GOPIRAM ONEARMALL Vs. SEWANTILAL PUNAM CHAND

JUDGEMENT

(1.) THE defendant of the trial Court which is a firm of the name and style of Gopiram Onkarmal, is appellant in this appeal. The suit out of which this appeal has arisen was instituted in the trial court by respondent Sewantilal Punam Chand for a declaration of his tenancy right in two rooms on the third floor of premises No. 208 Cross Street, Calcutta. There was also a prayer for a declaration that the decree passed in an ejectment suit against the firm-name of the plaintiff is not binding on him. Subsequent to the institution of the suit a prayer was also made for obtaining delivery of possession of the disputed rooms, because during the pendency of the suit in the trial court the appellant firm had taken delivery of possession of the rooms by executing its decree.

(2.) THE suit was contested by the appellant firm. Its defence was that the firm bearing the name Sewantilal Punam Chand was the recorded tenant and the plaintiff was the sole proprietor of the firm and so the decree in question is binding on him. Another objection taken by the defendant firm was that the suit had lost its maintainability after delivery of possession had been taken by the defendant firm in execution of the decree and after an application filed by the plaintiff under O. 21, r. 100 of the Code of Civil Procedure for re-delivery of possession was dismissed by the executing court. Both the objections taken in the written-statement of the defendant were disallowed and the suit of the plaintiff was decreed. So the defendant has preferred this appeal. In this appeal Mr. Lala Hemanta Kumar appearing on behalf of the defendant appellant urged the same two points as had been urged in the trial court. The second point which involves a question of pure law was argued in a modified form in this court. We shall take up both the points one after another.

(3.) THE first point urged on behalf of the appellant involves the question- who was the tenant of the appellant firm? According to the appellant the firm bearing the name and style of Sewantilal Punamchand was the tenant. According to the plaintiff respondent, he was the tenant in his personal capacity and there was no existence of the firm against which the suit for ejectment had been decreed. Upon the evidence adduced by the parties the learned Judge of the City Civil Court who heard the suit came to the conclusion that the plaintiff respondent was the tenant and the firm against which the decree was obtained was not the tenant. Some rent-receipts and some chalans of the office of the Rent Controller would conclusively substantiate the contentions of the plaintiff respondent that he was the tenant in his personal capacity and no counter-foils of rent receipts were produced by the appellant firm to disprove this contention of the respondent. Mr. Lala Hemanta Kumar relied on the fact that in some earlier rent receipts, the name of the tenant figures as Sewantilal Punam Chand Choudhury, but the surname (Choudhury) has been dropped in some later rent receipts. From this omission of the surname Mr. Lala argued that the plaintiff was initially the tenant in his personal capacity, but later on the tenancy was converted in the name of the firm by the omission of the surname 'choudhury'. In our opinion, no such conclusion is permissible merely because of the fact that the surname Choudhury does not appear in some later rent receipts. The plea of the appellant that the tenancy was at first in the personal name of the appellant and was subsequently changed in the name of the firm was taken for the first time during the hearing of the suit in the trial court. In the written-statement the objection taken in this regard was that the firm was all along the tenant and the respondent was never the tenant in his personal capacity. On a consideration of all these facts and circumstances we are of opinion that the decision of the trial court that the respondent was the tenant of the disputed premises in his personal capacity and the firm was never the tenant is correct. The decree passed in the ejectment suit is not, therefore, binding upon the respondent. The first point urged on behalf of the appellant, therefore, fails.