GORAKHRAM GOKALCHAND Vs. RAIZADA TOPANDAS

JUDGEMENT

(1.) THESE two appeals arise out of two suits filed in the Bombay City Civil Court at Bombay. Suit No. 2058 of 1959 is filed by Messrs Gorakhram Gokalchand, a firm carrying on business at Choksey Chamber, Zaveri Bazaar, Bombay. Their case is that they are the tenants of a shop hearing No. 582/638. Defendants Nos. 1 and 2 are father and son and are carrying on business in art silk goods. By an agreement dated June 23, 1955, defendant No. 1 appointed the plaintiffs as his commission agents for the purpose of the sale of cloth at the said shop of the plaintiffs at Mulji Jetha Market. It was agreed that the agreement shall remain in force for a period of four years terminating on June 30, 1959. It was further agreed that the plaintiffs should be entitled to the commission at the rate of 2 annas per sale of goods worth Rs. 100, defendant No. 1, however, guaranteeing a minimum amount of Rs. 500 per month as and by way of commission. In para. 5 of the plaint the plaintiffs referred to Clauses 3 of the agreement dated June 23, 1955. Clause 3 read as follows: - That my art -silk goods will be stocked in your shop at Govind Galli, Mooljee Jetha Cloth Market, Bombay and that myself, the members of my family, my servants and family agents only shall have your permission to utilise your said shop premises for the purpose of looking after my said business. The plaintiffs stated that pursuant to the above term defendant No. 1 and defendant No. 2 and/or their servants were permitted by them to visit the said shop of the plaintiffs only for the purpose of looking after the said business of commission agency carried on by the plaintiffs. The plaintiffs further stated that by the agreement only a personal right had been created in favour of defendant No. 1 permitting him to enter the shop only for the purpose of looking after the business without creating any right of whatsoever nature in respect of the said shop. The agreement dated June 23, 1955, came to an end by efflux of time on June 30, 1959. On determination of the said agreement the plaintiffs called upon defendant No. 1 to finalise the accounts in respect of the business which was being carried on at their shop premises. They informed defendant No. 1 that they were no longer desirous of continuing the said business and act as his commission agents and asked him to make up the accounts and remove the stock -in -trade etc. lying at their said shop premises. The plaintiffs also intimated to the defendants that as the agreement had come to an end, defendants and/or their family members and/or their agents or servants should not enter into the shop and disturb them. The defendants, however, did not heed to the notice given by the plaintiffs. The defendants, their servants and their agents continued to visit the shop premises daily even after the expiry of the period of the agreement and wrongfully prevented the plaintiffs from attending to the business at their shop. The plaintiffs, therefore, instituted the suit for a declaration that they are in lawful possession of the shop premises bearing No. 582/638 at Mulji Jetha Market, and that the defendants, their family members, servants and agents have no right to enter into or remain in possession of the said shop after June 30, 1959. They have prayed for an injunction restraining the defendants, their servants, agents and family members from entering into the said shop premises. They have also prayed for the amount of commission which may he found due and payable to them under the agreement dated June 23, 1955.

(2.) THE defendants resisted the suit. It is not necessary to set out the several contentions raised by the defendants in their written statement. For our present purpose we need only refer to the contention raised by the defendants in regard to the jurisdiction of the Court in which the suit has been instituted by the plaintiffs. It was contended that defendant No. 1 was the lawful tenant of the plaintiffs in respect of the suit shop premises and, therefore, in view of the provisions of Section 28 of the Bombay Rent Act it was the Court mentioned in that section which alone could entertain the suit and not the Bombay City Civil Court.

(3.) IN the other suit being Suit No. 390 of 1953 the case of the plaintiffs was that the defendant was their licensee and the relief claimed by them was for a declaration that the defendant had ceased to be their licensee and therefore be directed to hand over peaceful and vacant possession of the premises along with the furniture and other articles lying in the premises. The defendant in that suit also raised the same contention as was raised by the defendants in the first suit to which we have already adverted. He stated that he was the tenant of the furnished premises in. the suit and the plaintiffs were his landlords and as there was a relationship of landlord and tenant between the plaintiffs and the defendant, the provisions of the Bombay Rent Act applied to his case and therefore the Bombay City Civil Court had no jurisdiction to entertain the suit.