M J TALEGAONKAR Vs. TEJOOMAL LAKHMICHAND NARANG

JUDGEMENT

(1.) THIS appeal is by M. J. Talegaonkar, defendant No. 1, who was described in the plaint of the Suit No. 604 of 1974 as a member of Bombay Zionist Association for himself and representing all the members of the Bombay Zionist Association, an unregistered Association, having its office at Narang House, 2nd Floor, 41-45, Hamam Street Bombay. The plaintiffs respondents Nos. 1 and instituted in this Court the said Suit No. 604 of 1974, inter alias for declaring that the Bombay Zionist Association and the 1st defendant and all members of the said Association or persons claiming through them and the defendants Nos. 2 to 13 had no right, title or interest in the said suit premises, viz. , part of the 2nd floor at 41-45, Hamam Street, Bombay, or any part thereof. The prayer (b) of the plaint was for ordering the 1st defendant and all members of the Bombay Zionist Association and the defendants Nos. 2 to 13 to remove themselves and to deliver to the plaintiffs vacant possession of the suit premises. The prayer (c) of the plaint was for recovering from the defendants compensation from July 1971 at the rate of Rs. 240/- per month till 30th April, 1974 for wrongful occupation of the suit premises and further damages till the delivery of possession. The plaintiffs were granted leave under Order 1, Rule 8 of the Code of Civil Procedure for suing the 1st defendant as representing the members of the Bombay Zionist Association.

(2.) IT is undisputed that long before the plaintiffs-respondents Nos. 1 and 2 became the owners of the building known as Narang House situate at 41-45, Hamam Street, Bombay and at least since the year 1921, a tenancy shown in the name of the Bombay Zionist Association in respect of a part of the second floor of the said building had been in existence. The then owners till they transferred their right, title and interest in favour of the plaintiffs respondents Nos. 1 and 2 used to throughout grant rent receipts in respect of the said premises in the name of the Bombay Zionist Association. It is also not disputed that the Bombay Zionist Association is an unregistered body. With effect from 1st June, 1950 the plaintiffs respondents Nos. 1 and 2 became owners of the premises and thereafter had issued a letter calling upon the Bombay Zionist Association to attorn as a tenant in respect of the said premises under them. It is also not disputed that since the said purchase made by the plaintiffs-respondents Nos. 1 and 2 all along rent used to be paid in the name of the Bombay Zionist Association for which the plaintiffs had granted rent receipts describing the said Association as their tenant in respect of the premises in question. Thereafter the plaintiffs had given a notice addressed to the said Association purporting to determine the said tenancy standing in the name of the Association. A reply was sent on behalf of the Association to the plaintiffs. Thereafter on 2nd March, 1964 the plaintiffs served a second notice to quit again addressed to the Bombay Zionist Association to which again a reply was sent on behalf of the Association. Thereafter, on or about 2nd December, 1964, the present plaintiffs had filed R. A. E. Suit No. 839/6863 of 1964 against the Bombay Zionist Association as a defendant in the Court of Small Causes at Bombay for eviction from the 2nd floor of the building at 63/67, Medows Street, Bombay. In the plaint of the said suit filed in the Court of Small Causes, Bombay, the plaintiffs had, inter alia, averred that the defendant Association was the tenant under the plaintiffs in respect of the suit premises and the said tenancy had been terminated by a notice to quit dated 2nd March, 1964. The plaintiffs further averred the grounds on which they were entitled to recover possession of the said premises from the defendant. The said suit was decreed ex parte against the defendant Association on 15th February, 1968. Upon application made by and on behalf of the defendant, in March 1969, the said ex parte decree passed in R. A. E. Suit No. 839/6863 of 1964 was set aside and the suit was restored. It further appears that the defendant in the said suit in the Court of Small Causes having raised objection about the frame of the suit on the ground that the Association was an unregistered one, the plaintiffs thereupon had applied for amendment of the plaint. The trial Court having rejected the said prayer, a revision was taken before the Division Bench of the Court of Small Causes at Bombay, but the revision was also unsuccessful. Thereafter, without obtaining leave from the Court of Small Causes at Bombay, the present plaintiffs had withdrawn the said suit for recovery of possession against the defendant the Bombay Zionist Association.

(3.) IT may be also noted that by granting rent receipts describing the Association as the tenant, the plaintiffs had received rent from the said Association upto the month of June 1971. The cheque issued as rent for the month of July 1971 in favour of the plaintiffs was dishonoured on presentation. On or about 4th September, 1971 the plaintiffs had addressed a letter to the 1st defendants lawyer to disclose the names of the office-bearers of the Association. No fresh notice purporting to terminate the alleged tenancy was thereafter issued by the plaintiffs. On 14th November, 1973 the plaintiffs had written a letter to the Bombay Zionist Association, inter alia, stating that the plaintiffs had been advised that there was no lawful tenancy between the plaintiffs and the Bombay Zionist Association as the Association was not a registered body and that there could not be any lease or tenancy between a landlord and such unregistered body. The Association was informed that the plaintiffs were taking proceedings in the appropriate Court for ejecting the Association and the information required by the letter was necessary for the institution of the said suit. By the same letter the plaintiffs had claimed moneys which had become due for use and occupation of the premises.