SHIVRAM Vs. CHIMANLAL

JUDGEMENT

(1.) This is an appeal under O.43, Civil P.C. against the interlocutory order passed by the learned Judge of the City Civil Court, Ahmedabad, whereby he vacated the ex parte 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 as Ellisbridge, Opposite Main Gate of Gujarat College at Ahmedabad. For the sake of convenience, the parties in this appeal will be referred to as plaintiff and defendants. Originally the suit shop belonged to defendant 6 who is said to have transferred the suit shop to the defendant 1. It is the case of the plaintiff that defendant 1 transferred the suit shop to the plaintiff in December 1981 for a consideration of Rs. 20,000/-. 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. 20,000/- to defendant 1 in December 1981 and defendant 1 handed over the possession of the suit shop to the plaintiff to run the business in the suit shop in his own name 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 foodgrains, 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, defendant 1 became envious and he tried to take back the suit shop from the plaintiff. Defendant 1 employed all available means to take back the suit shop from the plaintiff including intimidation and forceful dispossession. It is further the plaintiff's case that defendant 1 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 highhanded behaviour of defendant 1, 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-Divisional Magistrate had sealed the suit shop, defendant 1 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 defendant 1 and defendant 6 have colluded with a view to oust him from the suit shop. According to him, originally the suit shop belonged to defendant 6, but he had transferred to defendant 1 who was accepted as a direct tenant by the subsequent landlord Sabar Hotel Ltd., who purchased the property from the previous landlady. Therefore it is common ground between the plaintiff and defendant 1 that the latter was direct tenant and that defendant 6 had no tenancy rights or any right, title or interest in the suit shop. Finally, according to the plaintiff, defendant 1 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 defendant 1, 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.) Defendant I 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 defendant 1. Thus, the only dispute between the plaintiff and defendant 1 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 defendant 1. 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 Exs. 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. Ex. 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. Ex. 18/ 19 is a circular letter dated 1-12-1982 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 22-12-1982 at 4.00 p.m. The plaintiff has also relied on Exs. 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 defendant 1 had got the plaintiff beaten up and forcibly removed from the suit shop. The plaintiff has also relied on the circumstance that defendant 1 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 defendant 1. The plaintiff has also relied on the affidavits of the shopkeepers who have stated that the plaintiff used to come to purchase vegetables, food grains, spices and other articles from their respective shops for the purpose of using those articles in the suit shop.