1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1634 OF 2003 NOTICE OF MOTION NO.1634 OF 2003 NOTICE OF MOTION NO.1634 OF 2003 IN IN IN SUIT NO.1557 OF 2003 SUIT NO.1557 OF 2003 SUIT NO.1557 OF 2003 M/s. Radio Restaurant & Ors. ...Plaintiffs Vs. Abdul Wahid Gulam Rasul & Ors. ...Defendants ----- Mr. D.H.Mehta, Sr. Counsel with Mr. P.M. Shah i/b. Mr. L.N. Patil for Plaintiffs Mr. E.P.Bharucha, Sr. Counsel i/b. Mr. P.K.Vyas for Defendants CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. DATED: 5TH AUGUST, 2005 DATED: 5TH AUGUST, 2005 DATED: 5TH AUGUST, 2005 P.C. P.C. P.C. 1. The Plaintiffs 2 and 3 claim to be the only 1. The Plaintiffs 2 and 3 claim to be the only 1. The Plaintiffs 2 and 3 claim to be the only partners of Plaintiff No.1 firm. Plaintiff No.2 partners of Plaintiff No.1 firm. Plaintiff No.2 partners of Plaintiff No.1 firm. Plaintiff No.2 claims to be a co-owner with others and accordingly claims to be a co-owner with others and accordingly claims to be a co-owner with others and accordingly claims title in respect of the suit premises in which claims title in respect of the suit premises in which claims title in respect of the suit premises in which the business of Plaintiff No.1 is run. The Defendants the business of Plaintiff No.1 is run. The Defendants the business of Plaintiff No.1 is run. The Defendants are the heirs of the deceased partner of Plaintiffs 2 are the heirs of the deceased partner of Plaintiffs 2 are the heirs of the deceased partner of Plaintiffs 2 and 3 who expired on 26th August 2002. and 3 who expired on 26th August 2002. and 3 who expired on 26th August 2002. 2. Plaintiffs 2 and 3 and the father of the 2. Plaintiffs 2 and 3 and the father of the 2. Plaintiffs 2 and 3 and the father of the Defendants (the deceased) entered into several Defendants (the deceased) entered into several Defendants (the deceased) entered into several partnership deeds from time to time. The first of partnership deeds from time to time. The first of partnership deeds from time to time. The first of such partnership deeds was executed on 1st July 1970. such partnership deeds was executed on 1st July 1970. such partnership deeds was executed on 1st July 1970. Another partnership deed came to be executed on 15th Another partnership deed came to be executed on 15th Another partnership deed came to be executed on 15th March 1975. The last partnership deed between the March 1975. The last partnership deed between the March 1975. The last partnership deed between the Plaintiffs 2 and 3 and the deceased was executed on Plaintiffs 2 and 3 and the deceased was executed on Plaintiffs 2 and 3 and the deceased was executed on 2 10th July 1992. The said partnership deed is annexed 10th July 1992. The said partnership deed is annexed 10th July 1992. The said partnership deed is annexed at Exhibit-A to the plaint. Under the said deed of at Exhibit-A to the plaint. Under the said deed of at Exhibit-A to the plaint. Under the said deed of partnership the parties were to conduct the business partnership the parties were to conduct the business partnership the parties were to conduct the business of Plaintiff No.1. Plaintiffs 2 and 3 together had of Plaintiff No.1. Plaintiffs 2 and 3 together had of Plaintiff No.1. Plaintiffs 2 and 3 together had 88% share in the profits and losses. The deceased had 88% share in the profits and losses. The deceased had 88% share in the profits and losses. The deceased had 12% share. Under clause 15 of the said deed of 12% share. Under clause 15 of the said deed of 12% share. Under clause 15 of the said deed of partnership the firm was to continue after the death partnership the firm was to continue after the death partnership the firm was to continue after the death of any partner with or without taking the heir or of any partner with or without taking the heir or of any partner with or without taking the heir or heirs of the deceased partner as their partner. The heirs of the deceased partner as their partner. The heirs of the deceased partner as their partner. The deceased having expired Plaintiffs 2 and 3 have chosen deceased having expired Plaintiffs 2 and 3 have chosen deceased having expired Plaintiffs 2 and 3 have chosen not to take the Defendants who are heirs of the not to take the Defendants who are heirs of the not to take the Defendants who are heirs of the deceased as partner to the business. deceased as partner to the business. deceased as partner to the business. 3. Implicit in the said clause is the fact that 3. Implicit in the said clause is the fact that 3. Implicit in the said clause is the fact that if the heirs of the deceased partner are not taken in if the heirs of the deceased partner are not taken in if the heirs of the deceased partner are not taken in partnership the share of the deceased in the profits partnership the share of the deceased in the profits partnership the share of the deceased in the profits or losses as well as in the assets of the firm would or losses as well as in the assets of the firm would or losses as well as in the assets of the firm would have to be paid to them. The Defendants have not have to be paid to them. The Defendants have not have to be paid to them. The Defendants have not claimed any such share and Plaintiffs 2 and 3 have not claimed any such share and Plaintiffs 2 and 3 have not claimed any such share and Plaintiffs 2 and 3 have not offered any such share to the extent of 12% in the offered any such share to the extent of 12% in the offered any such share to the extent of 12% in the profit or losses or in the assets of the firm. profit or losses or in the assets of the firm. profit or losses or in the assets of the firm. 4. The said deed of partnership recites that an 4. The said deed of partnership recites that an 4. The said deed of partnership recites that an agreement for conducting was earlier entered into agreement for conducting was earlier entered into agreement for conducting was earlier entered into prior to 31st March 1992 which came to an end on the prior to 31st March 1992 which came to an end on the prior to 31st March 1992 which came to an end on the eve of 31st March 1992. The Defendants have produced eve of 31st March 1992. The Defendants have produced eve of 31st March 1992. The Defendants have produced, and the Plaintiffs do not dispute, that conducting and the Plaintiffs do not dispute, that conducting and the Plaintiffs do not dispute, that conducting agreement. It is an agreement for conducting the agreement. It is an agreement for conducting the agreement. It is an agreement for conducting the business of running a restaurant dated 15th March 1975 business of running a restaurant dated 15th March 1975 business of running a restaurant dated 15th March 1975 3 entered into between Plaintiff Nos.2 and 3 and the entered into between Plaintiff Nos.2 and 3 and the entered into between Plaintiff Nos.2 and 3 and the deceased under which the deceased was to conduct the deceased under which the deceased was to conduct the deceased under which the deceased was to conduct the business. Under the said conducting agreement the business. Under the said conducting agreement the business. Under the said conducting agreement the deceased was to receive initially 25% of the profits. deceased was to receive initially 25% of the profits. deceased was to receive initially 25% of the profits. In view of the earlier partnership deeds between the In view of the earlier partnership deeds between the In view of the earlier partnership deeds between the parties the share of profits or losses would be parties the share of profits or losses would be parties the share of profits or losses would be determined after considering and paying off the 25% determined after considering and paying off the 25% determined after considering and paying off the 25% agreed profits to the deceased as the conductor. agreed profits to the deceased as the conductor. agreed profits to the deceased as the conductor. 5. It is the Defendants’ case that they actually 5. It is the Defendants’ case that they actually 5. It is the Defendants’ case that they actually conducted the business and/or together with their conducted the business and/or together with their conducted the business and/or together with their father and have continued to do so until the filing of father and have continued to do so until the filing of father and have continued to do so until the filing of the suit. It is the Plaintiffs’ case that the the suit. It is the Plaintiffs’ case that the the suit. It is the Plaintiffs’ case that the conducting agreement dated 15th March 1975 came to an conducting agreement dated 15th March 1975 came to an conducting agreement dated 15th March 1975 came to an end on the eve of 31st March 1992. About 4 months end on the eve of 31st March 1992. About 4 months end on the eve of 31st March 1992. About 4 months thereafter the deed of partnership Exhibit-A to the thereafter the deed of partnership Exhibit-A to the thereafter the deed of partnership Exhibit-A to the plaint came to be executed. plaint came to be executed. plaint came to be executed. 6. Consequently the Plaintiffs claim that the 6. Consequently the Plaintiffs claim that the 6. Consequently the Plaintiffs claim that the Defendants discontinued to be in any actual possession Defendants discontinued to be in any actual possession Defendants discontinued to be in any actual possession as conductor or as sons of the conductor under the as conductor or as sons of the conductor under the as conductor or as sons of the conductor under the said conducting agreement. They claim that the said conducting agreement. They claim that the said conducting agreement. They claim that the partnership firm of Plaintiff No.1 itself was carrying partnership firm of Plaintiff No.1 itself was carrying partnership firm of Plaintiff No.1 itself was carrying out its business of running the restaurant from 31st out its business of running the restaurant from 31st out its business of running the restaurant from 31st March, 1992. The Plaintiffs accordingly claim to be March, 1992. The Plaintiffs accordingly claim to be March, 1992. The Plaintiffs accordingly claim to be continuously in actual possession of the suit premises continuously in actual possession of the suit premises continuously in actual possession of the suit premises from that date. from that date. from that date. 7. Abandonment of any possession has to be 7. Abandonment of any possession has to be 7. Abandonment of any possession has to be 4 clearly shown. It cannot be presumed. The agreement clearly shown. It cannot be presumed. The agreement clearly shown. It cannot be presumed. The agreement of conducting is admitted. Hence, the fact that the of conducting is admitted. Hence, the fact that the of conducting is admitted. Hence, the fact that the deceased was the conductor is admitted. His deceased was the conductor is admitted. His deceased was the conductor is admitted. His possession in his capacity as a conductor is also possession in his capacity as a conductor is also possession in his capacity as a conductor is also therefore admitted. There is no evidence to show that therefore admitted. There is no evidence to show that therefore admitted. There is no evidence to show that his possession in the suit premises as conductor his possession in the suit premises as conductor his possession in the suit premises as conductor discontinued from 31st March 1992 or from 10th July, discontinued from 31st March 1992 or from 10th July, discontinued from 31st March 1992 or from 10th July, 1992, the date of execution of the deed of partnership 1992, the date of execution of the deed of partnership 1992, the date of execution of the deed of partnership Exhibit-A to the plaint. The Plaintiffs have sought Exhibit-A to the plaint. The Plaintiffs have sought Exhibit-A to the plaint. The Plaintiffs have sought to show that fact merely from second recital to the to show that fact merely from second recital to the to show that fact merely from second recital to the deed of partnership. deed of partnership. deed of partnership. 8. The Defendants have admitted that the change 8. The Defendants have admitted that the change 8. The Defendants have admitted that the change in the firm did take place in 1992. They contend that in the firm did take place in 1992. They contend that in the firm did take place in 1992. They contend that that was because of the change in the Income Tax Law. that was because of the change in the Income Tax Law. that was because of the change in the Income Tax Law. The income tax returns of the firm accordingly show a The income tax returns of the firm accordingly show a The income tax returns of the firm accordingly show a change. The returns of the year ended in 1991 show change. The returns of the year ended in 1991 show change. The returns of the year ended in 1991 show royalty paid to the three partners of the firm royalty paid to the three partners of the firm royalty paid to the three partners of the firm including the deceased. The Plaintiffs contend that including the deceased. The Plaintiffs contend that including the deceased. The Plaintiffs contend that the further returns do not show that fact. No the further returns do not show that fact. No the further returns do not show that fact. No constitutional change of the firm is shown. The constitutional change of the firm is shown. The constitutional change of the firm is shown. The partners remained the same, only the conducting partners remained the same, only the conducting partners remained the same, only the conducting agreement is shown to have been discontinued. The agreement is shown to have been discontinued. The agreement is shown to have been discontinued. The actual discontinuance of the business by the Conductor actual discontinuance of the business by the Conductor actual discontinuance of the business by the Conductor and/or his sons is not shown. and/or his sons is not shown. and/or his sons is not shown. 9. That, however, is not the intrinsic evidence 9. That, however, is not the intrinsic evidence 9. That, however, is not the intrinsic evidence of the actual possession. It does not show the of the actual possession. It does not show the of the actual possession. It does not show the discontinuance of the actual possession of the discontinuance of the actual possession of the discontinuance of the actual possession of the 5 deceased and/or the Defendants as his sons, or the deceased and/or the Defendants as his sons, or the deceased and/or the Defendants as his sons, or the commencement of actual possession by the partners of commencement of actual possession by the partners of commencement of actual possession by the partners of the firm including the deceased in another capacity. the firm including the deceased in another capacity. the firm including the deceased in another capacity. It does not show the shift in the actual carrying on It does not show the shift in the actual carrying on It does not show the shift in the actual carrying on of the business. of the business. of the business. 10. The Plaintiffs have sought to show that the 10. The Plaintiffs have sought to show that the 10. The Plaintiffs have sought to show that the Defendants were only employees of the firm. They have Defendants were only employees of the firm. They have Defendants were only employees of the firm. They have relied upon Form No.23 of the Employees Provident Fund relied upon Form No.23 of the Employees Provident Fund relied upon Form No.23 of the Employees Provident Fund Scheme 1952 showing Provident Fund amount paid to Scheme 1952 showing Provident Fund amount paid to Scheme 1952 showing Provident Fund amount paid to Defendants 1 and 2 in the financial year 2000-2001. Defendants 1 and 2 in the financial year 2000-2001. Defendants 1 and 2 in the financial year 2000-2001. The Defendants do not dispute this position. They The Defendants do not dispute this position. They The Defendants do not dispute this position. They claim to be not only conductors claiming 25% of the claim to be not only conductors claiming 25% of the claim to be not only conductors claiming 25% of the initial profits of the business but also the Employees initial profits of the business but also the Employees initial profits of the business but also the Employees of the firm and members of the Employees Provident of the firm and members of the Employees Provident of the firm and members of the Employees Provident Fund Scheme and having been paid provident fund. Fund Scheme and having been paid provident fund. Fund Scheme and having been paid provident fund. 11. The Plaintiffs have relied upon the written 11. The Plaintiffs have relied upon the written 11. The Plaintiffs have relied upon the written complaint made by the deceased against the Defendants, complaint made by the deceased against the Defendants, complaint made by the deceased against the Defendants, his own sons, showing certain acts of mischief by the his own sons, showing certain acts of mischief by the his own sons, showing certain acts of mischief by the Defendants as Exhibit-C to the plaint. The Defendants Defendants as Exhibit-C to the plaint. The Defendants Defendants as Exhibit-C to the plaint. The Defendants are referred to as the servants of the firm therein. are referred to as the servants of the firm therein. are referred to as the servants of the firm therein. The Plaintiffs therefore, claim that the Defendants The Plaintiffs therefore, claim that the Defendants The Plaintiffs therefore, claim that the Defendants cannot claim to be in actual possession of the suit cannot claim to be in actual possession of the suit cannot claim to be in actual possession of the suit premises as conductors. premises as conductors. premises as conductors. 12. The complaint itself shows that the Defendants 12. The complaint itself shows that the Defendants 12. The complaint itself shows that the Defendants sought to carry on certain business and created sought to carry on certain business and created sought to carry on certain business and created mischief thereby. The Defendants as the sons of the mischief thereby. The Defendants as the sons of the mischief thereby. The Defendants as the sons of the 6 deceased came to be in charge of carrying on the deceased came to be in charge of carrying on the deceased came to be in charge of carrying on the business. The Defendants have thus sought to show business. The Defendants have thus sought to show business. The Defendants have thus sought to show actual possession in the suit premises, their position actual possession in the suit premises, their position actual possession in the suit premises, their position being shown also as employees of the firm being shown also as employees of the firm being shown also as employees of the firm notwithstanding. notwithstanding. notwithstanding. 13. The Plaintiffs claim to have closed their 13. The Plaintiffs claim to have closed their 13. The Plaintiffs claim to have closed their business on 2nd May 2003. The averment in para 4 of business on 2nd May 2003. The averment in para 4 of business on 2nd May 2003. The averment in para 4 of the plaint shows that since the Plaintiffs closed down the plaint shows that since the Plaintiffs closed down the plaint shows that since the Plaintiffs closed down their business, the Defendants are coming to restrain their business, the Defendants are coming to restrain their business, the Defendants are coming to restrain them and are creating trouble. Paragraph 4 further them and are creating trouble. Paragraph 4 further them and are creating trouble. Paragraph 4 further shows that the Defendants were only employees during shows that the Defendants were only employees during shows that the Defendants were only employees during the life time of the father and that they have no the life time of the father and that they have no the life time of the father and that they have no right under the partnership deed between Plaintiffs 2 right under the partnership deed between Plaintiffs 2 right under the partnership deed between Plaintiffs 2 and 3 and the deceased. and 3 and the deceased. and 3 and the deceased. 14. There appears to have been disputes between 14. There appears to have been disputes between 14. There appears to have been disputes between the parties pursuant to which a criminal complaint the parties pursuant to which a criminal complaint the parties pursuant to which a criminal complaint came to be lodged on 14th June 2003. Pursuant to the came to be lodged on 14th June 2003. Pursuant to the came to be lodged on 14th June 2003. Pursuant to the FIR dated 14th June 2003 certain statements were FIR dated 14th June 2003 certain statements were FIR dated 14th June 2003 certain statements were recorded by M.R. A.Marg Police station, Mumbai. The recorded by M.R. A.Marg Police station, Mumbai. The recorded by M.R. A.Marg Police station, Mumbai. The statement of Defendant No.2 shows that he was statement of Defendant No.2 shows that he was statement of Defendant No.2 shows that he was conducting the hotel business for the last 30 years conducting the hotel business for the last 30 years conducting the hotel business for the last 30 years and that it was the partnership business since 1975 and that it was the partnership business since 1975 and that it was the partnership business since 1975 having three partners being Plaintiffs 2 and 3 and his having three partners being Plaintiffs 2 and 3 and his having three partners being Plaintiffs 2 and 3 and his father and that after his father expired he along with father and that after his father expired he along with father and that after his father expired he along with his two brothers (who are defendants 1 and 3) ran and his two brothers (who are defendants 1 and 3) ran and his two brothers (who are defendants 1 and 3) ran and conducted the said business and that Plaintiffs 2 and conducted the said business and that Plaintiffs 2 and conducted the said business and that Plaintiffs 2 and 3 never attended the hotel. His statement further 3 never attended the hotel. His statement further 3 never attended the hotel. His statement further 7 shows that the profits were distributed between the shows that the profits were distributed between the shows that the profits were distributed between the partners after deducting 25% conducting charges of his partners after deducting 25% conducting charges of his partners after deducting 25% conducting charges of his father, the deceased. He claimed that his father’s father, the deceased. He claimed that his father’s father, the deceased. He claimed that his father’s due share was 37%