SHIVRAM ANTAIAH SHETTY Vs. CHIMANLAL AMBALAL TRIVEDI

JUDGEMENT

(1.) This is an appeal under Order 43 of the Civil Procedure Code against the interlocutory order passed by the learned Judge of the City Civil Court Ahmedabad whereby he vacated the ex-part ad interim injunction granted by it earlier while confirming other part of the interim relief. The dispute pertains to a shop called New Mysore Cafe situated at Ellisbridge OppMain Gate of Gujarat College at Ahmedabad. For the sake of convenience the parties in this appeal is be referred to as plaintiff and defendants. Originally the suit shop belonged to defendant No. 6 who is said to have transferred the suit shop to the defendant No. 1. It is the case of the plaintiff that the first defendant transferred the suit shop to the plaintiff in December 1981 for a consideration of Rs. 20 0 There was no writing executed between parties to record such an agreement. It is further the case of the plaintiff that under an oral agreement the plaintiff paid Rs. 20 0 to the first defendant in December 1981 and the Art defendant handed over the possession of the suit shop to the plaintiff to run the business in the suit shop in his own name and for his own benefit. According to the plaintiff he started his own business in the suit shop on and from 8-1-1982 with a formal opening ceremony. According to the plaintiff he applied to the Ahmedabad Hotel Owners Association to become a member of the Association. He was duly enrolled as a member on payment of requisite entrance fee and annual subscription. The plaintiff further stated that he purchased necessary furniture utensils and other articles for the suit shop. He also made purchases from time to time from different shops to buy materials such as food-grains vegetables oil coal soft drinks and other things required for running the business in the suit shop. According to the plaintiff when the business picked up the first defendant became envious and he tried to take back the suit shop from the plaintiff The first defendant employed all available means to take back the suit shop from the plaintiff including intimidation and forceful dispossession. It is further the plaintiffs case that the first defendant employed professional Gundas who had beaten up the plaintiff and forcibly taken possession of the suit shop. The plaintiff also stated that on account of high-handed behaviour of the first defendant the plaintiff filed a Chapter case before the Sub-Divisional Magistrate Ahmedabad who by his order sealed the suit shop. The plaintiff has also stated that prior to the Sub-Diviionsal Magistrate had sealed the suit shop the first defendant had forcibly taken away the furniture utensils and other articles including his bank account pass book from the suit shop which led to criminal proceedings before the metropolitan Magistrate Ahmedabad. The said furniture articles and other goods were restored to the plaintiff by the order of the court.

(2.) It is further case of the plaintiff that the first defendant and the sixth defendant have colluded with a view to oust him from the suit shop. According to him originally the suit shop belonged to the defendant No. 6 but he had transferred to the first 820 defendant who was accepted as a direct tenant by the subsequent landlord Sabar Hotel Ltd. who purchased the property from the previous land-lady. Therefore it is common ground between the plaintiff and the first defendant that the latter was direct tenant and that defendant No. 6 had no tenancy rights or any right title or interest in the suit shop. Finally according to the plaintiff the first defendant has lawfully transferred the suit shop to the plaintiff to run the hotel business by the plaintiff in his own name as a Proprietor and that the first defendant who had purposefully not executed any writing with regard to the transfer of the business in the suit shop wants to take unfair advantage of the fact that there is no writing with regard to the transfer of the business in the suit shop.

(3.) The first defendant does not dispute that the plaintiff was running the business in the suit shop since January 1982 but contends that the plaintiff is running the said business as a Manager of the first defendant. Thus the only dispute between the plaintiff and the first defendant is whether the plaintiff runs the suit business on his own behalf as a proprietor or whether he is running the business as servant agent or manager of the first defendant. To deal with this question it is necessary to look at the documentary evidence produced by the parties on the record of this case. The plaintiff has produced Exhibits 18/1 to 18/19 which are bills vouchers receipts circular letter etc. All these documents are in the name of the plaintiff and the name of the shop is stated to be New Mysore Cafe i.e. the suit shop. The said bills vouchers etc. are in respect of food-grains vegetables spices crockery coal oil soft drinks etc. which were used in running the hotel business in the suit shop. Exhibit 18/18 is a receipt issued by Ahmedabad Hotel Owners Association in the name of the plaintiff and is in respect of the suit shop. It is a receipt of Rs. 132/- comprising of Rs. 101 /- as entrance fees and Rs. 31 as annual membership subscription. It is dated 18-9-1982. Exhibit 18 is a circular letter dated 1-12-82 addressed to the plaintiff sent at the address of the suit shop informing him that the annual general meeting of the Association was to be held at Picnic House Kankaria Ahmedabad on 22 at 4-00 p.m. The plaintiff has also relied on Exhibits M/20 to M/26 for the purpose of showing that he (plaintiff) was running the business in the suit shop as a proprietor. The plaintiff has also produced on the record of the case a medical certificate dated 2-8-1983 showing that the plaintiff was beaten up with fists causing him numerous injuries referred to in the said certificate to show that the first defendant had got the plaintiff beaten up and forcibly removed from the suit shop. The plaintiff has also relied on the circumstance that the first defendant had taken away utensils furniture and other articles including the bank pass book of the plaintiff from the suit shop. Ultimately all these articles were restored to the plaintiff by the order of the court in the criminal proceedings which the plaintiff took against the first defendant. The plaintiff has also relied on the affidavits of the shopkeepers who have stated that the plaintiff used to come to purchase vegetables foodgrains spices and other articles from their respective shops for the purpose of using those articles in the suit shop.