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Abhi Prosad Sen and anr. Vs. Puspa Doshi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata High Court
Decided On
Case NumberSuit No. 476 of 1983
Judge
Reported inAIR1984Cal250
ActsCode of Civil Procedure (CPC) , 1908 - Section 11 - Order 40, Rule 1
AppellantAbhi Prosad Sen and anr.
RespondentPuspa Doshi and ors.
DispositionApplication allowed
Cases ReferredGulab Chand Chhotalal Parikh v. State of Gujarat
Excerpt:
- .....13b in the said premises. the tenancy of the said rooms stand in the name of the plaintiff in her firm boson and company and that the plaintiff has been regularly paying rent to the landlord for the said premises.39. the further case of pushpa doshi in the suit before the city civil court is that the landlord has been demanding that the plaintiff would double the rents for the said two rooms and pay further selami and as she did not agree to such wrongful demands the landlord refused to accept rent from her. it is alleged that thereafter she is depositing rent with the rent controller.40. it is her further case that the landlord has been conspiring to disturb her possession of the said rooms and has joined abhi prosad sen.41. this case appears to be completely different to the case.....
Judgment:
ORDER

Dipak Kumar Sen, J.

1. The case of Abhi Prosad Sen and Minati Sen, respectively the plaintiffs Nos. 1 and 2 in this suit, is that the plaintiff No. 1 became a tenant of a room numbered 12B in premises No. 44, Ezra Street, Calcutta where he started a business under the name and style of Boson and Company as the sole proprietor thereof. Sometime in 1963, the plaintiff No. 1, in his said business, was inducted as a tenant of another room in the said premises numbered 13B.

2. The plaintiff No. 1 was also a tenant in room No. 14B in the said premises since 1956 where he was carrying a separate business under the name and style of Universal Distributors. Sometime in 1968 the plaintiff No. 1 entered into a partnership with one Omprokash Gab rani in respect of the said business Universal Distributors. In 1969 the plaintiff No. 1 retired from the partnership and his wife, the plaintiff No. 2, along with one Sunil Choudhury became partners in the said firm.

3. Ramesh Doshi, the defendant No. 3, started financing the firm Universal Distributors from October 1978. A sum of about Rupees 3 lakhs was advanced by the defendant No. 3 to the said firm on the understanding that Subhas Doshi, the brother of defendant No. 3 would be admitted as a partner in the said firm.

4. Omprokash Gabrani and Sunil Choudhury ultimately refused to take in Subhas Doshi as a partner in the said firm and disputes and differences arose between the parties. In March 1979, Omprokash Gabrani and Sunil Choudhury also wrongfully excluded the plaintiff No. 2 from the business of the said firm.

5. The defendant No. 3, it is alleged, at that stage called upon the plaintiff No. 1 to furnish security for the money advanced by him to the said firm and in or about December 1978 proposed as follows:--

(a) A deed would be executed by the plaintiff No. 1 showing that the plaintiff No. 2 Puspa Doshi, the wife of the defendant No. 3, and Subhas Doshi were partners in the business, Boson and Company.

(b) It would also be shown in the said deed that the tenancy rights in the said rooms Nos. 12B and 13B belonged to Puspa Doshi.

(c) The said deed would not however he given effect to and would be cancelled on realisation of the amount invested by the defendant No. 3 in the firm Universal Distributors.

6. Relying on the representations made by the defendant No. 3 as aforesaid, the plaintiff No. 1 signed two deeds caused to be prepared by the defendant No. 3 on stamped papers as also several other documents in the letterhead of Universal Distributors. The defendant No. 3 at all material times assured the plaintiff No. 1 that the said documents would only constitute the security for due repayment of Rupees 3 lakhs.

7. In June 1979, the plaintiff No. 2 filed a suit in this Court for dissolution of Universal Distributors. During the pendency of the said suit Omprokash Gabrani and Sunil Choudhury offered to retire from the said firm against payment of Rs. 4,95,000/-on account of their shares. The defendant No. 3 thereupon offered to advance the said amount for paying off Omprokash Gabrani and Sunil Choudhury on the understanding that upon their retirement the defendant No. 1 would be taken as a partner in the said firm Universal Distributors and allotted l/3rd share.

8. The defendant No. 3 advanced money on the aforesaid basis, out of which Omprokash Gabrani and Sunil Choudhury were paid off. The suit for dissolution of the said partnership was settled.

9. On the 12th July 1979, the said firm Universal Distributors was reconstituted. The defendant No. 1, Subhas Doshi and the plaintiffs Nos. 1 and 2 became partners in the said firm. The plaintiffs Nos. 1 and 2 were allotted 15 per cent, share each in the reconstituted partnership, the balance shares were allotted to Subhas Doshi and the defendant No. 1.

10. The plaintiffs allege that the defendant No. 3 thereafter took personal charge of the finance of the reconstituted firm and obtained repayment of the amount advanced by him from the profits of the firm.

11. At the end of 1980, the defendant No. 3 it is alleged called upon the plaintiffs Nos. 1 and 2 to retire from the said firm and proposed that the defendant No. 3 would pay Rs. 25,000/- to the plaintiffs and that all amounts advanced by the defendant No. 3 including the said contribution of Rupees 4,95,000/- would be treated as adjusted, and that the plaintiffs would have no further liability in respect thereof. It was further proposed that after the retirement of the plaintiffs from the said firm the plaintiff No. 1 would be employed in the reconstituted firm at a remuneration of Rupees 1000/- per month.

12. The plaintiff No. 1 being in need of money for his proprietorship business of Boson and Company, the defendant No. 3 took advantage of the position and forced the plaintiff No. 1 to accept the said proposal in September 1980.

13. The defendant No. 3, it is alleged paid Rupees 12,500/- to the plaintiff No. 1 and Rupees 12,500/- to the plaintiff No. 2 in the name of Universal Distributors. The defendant No. 3 also caused a deed to be prepared and got the plaintiffs to sign the same and other documents executed under the letterhead of Universal Distributors. The plaintiffs were forced to sign the same without having any opportunity to go through the contents thereof.

14. It is alleged that the plaintiff No. 1 thereafter called upon the defendant No. 3 for return of the deeds signed in December 1978 in respect of the advances made by the defendant No. 3 to the business, Boson and Company. The defendant No. 3 it is alleged informed the plaintiff No. 1 that the said deeds and documents had been destroyed and also represented to the plaintiffs that the said documents could not be enforced.

15. It is alleged that the plaintiff No. 1 thereafter continued to carry on his business, Boson and Company in the said rooms Nos. 12B and 13B without any interference and has been paying rent for the said rooms regularly to the landlord. Such rent has been paid up to June 1983.

16. Subhas Doshi died on the 13th May 1981 leaving his widow Sita Doshi, the defendant No. 2 as his heiress and legal representative.

17. In April 1983 the defendant No. 3, it is alleged, wrongfully sought to interfere with the possession of the plaintiff No. 1 of the said rooms Nos. 12B and 13B. Such interference was resisted and on the 2nd April 1983 the defendant No. 3 instituted proceeding under Section 144 of the Code of Criminal Procedure which came to an end on the 2nd June 1983. Thereafter, the defendant No. 3 moved an application under Article 226 of the Constitution in this Court on the 10th May 1983 alleging police, inaction and obtained an ex parte interim order. On contest by the plaintiffs the said application was dismissed on the 21st June 1983 and the interim orders were vacated. The defendant No. 3 wrongfully sought to utilise the said deeds signed in 1978 in respect of the business of Boson and Company in the said writ proceedings.

18. The defendant No. 3 also instituted a suit in the City Civil Court, Calcutta in the name of the defendant No. 1 marked as Title Suit No. 923 of 1983. The said suit is pending and the plaintiff No. 1 has been contesting the same. The landlord of the said premises has also been impleaded in the said suit as a defendant. An ex parte ad interim order of injunction restraining the plaintiff No. 1 and the defendant No. 4 the landlord from interfering with the possession of the said rooms as on the 10th May 1983 has been obtained by the defendant No. 1 in the said suit.

19. On the 1st June 1983 the defendant No. 3 also initiated further proceedings under Section 156 of the Code of Criminal Procedure against the plaintiffs and the landlord. On allegations of dacoity and removal of documents and goods of the business, Universal Distributors made against the plaintiffs and the landlord, three members of the staff employed in Boson and Company were arrested from the rooms Nos. 12B and 13B on the 23rd June 1983 and the said rooms were sealed by the police.

20. On the 4th July 1983, the defendant No. 3 made an application in the said criminal proceeding for an order for delivery of the possession of the said rooms. The said application is pending.

21. The plaintiff No. 1 it is alleged has filed an application under Article 226 of the Constitution challenging the said criminal proceeding where a rule nisi has been issued and an interim order has been made on the 19th July, 1983. The said application is also pending.

22. The plaintiffs contend, inter alia, as follows:--

(a) The defendants Nos. 1, 2 and 3 relying on the deeds and documents executed in 1978 are threatening to interfere with the business of Boson and Company which is being carried on in the said rooms Nos. 12B and 13B.

(b) The said documents were executed only by way of security on the representations made by the defendant No. 3 and in the circumstances as mentioned herein-above.

(c) The defendant No. 3 has recovered the amounts invested by him and has taken over the entire business of Universal Distributors.

(d) The defendants are not entitled to rely upon or enforce the said deeds and documents executed in 1978 in respect of the business, Boson and Company and the same have become void.

(e) The said deeds and documents purporting to record constitution of a partnership in respect of the business, Boson and Company, the dissolution thereof and the retirement of the plaintiff No. 1 were never intended to be nor were executed by the latter.

(f) The purported recording in the said deeds and documents that the tenancy rights in respect of the said rooms Nos. 12B and 13B had been transferred are not registered and therefore not admissible in evidence.

(g) The defendant No. 3 by relying on the said deeds and documents executed in 1983 has committed fraud upon the plaintiffs.

(h) In a document executed in the letterhead of Universal Distributors it has been wrongfully recorded that a sum of Rupees 55,000/- has been paid by the defendant No. 1 to the plaintiff No. 2 in full and final settlement of her entire dues including the goodwill of Boson and Company and Universal Distributors.

The present suit was filed on the 2nd August 1983 claiming the following reliefs;--

(a) A decree directing the defendants Nos. 1, 2 and 3 to deliver up the said documents executed in 1978 so that the same may be adjudged void and be cancelled.

(b) A declaration that the said deeds or documents are not valid or binding on the plaintiffs.

(c) A perpetual injunction restraining the defendants Nos. 1, 2 and 3 from relying upon or giving any effect to or making any claim on the basis of any of the said deeds and documents.

(d) A declaration that the plaintiff No I is the sole proprietor of the business, Boson and Company and is the monthly tenant of the said rooms Nos. 12B and 13B.

(e) An injunction restraining the defendants Nos. 1. 2 and 3 from claiming any right, title or interest in respect of the said business of Boson and Company and the tenancy rights of the plaintiff No. I in respect of the said rooms Nos. 12B and 13B or from interfering with the business of Boson and Company and enjoyment of the said tenancy right by the plaintiff No. 1.

23. The present application has been made on a notice dated the 21st September 1983 for the following interim reliefs:--

(a) A receiver over the said rooms Nos. 12B and 13B with direction to put his seal over the entrances of the said rooms and to keep the said rooms in his custody until further orders :

(b) The receiver be directed to make over the said rooms Nos. 12B and 13B to the plaintiffs;

(c) An injunction restraining the defendants Nos. 1 to 3 from claiming or inter-fering with the tenancy rights of the plaintiff No. 1 over the said rooms Nos. 12B and 13B or from claiming or taking possession thereof or from interfering with the plaintiff's right to carry on business from the said rooms;

24. The case of the defendants Nos. 1, 2 and 3 is made out in a affidavit affirmed by the defendant No. 3 on the 23rd February 1984 which has been filed in opposition to the petition. It is admitted in this affidavit that the plaintiff No. 1 had been carrying on business under the name and style of Boson and Company as the sole proprietor thereof and that the said rooms Nos. 12B and 13B had been taken on rent by the plaintiff No. 1 in the name of his business Boson and Company.

25. The plaintiff No. 1, it is alleged, did not have necessary finance to carry on the said business,, Boson and Company and in December 1978 approached the defendant No. 3 and his brother Suhhas Doshi since deceased for financial assistance. A partnership was constituted with the plaintiff No. 1, the said Subhas Doshi and the defendant No. 1, the wife of the defendant No. 3 by an Indenture dated the 31st December 1978. It is alleged that the said partnership took over the entire business of Boson and Company with all its assets including the tenancy rights over the said rooms Nos. 12B and 13B.

26. It is alleged that on and from January 1979 and till March 1982 Subhas Doshi and the defendant No. I had been paying rent for the said rooms by account payee cheques which were received and encashed by the landlord. Thereafter, it is alleged, the landlord wrongfully refused to grant receipts and thereafter rents have been deposited with the Rent Controller.

27. It is alleged further that by a deed of dissolution dated the 31st December 1979 the partnership, Boson and Company was dissolved when the plaintiff No. 1 retired from the partnership. It was recorded in the said deed that the tenancy of the partnership in the said rooms would exclusively belong to Subhas Doshi and the defendant No. 1 and that the plaintiff No. 1 would have no right, title or claim over the same.

28. Thereafter, the other firm Universal Distributors was also dissolved by a deed dated the 31st December 1980. It was recorded in the said deed that the plaintiffs Nos. 1 and 2 had retired from the said firm and that Subhas Doshi and the defendant No. I were continuing as the partners thereof. It was also recorded that the rights of tenancy in respect of the said rooms Nos. 12B and 13B taken on rent in the name Boson and Company would remain and belong to Subhas Doshi and the defendant No. 1 jointly and exclusively and that the plaintiffs Nos. 1 and 2 would have no right whatsoever over the said tenancies.

29. It is alleged that since the 1st January 1981 Subhas Doshi and the defendant No. 1 carried on business under the name and style of Universal Distributors in the said rooms Nos. 12B and 13B as also the room No. 14B in co-partnership.

30. Subhas Doshi died on the 13th May 1981. On the 21st June 1981 it is alleged that a new partnership was formed between the defendant No. 1 and Shila Doshi, the widow of Subhas Doshi and the defendant No. 2 and was duly registered. The new firm commenced business in the said three rooms since the 22nd June 1981.

31. It is alleged that on the 30th and 31st March 1983 the plaintiff No. 1 with the help of anti-social elements and criminal associates attempted to take forcible possession of the said rooms Nos. 12B and 13B. Being resisted by the employees of the new firm the attempt failed. Complaints were recorded in writing with the Police Authorities.

32. On the 2nd April 1983 a petition was presented and proceedings were initiated under Section 144(2) of the Code of Criminal Procedure and a prohibitory order was passed on the 4th May 1983. In spite thereof the plaintiff No. 1 and his associates further attempted to take forcible possession of the said rooms.

33. On the 6th May 1983 the defendant No. 1 filed the said Title Suit No. 923 of 1983 in the City Civil Court, Calcutta and in an application made in the said suit an interim order was passed on the 25th August 1983 restraining the landlord and the plaintiff No. 1 from interfering with the possession of the defendant No. 1 in the said premises. An appeal was preferred from the said order which was dismissed and a special leave petition from the said order of this Court was summarily rejected by the Supreme Court.

34. In the meantime, criminal proceedings were initiated under Section 156(3) of the Criminal Procedure Code and under orders passed in the said proceeding, the plaintiff No. 1 and three of his associates were arrested and subsequently released on bail.

35. The Police Authorities sealed the said rooms Nos. 12B and 13B and submitted a report to the Magistrate. By an order dated the 11th January 1984 the Magistrate directed the possession of the shop rooms to be delivered to the complainants. A proceeding in criminal revision against the said order of the Magistrate is pending before this Court.

36. It is contended that the defendants Nos. 1 and 2 acquired right, title and interest in the said rooms under a contract with the plaintiffs and that the latter are not entitled to assert or make any claim in respect thereof. It is alleged that this suit has been filed and the present application has been made therein in abuse of the process of law and are vexatious. It is further contended that in view of the orders passed by the City Civil Court, this Court and the Supreme Court in the said Title Suit No. 923 of 1983 and the appeal therefrom the present proceedings are barred by the principles of res judicata or principles analogous thereto. It is alleged that the plaintiffs suppressed facts and misrepresented the correct position in order to obtain an ad interim order from this Court.

37. At the hearing, learned Counsel for the parties reiterated the contentions of the parties as made out in their respective pleadings. In support, the following decisions were cited at the Bar:--

(a) Old Products Pvt. Ltd. v. Ram Antar Jalan, reported in (1908) 72 Cal WN 805. This decision of a Division Bench of this Court was cited for the following observations':--

'If an interlocutory order is made with-out prejudice to the rights and contentions of the parties and it later appears that another interlocutory order is to be made to meet the exigency of the situation, the previous interlocutory order should not stand in the way.' (b) Satyadhyan Ghosal v. Sm. Deorajin Debi, reported in : [1960]3SCR590 , In this case the Supreme Court laid down that the principle of res judicata applied as between two stages in the same litigation to the extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceeding.

(c) Arjun Singh v. Mohindra Kumar, reported in : [1964]5SCR946 . This decision was cited for the following observations of the Supreme Court (Para 13):--

'Interlocutory orders are of various kinds; some like orders of stay injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of coarse, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent application for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court.' (d) Gulam Abbas v. State of U. P., reported in : 1981CriLJ1835 . In this case the Supreme Court reiterated the principles laid down by itself in Gulab Chand Chhotalal Parikh v. State of Gujarat, reported in : [1965]2SCR547 . The observations quoted from the earlier judgment are as follows (Para 60):-- '...............the provisions of Section II, Civil Procedure Code are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit.'

38. A copy of the plaint filed in Title Suit No. 923 of 1983 was produced at the hearing. Pushpa Doshi, the defendant No. 1 in this suit is the plaintiff in the said suit The case of Pushpa Doshi in the said suit before the City Civil Court is that she is carrying on business under the name and style of Boson and Company as proprietor thereof and that she alone is the monthly tenant in respect of the said shop rooms Nos. J2B and 13B in the said premises. The tenancy of the said rooms stand in the name of the plaintiff in her firm Boson and Company and that the plaintiff has been regularly paying rent to the landlord for the said premises.

39. The further case of Pushpa Doshi in the suit before the City Civil Court is that the landlord has been demanding that the plaintiff would double the rents for the said two rooms and pay further selami and as she did not agree to such wrongful demands the landlord refused to accept rent from her. It is alleged that thereafter she is depositing rent with the Rent Controller.

40. It is her further case that the landlord has been conspiring to disturb her possession of the said rooms and has joined Abhi Prosad Sen.

41. This case appears to be completely different to the case which has been made oat by the defendants Nos. 1, 2 and 3 in this suit Here, the case of the defendants is that the original tenancy in the said rooms belonged to the plaintiff No. 1 in his business, Boson and Company. Under the deed of partnership dated the 31st December 1978 a partnership consisting of file plaintiff No. I, the said Subhas Doshi and the defendant No. 1 took over the tenancy right of the said rooms. Under the deed

45. In the suit before the City Civil Court the landlord has been dubbed as thevillain of the piece. It has been allegedthat it was the landlord who was seeking todispossess Pushpa Doshi from the said roomsas she refused to increase the rents or payselami.

46. In this suit, however, it is alleged that the plaintiff No. 1 and his criminal associates are seeking to dispossess the new partnership constituted by the defendants Nos. 1 and 2 from the said rooms. There is not a whisper of any allegation against the landlord.

47. In the above facts and circumstances I am unable to hold that the order of injunction passed in the earlier Title Suit No. 923 of 1983 by the City Civil Court which has not been disturbed either by this Court or by the Supreme Court stands in the way of the plaintiff in this suit. The present suit is more comprehensive and all parties interested have been included in this suit. The order passed in the suit pending in the City Civil Court is an interlocutory order and has not resulted in any final adjudication of the rights of the parties. The interlocutory order was passed in the City Civil Court on the 10th May 1983. Subsequent thereto the dispute between the parties escalated and the facts and events which arose or took place subsequently from part of the cause of action of the plaintiffs in the present suit. Principles analogous to those of res judicata, in my view, do not apply in the instant case.

48. Section 14 of the West Bengal Premises Tenancy Act provides, inter alia, as follows:--

'(1) After the commencement of this Act no tenant shall, without the previous consent in writing of the landlord, --

(b) transfer or assign his right in the tenancy or any part thereof.' Section 30 of the said Act further provides as follows:-- '(3) Any tenant who contravenes the provisions of Sub-section (1) of Section 14 shall, on the complaint of the landlord made to the Controller,..................... be liable to be fined which may on the first occasion extend to Rupees 100/- and on a second and/or subsequent occasion extend to Rs. 200/-.'

49. By reason of the aforesaid statutory provisions it also appears, prima facie that the alleged successive transfers of the tenancies in the said rooms on which the defendants Nos. 1, 2 and 3 have founded their case are illegal and prohibited in law and as such are unenforceable,

50. For the reasons above the plaintiffs succeed in this application. I appoint Mr. Sitesh Chandra Sinha, an Advocate of this Court a Receiver over the room in the dispute without security.

51. The Receiver is directed to keep the rooms under his lock and seat till the disposal of the suit.

52. The parties will be at liberty to pro-duce this order before the Police Authorities and/or in the pending criminal proceedings for suitable directions therein.

53. The Receiver is allowed an initial remuneration of 75 G. Ms.

54. Till the Receiver takes possession of the said rooms in dispute the defendants are restrained from obtaining possession of the same from the Police Authorities.

55. An oral application made on behalf of the defendants for stay of this order is refused.

56. The Receiver and all parties to act on a signed copy of the minutes of this order.


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