee or permissive user, necessary notice under Section 106 of the Transfer of Property Act needs to be issued. Now, admittedly no such notice of eviction under Section 106 of the Transfer of Page 17 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 Property Act has been issued against the defendant. Moreover, even if the provisions of the Easements Act as submitted by the plaintiff-appellant is accepted, even in that case, on dissolution of the partnership firm the right of the licensee would not come to an end automatically. Necessary legal proceedings need to be initiated for recovery of the possession. The plaintiff could have sought for a relief for possession from the defendants on the ground that permissive use/licensee in favour of the defendants due to dissolution of the partnership firm has come to an end. However, without seeking for relief of possession in the suit, the plaintiff has merely asked for permanent injunction preventing the defendants from entering into the suit shop. In absence of any prayer of possession on the basis of revocation of license or permissive use, the other side could not be in a position to agitate the same, factually as well as legally and right available to them under the legal provisions of safeguarding the rights and licensee or permissive users could not be agitated. Therefore, considering the factum that the plaintiff side has not sought for relief of possession of the suit property, though he is declared as an original tenant in the suit shop, no permanent injunction can be granted in his favour for snatching away the possession of the defendants in the guise of permanent injunction.
18. Now, considering the reasoning of both the lower Courts below coupled with the material placed on record, Page 18 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022 C/SA/123/1996 JUDGMENT DATED: 09/06/2022 it clearly transpires that both the Courts below have not committed any error of facts and law in rejecting the prayer of permanent injunction in favour of the plaintiff and against the defendants. Impugned judgment and decrees of both the Courts below in this respect are sustainable in the eyes of law. Therefore, under the fact and circumstances of the case, I have decided the questions of law framed hereinabove as in negative.
19. In view of the above discussion, since this second appeal is liable to be dismissed, I pass the following final order in the interest of justice:-
: ORDER :
(1) The present Second Appeal No.123/1996 stands dismissed.
(2) Considering the facts and circumstance of the case, the parties are directed to bear their respective costs of the present appeal.
(3) Decree to be drawn accordingly in the present appeal.
(4) Along with the copy of this judgment and decree, record and proceedings to be sent back to the Trial Court.
Sd/-
(DR. A. P. THAKER, J) SLOCK BAROT Page 19 of 19 Downloaded on : Fri Jun 10 21:02:11 IST 2022