BHUPAL SINGH Vs. BHAGWATI PRASAD

JUDGEMENT

(1.) The petitioners have filed this petition under Section 115 CPC against the order dated 21-1-1998 passed by the learned Additional Civil Judge (Sr. Div.), Bhilwara in civil original suit No. 122/93 by which the learned Civil Judge dismissed the application filed by the petitioners under Order 1 Rule 10 CPC.

(2.) The plaintiff Bhagwati Prasad-non-pet. No. 1 filed a suit against defendant-non-pet. No. 2 in the trial Court for ejectment and recovery of rent with the allegations that the defendant took the suit shop described in para 1 of the plaint on rent at Rs. 335/- per month for doing business of motor part machinery from the plaintiff and the former executed a rent note in favour of the latter. A perusal of the rent note shows that Lalit Kumar mentioned himself as proprietor of firm M/s. Pankaj Machinery Mart. Laxminarain Mandir Road, Bhilwara. The plaintiff alleged that the defendant did not pay rent as per contract and also abandoned the suit shop for the last three years. The defendant has left Bhilwara and joined service in Government College, Rajkot, Gujarat as Lecturer. He has allowed other persons to occupy the same illegally. The plaintiff further stated that he required the suit shop reasonably and bona fide for the business of his son Rajkumar as described in para 5 of the plaint. The plaintiff, therefore, prayed for the ejectment of the defendant and decree for arrears of rent.

(3.) The petitioners moved the above application with the allegations that the suit shop was in fact taken on rent by the petitioners and Lalit Kumar jointly for running the business in the name and style "M/s. Pankaj Machinery Mart". The petitioners and Lalit Kumar constituted a Joint Hindu Family and the suit shop was taken for doing the joint family business in the above name and style. It was also alleged that Lalit Kumar went to the plaintiff to negotiate the agreement for taking the suit shop on rent and during the negotiations Lalit Kumar clearly stated that the suit shop was being taken for the joint family business by the Joint Hindu Family of which he and his brothers are members. Since Lalit Kumar is the eldest, the rent note was written by him. The petitioners stated that after taking the suit shop in the above manner, the petitioners are carrying on business of machinery mart and Lalit Kumar also joins the firm whenever he comes to Bhilwara. It was further stated by the petitioners that the rent was paid to the plaintiff several times by one petitioner or the other. Rent receipts have also been produced by the petitioners. The application was stoutly resisted by the plaintiff on the ground that the suit shop was only taken on rent by Lalit Kumar individually as a proprietor of the above firm. The plaintiff categorically denied that the suit shop was also given on rent to the petitioners along with Lalit Kumar. The rent note was executed by Lalit Kumar in his individual capacity mentioning himself as proprietor of M/s. Pankaj Machinery Mart. After obtaining the shop on rent, he surrendered the sales tax numbers and the petitioners, thereafter, obtained fresh sales tax numbers. This clearly shows that the business of Lalit Kumar was distinct from the business of the petitioners. Lalit Kumar has abandoned the shop and also surrendered his own sales tax numbers. The petitioners are attempting to take undue advantage of their relationship with Lalit Kumar and also of the fact that Lalit Kumar illegally handed over the possession of the suit shop to the petitioners. The petitioners are, therefore, trespassers and not entitled to any protection. The learned trial Court, after hearing both the parties, came to the conclusions that the suit shop was taken on rent by Lalit Kumar alone. The petitioners have got no right, title or interest in the suit shop. They are in occupation of the same as unauthorised persons. He, therefore, dismissed the application.