1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7110 OF 2002 M/s.Hakimbhai Esmaiji & Co; Shop No.B-11, Ground Floor, Lalsingh Mansingh Building, Shaikh Memon Street, Mumbai 400 002. Petitioner versus 1. Smt.chandrakumar Harnamsingh Chowhan, 2. Kamleshsingh Harnamsingh Chowhan, Room Nos.C-19 and 20, 4th floor, Lalsingh Mansingh Building, Lohar Chawl, Shaikh Memon Street, Kitchen Garden Lane, Mumbai 400 002. Respondents Mr.P.K.Dhakephalkar and Anil Chauhan i/by N.N.Vaishnawa & Co. for petitioner. Mr.Vivek Kantawala a/w Ms.Sneha Nanandkar i/by Vivek Kantawala & Co. for respondents. CORAM : A.S.OKA, J. DATE : 11th March 2010 JUDGMENT :- 1. The petitioner is the original original defendant and the respondents are the plaintiffs. The respondents filed a suit for eviction against the petitioner in the Court of Small Causes, at Mumbai in respect of suit premises being Shop No.B-11, Ground Floor, Lalsingh Mansingh Building, Shaikh Memon Street, Mumbai 400 002. The suit was filed claiming 2 possession on various grounds. The case of the respondents is that the petitioner firm is the tenant in respect of the suit premises. A notice for interim injunction was taken-out by the respondents. The prayer in the said notice, inter alia, was for grant of temporary injunction restraining the petitioner from parting with possession of the suit premises. An affidavit in reply was filed by one Mr.Hussain, a partner of the petitioner, to the notice for interim injunction. In paragraph 3 of the affidavit, the said partner stated that the suit premises is the only business premises of the petitioner and that the petitioner has no intention to part with possession thereof or induct any third party therein. The said statement was accepted as an undertaking of the petitioner and by accepting the said statement and undertaking, the notice was discharged. Thereafter, an application was made by the respondents in the form of an interim notice for striking out the defence of the petitioner in exercise of power under rule 11(1) of Order XXXIX of the Code of Civil Procedure, 1908 ("Code" for short). The case made out in the application was that the petitioner has committed breach of the undertaking and has parted with possession. The said notice was contested by the petitioner by filing a reply. The learned Trial Judge made the notice absolute and directed that the defence of the petitioner be struck out. An appeal was preferred by the petitioner against the said order. There was a cross objection filed by the respondents challenging that part of the order of the Trial Court whereby prayer for detention in the civil prison was rejected. By the impugned order, the Appeal Bench of the Court of Small Causes dismissed the appeal and also dismissed the cross objection. 3 2. The learned Senior Counsel appearing for the petitioner has taken me through the impugned order and annexures to the petition. He submitted that the allegation made by the respondents in the notice taken- out under Rule 11 of Order XXXIX of the said Code was that possession has been parted with in favour of one Rajendra Shah who was subsequently impleaded as second defendant and that there is no finding recorded that the possession was parted in favour of said Rajendra Shah. He pointed out that in fact an affidavit was filed by said Rajendra Shah stating that he is not in possession. He invited my attention to the findings recorded by the Appeal Bench. Inviting my attention to the findings in paragraphs 7 and 8, he submitted that the findings are only prima facie findings and drastic order of striking out of the defence of the petitioner cannot be passed on the basis of such prima facie findings. He submitted that in paragraph 7 of the impugned order, the Appeal Bench has noted that said Rajendra Shah-the second defendant is there on record and through him all possible defences such as he was not inducted in the suit premises can be proved by leading evidence. He pointed out that the issue whether the second defendant is illegal sub-tenant or not has been kept open to be decided at the time of hearing. As far as parting with possession is concerned, he submitted that the allegation that the possession has been parted with in favour of Rajendra Shah is not established. He submitted that only on basis of a certificate produced before the Sales Tax Authorities, a finding of fact ought not to have been recorded that the petitioner has parted with possession. He pointed out 4 that both the partners of the petitioner continue to be partners in the business carried on in the suit premises and there is no finding that unlawful transfer or sub-tenancy has been proved. He submitted that as the respondents have failed to prove that said Rajendra Shah was placed in possession in breach of the undertaking, drastic order of striking out of the defence could not have been passed. He submitted that the findings recorded of the breach are based on conjectures and surmises and, therefore, the impugned orders will have to be quashed and set aside. He submitted that the suit is for possession and by passing such drastic order without there being any factual foundation, the petitioner cannot be prevented from defending the suit. 3. I have given careful consideration to the submissions. In the plaint the petitioner firm has been impleaded as the defendant and a specific stand taken is that the petitioner firm is the tenant. Written statement has been filed by the petitioner. In paragraph 4 of the written statement the petitioner has asserted that it is the petitioner firm who is the tenant. It will be necessary to consider the order passed on the notice for temporary injunction. In paragraph 5 of the said order, a reference has been made to an affidavit-in-reply filed by one Mr.Hussain, partner of the petitioner. Paragraph 5 reads thus :- "5. ... ... ... In para no.3 of affidavit-in-reply defendants partner Mr.Hussain stated that the defendants are the tenant of the suit premises since 1982 and this is the only place of business of the defendants and they have no intention to part with possession thereof or induct any third party therein. With this statement of partner of the 5 defendants, it is clear that the defendants have no intention to part with the possession of the suit premises. This statement is made on "Oath" by the partner of the defendants. Such statement made in affidavit in reply on "Oath" is nothing but "an undertaking". I accept the statement of the defendants referred above as an undertaking. I accept the undertaking of partner of the defendants as referred to above and find that the plaintiff are not entitled to order of injunction as prayed. I record my finding on point no.1 in the Negative, thus following Order. ORDER After accepting the statement of defendant in para no.3 in affidavit-in-reply and recorded above as an undertaking the notice discharged. The parties to bear their costs as incurred." Thus, the undertaking of the petitioner was that the possession will not be parted with and third parties will not be inducted. The undertaking given by the petitioner on oath has been accepted by the Trial Court and the said order dated 14th June 2000 has not been challenged by the petitioner. Thus, there is no dispute that an undertaking has been given by the petitioner that possession will not be parted with and a third party will not be inducted. In the notice taken out by the respondents under Rule 11 of Order XXXIX of the said Code, it is set out that the petitioner firm was carrying on business in the suit premises in the name and style of "Oscar" and after proposed second defendant was inducted, the name has been changed to "Bakul Fab" and "Oscar Plus". The specific allegation is that the breach of undertaking has been committed by the petitioner. It will be interesting to note as to what is stated in reply filed to the said notice by one Mr.Hussainbhai, a partner of the petitioner. In paragraph 4 he has stated thus :- 6 "4. With reference to paragraph 5, I say that the defendants alone are in possession of the suit premises. I deny that the proposed defendant no.2 is in possession of the suit premises. I say that he has filed his affidavit in Notice No.4940 of 2000 and I crave leave to refer to and rely upon the same when produced. I say that the partners of the defendants and their sister, TASNEEM @ NASEEM and one RAJENDRA J. SHAH and his son CHIRAG formed a partnership in the name and style of M/s.Oscar Plus and have been carrying on business under Deed of partnership dt.4.9.2000 and I crave leave to refer to and rely upon the same when produced. I say and submit that the said partners have no right in the tenancy of the suit premises and the said Rajendra and his son Chirag attend the business of the said partnership and myself and Mr.Hakimbhai open and close to shop and the possession of the shop is with the defendants." In paragraph 5 he has stated thus :- "5. ... ... ... With reference to paragraph 6, I say that we have been doing business in the name and style of M/s.Oscar Plus. ... ..." 4. The second defendant Rajendra Shah was impleaded as a respondent to the application filed by the respondent. He has also filed an affidavit. In paragraph 3 of the affidavit he has stated thus:- "3. ... ... I say that myself and my son, and Hussain Esmail and Hakimbhai Esmail and their sister, Tasnik @ Esmail @ Nasim D/o.Esmail, have formed partnership on terms and conditions as set out in a partnership deed dated 4.9.2000 on and from 4.9.2000 and have agreed to carry on business in the name and style of M/s.Oscar Plus at Shop No.B-11, at 410.A, Ground Floor, Lalosingh Mansingh Building, Sk.Memon Street, Bombay-400 002 to carry business in bedsheets, towels, napkins and general cloth and allied articles and the said partnership is at will and their share is 51% and my share is 25% and my sons share is 24% in the profits and loss of the said firm. It is agreed between us that tenancy rights of the said shop shall be of the said Husainbhai and Hakimbhia and 7 partnership firm and/or other partners shall not have any right, title or interest therein and I crave leave to refer to and rely upon the said partnership deed when produced. I say that myself and my son, Chirag have no right in the tenancy of the said shop and we are not in possession thereof nor have we been induced therein. The said Husainbhai and Hakimbhai and Tasnim @ Nasim open and close the said shop and we are there as partners of the said firm and no right in the tenancy thereof. ... ..." 5. The partner of the petitioner in his reply has come out with the case that he along with the other partner of the petitioner, their sister Tasneem, one Rajendra Shah and his son Chirag Shah have formed a partnership firm in the name and style as "Oscar Plus" and have been carrying on business in the suit premises under the deed of partnership dated 4.9.2000. It is further stated that the partners of the said firm M/s.Oscar Plus have no right as regards tenancy in respect of the suit premises. It is further stated that the said Rajendra Shah and his son Chirag attend the business of said partnership firm M/s.Oscar Plus. In paragraph 5 he has reiterated that the petitioner has been doing the business in the name and style as "Oscar Plus". Thus, on own showing, the petitioner has come out with a case that a new partnership firm has been formed by its partners, Mr.Shah and his son Mr.Chirag in the name and style of "Oscar Plus" and that the said partnership firm is carrying on business in the suit premises. This is not a case where a partnership firm which is the tenant inducted third parties as partners in the said firm. This is a case where admittedly partners of the petitioner firm formed a new partnership firm along with strangers and admittedly the business of the new partnership firm is being carried on in the suit premises. As far as affidavit of Rajendra Shah is concerned, he has reiterated that along with the partners of the petitioner 8 and their sister, he and his son have formed a partnership by partnership deed dated 4.9.2000 and have been carrying on business of the said firm in the name and style of "M/s.Oscar Plus" in the suit premises. All that he says is that he himself and his son have no rights in the tenancy in respect of the suit premises and they are not in possession thereof nor they have been inducted therein. The later part of the statement is important as a partner of the petitioner himself has stated that the new partnership firm namely M/s.Oscar Plus is carrying on the business in the suit premises. In fact, Rajendra Shah has stated that under the partnership deed of the new partnership firm M/s.Oscar Plus, the partners have agreed to carry on the business in the suit premises. Thus, in view of what is stated in affidavits filed by the petitioner and said Rajendra Shah, it is clear a new partnership firm constituted on 4.9.2000 is admittedly carrying on business in the suit premises. 6. The impugned order of the Appeal Court consist of two parts. In the first part the Appeal Court has considered the allegation regarding parting with possession and in the second part the Appeal Court has dealt with creation of interest in favour of the second defendant or unlawful sub- tenancy. The second part rightly records a finding that as far as creation of interest or sub-tenancy is concerned, the same can be determined only on the basis of evidence. In the first part of the order a reference has been made to certificate submitted to the Sales Tax authorities which is signed by Tasneem who is admittedly the sister of one of the partners of petitioner. There is no dispute that the said certified was issued by said 9 Tasneem. The certificate reads thus :- "TO WHOMSOEVER IT MAY CONCERN This is to state that the tenancy right of the premises belongs to Hakimbhai Esmailji & Co. where in Husaineebhai Kapadia and Hakimbhai Kapadia is partner in Oscar Plus. We have allowed Oscar Plus to use the premises for their business purpose." Not only this, along with the said certificate a form containing basic information of the business of "Oscar Plus" was enclosed and the name of the applicant is shown therein as Mr.Chirag Rajendra Shah who has signed the form. In fact, the Appeal Court has noted that it could have been understood that if the petitioner firm had inducted one or two partners. But altogether a new partnership firm has been formed which is admittedly carrying on business in the suit premises. There is a categorical finding recorded by the Appeal Bench of Court of Small Causes on the basis of the admitted documents that the possession was parted with in favour of another firm incorporated on 4.9.2000. In fact, there is a clinching admission in the affidavit of the partner of the petitioner that it is the said newly constituted separate firm which is carrying on business in the suit premises. 7. In the suit for eviction filed by the respondent interim application was taken-out to ensure that during pendency of the suit, the petitioner does not part with possession. A solemn undertaking on oath was given by the partner of the petitioner that possession shall not be parted with. There are concurrent findings recorded by the Courts below that 10 possession has been parted with. The said concurrent findings are based on admitted documents on record. The concurrent findings are fully supported by the version of the petitioner in the reply as well as version of Rajendra Shah in his affidavit. Thus, this is a clear case of gross breach of undertaking given on oath not to part with possession. The undertaking was accepted and in view of the undertaking, the notice for injunction was disposed of without passing any order. Therefore, this was a fit case where power under sub-rule 1 of Rule 11 of Order XXXIX of the said Code should have been exercised and the same has been rightly exercised by the Courts below. No case for interference is made out. The writ petition is rejected accordingly. Rule is discharged. 8. The petitioners are directed to pay costs of Rs.15,000/- to first and second respondents. Learned Senior Counsel for the petitioners prays for continuation of interim relief granted on 7th September 2003. Considering the fact that the order impugned is of drastic nature, the said request requires to be accepted. Accordingly, it is directed that interim relief granted on 22nd April 2003 will continue to operate for a period of twelve weeks from today. (A.S.OKA, J.)