EDULJI RUSTOMJI Vs. MOHANDASS MAGHARAM

JUDGEMENT

(1.) BY the Court - This is a plaintiffs' second appeal and arises out of a suit for the recovery of Rs. 1611/1/9 on account of damages, rent and other charges from 6th of April, 45, till 31st of Dec, 46, at Rs. 100/- per mensem. A few facts may be stated in order to show how the points in issue between parties have emerged. Edulji and Rustomji sons of Nowroji were carrying on business at Jodhpur in the name and style of Messrs. Edulji Nowroji & Co. in the shop outside Sojati Gate belonging to Shankerlal Vyas. They also lived on the premises in the upper storey and were paying Rs. 100/- per mensem as rent for the shop as well as the residential portion. On 6th of April, 45, they sold the entire business including the stocks in the shop and the goodwill to Messrs. Mohandass Magharam of Karachi by means of a registered sale deed and delivered the possession of the shop to them. It is contended that the understanding between the parties was that Mohandass and Magharam will vacate the shop, remove the stocks from there and carry on business elsewhere, of course, in the name and style of Edulji Nowroji and Company. The vendors asked them time and again to remove the goods from the shop but the fact remains that they did not do so and continued to be in possession of it. Instead of the vendors taking any action against the vendees for refusing to vacate the shop, it appears that on 3rd of Oct. , 45 vendees instituted a suit against the vendors for a permanent injunction restraining them from continuing to carry on business still in the name and style of Messrs. Edulji Nowroji and Co. , although this business had been sold by them. During the suit, while issuing a temporary injunction against the vendors the following directions were given to them: - (1) that they shall not carry on any business in the name of M/s. Edulji Nowroji & Company; (2) that the electric current supplied to the business premises shall be restored; (3) that the lock of the latrine shall be removed

(2.) INJUNCTION with regard to the last two items was granted subject to the condition that the vendees shall executed an agreement for payment of Rs. 100/- p. m. on account of rent of the business premises plus charges for consumption of electric current. This agreement, which is Ex. P. 1, was duly executed on 13th of Nov. , 45 in favour of Messrs. Edulji & Rustomji Bhajiwala and runs as follows : - "in pursuance of the order of the District Court No. 3 dated 3. 11. 45, we, Mohandass Magharam, proprietors of M/s. Edulji Nowroji execute this rent note in favour of Edulji Rustomji Bhajiwala that we are in possession of the premises near Sojati Gate, where you kept the goo is and carried on business of Edulji Nowroji & Co. as your sub-tenants, that we agree to pay to you a monthly rent of Rs. 100/- only for these premises. This rent has been tentatively fixed as per orders of the district court No. 3 and would be subject to the decision of a competent court as to the proper rent payable for these premises. That we also agree to pay the electric charges in respect of electric current consumed by us. "