SHRI DENNY FERNANDES Vs. SHRI FRANCISCO SOUZA

JUDGEMENT

(1.) When the present revision application came up for hearing, it was noticed that the petitioner had preferred one revision application against more than one order of the lower appellate Court. It was noticed that by the present petition the petitioner sought to challenge the orders passed by the lower appellate Court in Miscellaneous Civil Appeal No. 108/91 and Miscellaneous Civil Appeal No. 109/91. Since it is not permissible to file one revision application against two orders passed in two different proceedings before the lower appellate Court, the advocate for the petitioner was asked either to justify the maintainability of one revision application against two orders passed by the lower appellate Court in two different proceedings or to restrict the revision application to any one of the orders of the lower appellate Court. Shri Walwaikar, the learned advocate for the petitioner, thereupon chose to restrict this revision application against the order passed in Miscellaneous Civil Appeal No. 108/91. At the outset, therefore, the revision application as far as it relates to the order in Miscellaneous Civil Appeal No. 109/91 stands dismissed as withdrawn.

(2.) The facts relevant for decision in the matter in brief are that the petitioner herein filed a suit being Regular Civil Suit No. 107/89/D for declaration that he is the tenant of the suit business and for injunction to restrain the respondent from interfering in the suit business and also for direction to the respondent to deliver certain counterfoils. The case of the petitioner is that he is running a business in House No. 282 of Ward 13 at Miramar, Panaji, under the name and style Welcome Restaurant; that up to 1980 the suit house was occupied by the respondent who was having his kiosk therein by name Welcome Cafe; moreover as the defendant could not manage the said kiosk, the same was closed down and the respondent let out the suit house to the petitioner for monthly rent of Rs. 250.00 and consequently the petitioner set up business therein under the name and style 'Welcome Restaurant; the said rent was exclusive of electricity charges which were being regularly paid by the petitioner since the inception of the lease; the petitioner sells various food items in the said restaurant; though the rents were regularly paid to the respondent, the latter approached the petitioner in May 1984 and suggested to him to purchase the suit business for Rs. 50,000.00 and further allowed him to make the payments in instalments and further proposed to have an agreement for sale duly executed and accordingly got an agreement executed and thereafter the petitioner paid a sum of Rs. 22,000.00 between the period from 1984 to 1986 to the respondent and further paid an amount of Rs. 2,000.00 and thereafter a sum of Rs. 8,500.00 was deposited in Jan. 1989 in the Bank Account of the wife of the respondent; meanwhile, the respondent took away from the petitioner the file containing counterfoils of various deposits made by him in the Bank; moreover, to the surprise of the petitioner he received a notice from advocate G.U. Bhobe on behalf of the respondent asking for the accounts, bills and vouchers etc., and details regarding the amount deposited in the Bank; being shocked to read the said notice, the petitioner suspected foul play and, therefore, filed the suit, inter alia, praying for the relief of temporary injunction.

(3.) The respondent disputed the claim of the petitioner and filed counterclaim along with his written statement claiming that the petitioner was a mere employee of the respondent pursuant to an agreement dated 15th May 1984 by virtue of which the petitioner was entitled only for monthly salary of Rs. 400.00 for the services rendered by him in "Welcome Cafe" and that as per the said agreement he was duty bound to submit all the vouchers, bills and counterfoils and give day to day accounts to the respondent and 1 that the petitioner had submitted such accounts as per the agreement from May 1984 to Feb. 1988; moreover for some time after Feb. 1988 the respondent fell sick and that taking advantage of his sickness, the petitioner became irregular in depositing the money in the Bank Account as well as rendering the accounts to the respondent and, therefore, notice dated 22nd May 1989 was served upon the petitioner terminating his services, which was duly received by the petitioner but the petitioner served a notice on the respondent dated 5th June 1989 refusing to render the accounts and that therefore, the respondent sought relief of declaration to the effect that the petitioner is a mere servant of the respondent in terms of Agreement dated 15th May 1984 and the business of Welcome Cafe alias 'Welcome Restaurant including all articles, utensils, furniture's therein are the absolute and sole properties of the respondent and further direction to the petitioner to render further accounts and further for the relief of permanent injunction to restrain the petitioner, his agents and servants from entering or interfering in any mariner with the business of Welcome Cafe or Welcome Restaurant. Inter alia the respondent also prayed for interim relief to restrain the petitioner from interfering or entering the business in any manner.