PROMOD SHOW Vs. MONAJ SHOW

JUDGEMENT

(1.) The instant second appeal is filed by the original Plaintiff against the Judgment and the Order of the First Appellate Court dtd. 26/03/2013. The plaint case in nutshell is that the Plaintiff is as follow:

(2.) The Trial Court dismissed the suit of the Plaintiff. It was observed by the Trial Court that Plaintiff, though admitted that he had been dispossessed from the business did not make any prayer for recovery of possession. The Plaintiff did not make any prayer for amendment of plaint either for recovery of possession or for a declaration of a proprietorship of the new business under the name and style of M/s. New Shaw Builders. It is further observed by the Trial Court that the suit property was admittedly in the name of the Defendant No. 2. There was no prayer for declaration of the status of the Plaintiff of the said premises. The Trial Court further observed that admittedly there is no existence of the business of the name and style of M/s. Shaw Builders. The Trial Court further observed that it is not possible for the court to grant any declaration on proprietorship over M/s. Shaw Builders which is not in existence presently. There is no further observation that prayer for amendment of plaint was rejected by order dtd. 21/06/2010 which order remained unaltered. As such, the suit is now infructuous as decided by the Trial Court. It was also observed that the Plaintiff failed to prove that he had been disclosed from the business which is run now by from M/s. New Shaw Builders. Considering material evidences adduced the Trial Court dismissed the suit.

(3.) An Appeal was preferred by the Plaintiff against the said Judgment and Order passed by the Trial Court dtd. 11/02/2011. After considering the reasoning of the Trial Court and evidences adduced by the parties, the First Appellate Court upheld the findings of the Trial Court in terms of the Judgment dtd. 23/03/2013. Thus, there are concurrent findings of the two courts both of which favoured dismissal of the suit. At the time of admission of the present second appeal, the following substantial questions of law were framed by the Division Bench:-