MUNDRA MILL STORES CO. Vs. BIMLA DEVI PODDAR

JUDGEMENT

(1.) THE facts involved in this application which is treated by consent of parties as an appeal inter alia are that respondent Nos. 1, 2 and 3 are the owners of the premises No. 8, Canning Street, Calcutta now known as Biplabi Rashbehari Basu Road, Calcutta. The said premises was given on long lease originally to Mr. Galstan and after several assignments of leasehold interest Rai Bahadur Bansilal Abirchand Kasturchand which was a family concern of Badri Das Daga became the lessee. Badridas Daga was also the Promoter and Director of the family company known as Rai Bahadur Bansilal Abirchand Kasturchand Pvt. Ltd. The said Private Company was collecting rents from the sub-tenants inducted by the lessee and/or the assignee of the lessee. The said Private Company was also paying rents under the lease to the owners and obtaining rent receipts in the name of the said family Firm Rai Bahadur Bansilal Abirchand Kasturchand. Upon expiry of the tenure of the long lease which was for a period of 10 years and expired on January 1, 1978 the suit for possession was filed in this Court being suit No. 131 of 1978. The lessee assignee and the said Private Company were made defendants in the said suit. In addition thereto the sub-tenants and/or occupants as were known to the owner were made party defendants. Originally there were 93 defendants in the suit. After filing of the suit plaintiffs to the said suit came to learn of some other sub-tenants occupants and added 10 more party defendants in the suit. The petitioner herein was one of those added defendants. In the suit the said Family Firm of Badri Das Daga and the Private Company both filed written statements. Several of the sub-tenants also filed separate written statements. Writ of summons in the suit was served on Mundra Mill Stores Company on December 15, 1980 which was accepted by R.K. Mundra as authorised agent for and on behalf of Bulakidas Mundra. Service by registered post was also accepted by R.K. Mundra on behalf of Bulakidas Mundra. The defendant No. 98 in the suit was described as follows : "Bulakidas Mundra carrying on business under the name and style of Mundra Mill Stores Company." R.K. Mundra means Raj Kumar Mundra. Raj Kumar Mundra is the son of Bulakidas Mundra. Another sub-tenant namely Mundra and Co. was made defendant No. 54 in the suit. Defendant No. 54 filed written statement in the said suit and through Raj Kumar Mundra gave evidence in the suit. Defendant No. 98 Mundra Mill Stores Company did not file any written statement. The suit was heard for several days and several witnesses were called by both sides. Raj Kumar Mundra stated in Examination in Chief that he is a partner of Mundra Mill Stores Company and also of Mundra and Co. Raj Kumar Mundra categorically stated in his evidence that Mundra Mill Stores Company is in occupation of one shop Room at No. 138, Canning Street, Calcutta and the firm or business by the name of Mundra Mill Stores Company is not at No. 8, Canning Street, Calcutta. Raj Kumar Mundra and Bijoy Kumar Mundra are the brothers and are living in the same house at No. 52, Pathurai Ghat Street, Calcutta as will be evident from the Telephone Directory and they are sons of Bulakidas Mundra. After protracted litigation a decree for possession was passed by this Court on July 25, 1990. Appeal was filed and application for stay of execution of decree was made, inter alia by Mundra and Co. The said application for stay is affirmed by Raj Kumar Mundra. The conditional stay has been granted and the Mundra & Co. and several sub-tenants who have preferred separate appeals have been directed to deposit the amount of mesne profit calculated at the rate of 1.16 p. per sq. ft. from the date of expiry of the lease till 30th November, 1990 and thereafter they have been directed to go on depositing month by month at such rate. Room Nos. 8A and 8B are adjacent to each other. It now appears that Mundra Mill Stores Company did not file written statement and defend the suit in its own name because they are not actually occupying any portion of the suit premises. Mundra and Co. and Mundra Mill Stores Company have even on the basis as disclosed by them have common partners. The partners of Mundra Mill Stores Company as disclosed in the alleged deed of partnership are four sons of Bulakidas Mundra and wife of Bulakidas Mundra. Partners of Mundra and Co. as disclosed in the evidence of Raj Kumar Mundra are his father Bulakidas Mundra, his 3 brothers and wife of Raj Kumar Mundra and wife of one of his brothers. As stated in evidence that he and one of his brothers look after the business of Mundra and Co. From the above it is evident that even if Mundra Mill Stores Co. occupied room No. 8A of the first floor of the said premises the partners of the said firm at all material times were aware of the suit No. 131 of 1978 filed by the respondent Nos. 1, 2 and 3 herein. The same would also be evident from the fact that M/s. Mundra Mill Stores Co. has paid rent to the joint receivers appointed in the instant suit No. 131 of 1978. It is significant that at the time of service of the writ of summons Raj Kumar Mundra did not raise any objection that Bulakidas Mundra was not the sole proprietor of the firm of the Mundra Mill Stores Co. who was the sub-tenant and supposed to be in occupation of room No. 8A on the first floor of the said premises. Not having taken any part in the proceedings in the instant suit, the appellant filed a suit in this Court being suit No. 185 of 1991 only after the decree of eviction dated 25.7.1990 was passed in the instant suit. In the said suit No. 185 of 1991 filed by the appellant, the appellant claims the following reliefs :-

(2.) IN the said suit No. 185 of 1991 the appellant made an application praying for the following reliefs :-

(3.) AD -interim order, suitable order be passed as to costs of and incidental to this application, such further or other order or orders be passed and direction or directions be given as to this Court as may seem fit and proper.