:1: bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.52 OF 2010 Swaminath Ramdas Tiwari Age-yrs., Occu : Business, r/at Room No.24, Ground Floor, Siddheshwar Park, Sudarshan Nagar, Pimple Gurav, Pune – 27. ..Petitioner Vs. Mrs.Achintkaur Tejasingh, Age-95 yrs., Occu : Housewife, r/at 35/B, Dapodi, Pune – 411 012 Through her POA holder Shri tirathsingh Tejasingh, Age-75 yrs., Occu : Business, r/at 35B, Dapodi, Mumbai Pune Road, Pune – 411 012. ..Respondent Mr.S.S.Kanetkar for petitioner. Mr.J.S.Kini i/b. Suresh Dubey for respondent. CORAM :- V.C.DAGA,J. DATE : 22ND JANUARY,2010 JUDGMENT : 1. The present petition filed under Article 227 of the Constitution of India is directed against the order dated 19th December, 2009 passed by the District Judge-I, Pune dismissing the appeal holding it to be barred by limitation. :2: THE FACTS: 2. The facts giving rise to the present petition may be stated as under: 3. The respondent herein is the owner and Landlord of structure constructed on the portion of about 450’ on the plot of land bearing No.1173 admeasuring 72 x 66’ located at Dapodi, Pune. 4. The respondent let out the said premises to M/s.Bharat Wood Product, a proprietorship concern. The respondent filed a suit for eviction against the said tenant, a Proprietorship Concern owned by one Mr.Swaminath Ramdas Tiwari alleging demolition of the suit premises by the tenant without consent. Tenant has also constructed 3 to 4 additional rooms without consent of the Landlord. No permission or consent of Pune Municipal Corporation was taken. Construction of permanent nature in contravention of Section 13(1)(b) of the Bombay Rent Act was made. Consequently, suit for eviction and possession was filed by the respondent alleging number of infractions committed by tenant. The said suit was contested by the parties. The suit was decreed on all grounds in favour of respondent/original plaintiff-landlord by Judgment and Decree of 14th September, 2005 passed by the Judge, Small Causes Court, Pune. 5. It appears that the appeal bearing No.755 of 2005 was filed by one Jitendra Swaminath Tiwari (son of the applicant) representing to be the partner of M/s.Bharat Wood Products against respondent. In other words, said appeal was not file by the original defendant. When the said appeal was fixed for final hearing, the appellant remained absent. Hence, by an order dated 10th August, 2009, the appeal was dismissed for want of appearance of the appellant. :3: 6. An application for setting aside the aforesaid order with application for condonation of delay in filing the said application was moved by the original defendant, Mr.Swaminath Ramdas Tiwari, who had not filed an appeal though he was original defendant. As stated, the appeal was preferred by his son Jitendra Swaminath Tiwari claiming to be a partner of M/s.Bharat Wood Products. The said application for setting aside the order of dismissal of appeal-in-default was filed on 11th November, 2009, when the decree was sought to be executed. The cause of delay is stated to be the illness of the applicant contending that he was unable to move or travel, hence, he could not contact his Advocate. 7. On being noticed, the respondent appeared before the District Judge and resisted application by filing reply dated 30th November, 2009. The status of the respondent as Landlord, is not in dispute, so also the fact that premises were let out to M/s.Bharat Wood Product, a proprietorship concern is also not in dispute. The decree for eviction was passed, which was not challenged by the original defendant-proprietor of the firm Mr.Swaminath – present petitioner. It was challenged by his son styling himself as Partner of M/s.Bharat Wood Prdoucts, which came to be dismissed in default for non appearance as stated hereinabove on the date of final hearing. 8. The above application was opposed before the Learned District Judge contending that the appellant Jitendra Tiwari in Civil Appeal No.755 of 2005 was reported to be dead on 3rd August, 2007. He was not substituted either by legal heirs or by any other member of his family. This being so, the appeal had abated on or about 3rd November, 2007. The cause of delay shown in the application was denied. It was denied that the applicant was suffering from high blood pressure or diabetes or that he was bed-ridden or was unable to move and contact his Advocate. :4: 9. It was contended that he was not a party-appellant to the appeal nor his name was substituted as such he had no right to file application for setting aside the dismissal of appeal in default or for that purpose to seek condonation of delay in moving such application. In reply, it was asserted by the present petitioner that late Jitendra Tiwari claimed to be one of the partners of M/s.Bharat Wood Products. After his death, the applicant-present petitioner has a right to proceed with the appeal as another partner of the said firm. 10. With the aforesaid rival contentions, the application was heard by the learned District Judge, who was pleased to reject the application by detailed reasoned order holding that the applicant did not have locus-standi to file application for condonation of delay, since he was not a party to the appeal No. 755 of 2005 and in alternate no sufficient ground was made out for condonation of delay. 11. Being aggrieved by the aforesaid order, the applicant-petitioner has invoked the writ jurisdiction of this Court under Article 227 of the Constitution of India. CONSIDERATION 12. Having heard the petitioner in detailed, the petition is liable to be dismissed for more than one reason. Firstly; it is liable to be dismissed as non maintainable because the petitioner was not party to the appeal. Secondly; the appeal preferred against the judgment and decree dated 14th September, 2005 passed in Civil Suit No.846 of 93 by the Judge, Small Causes Court, Pune itself was not maintainable, since it was not filed by the original Judgment Debtor. Thirdly; the appellant Jitendra Tiwari (since deceased) had no interest in the lis and that at any rate no steps were taken to substitute the name of the deceased appellant. Lastly, it was liable to be dismissed for suppressing material facts and not approaching the Court with clean hands. :5: 13. The title of the suit filed against original defendant M/s.Bharat Wood Product through its proprietor S.R.Tiwari was as under: IN THE COURT OF JUDGE, SMALL CAUSES COURT, PUNE, AT PUNE (Presided over by Shri. B.R.Datir) Civil Suit No.846/1993 Smt.Achint Kaur Tejasingh Age about 79 yrs., Occu : Household, residing at 35/B, Dapodi, Pune – 12. ..Plaintiff Vs. M/s.Bharat Wood Product, Through Shri. S.R.Tiwari Age 60 yrs., Occu : Buinsess, R/o.35/B, Dapodi, Pune – 12. ..Defendant Suit for possession Whereas, the appeal was filed showing parties as : IN THE COURT OF THE HON’BLE DISTRICT JUDGE, PUNE, AT PUNE Civil Appeal No.755 of 2005 (In the matter of the judgment and the decree passed by the Hon’ble Judge, Small Causes Court, Pune in Civil Suit No.846/93 dt.14/09/2005 at Exh.94 and 95). M/s.Bharat Wood Product, A registered partnership firm and having its office at 35/2, Dapodi, Pune – 12. :6: Through its partner Mr. Jitendra Swaminath Tiwari Age 35 yrs., Occu : Buinsess, R/o.86/1/2, R-H, No.A/5, Sudarshan Nagar, Pimple Gurav, Pune – 411 027. ..Appellant Vs. Smt.Achint Kaur Tejasingh Age 92 yrs., Occu : Housewife, residing at 35/2, Dapodi, Pune – 12. ..Respondent 14. Perusal and comparison of the cause title in the suit with that of appeal would show that the original defendant was a Proprietory concern of S.R.Tiwari; whereas the appeal was preferred by M/s.Bharat Wood Products, said to be a registered partnership firm through its partner Jitendra Tiwari. The partnership firm was not at all concerned with the premises in question. It had no interest in the said litigation. In order to create third party interest in the litigation, a partnership deed said to be scribed on 19th April, 1999 is sought to be produced on record, wherein Swaminath Ramratan Tiwari (S.R.Tiwari) is shown to have entered into partnership firm with his son Jitendra Swaminath Tiwari. The name of the partnership firm is sought to be imited by making small change in the last word “Product” by showing it in plural as “Products”. Nowhere in the partnership deed it is shown that the tenancy rights were ever transferred to the partnership firm by the erstwhile proprietor of M/s.Bharat Wood Product Mr.S.R.Tiwari. In order to give it a colour of genuineness, an attempt is made to produce one photocopy of registration certificate showing registration of the firm with Registrar of Firms under Indian Partnership Act, wherein the name of the firm is shown as M/s.Bharat Wood Products, in which names four partners are reflected. The details of which are (1) Keshrimal S.Oswal (HUF) (2) Swaminath R.Tiwari (3) Lalchand K.Jain (4) Shivnarayan S.Tiwari. If one compares the deed of :7: partnership dated 19th April, 1999 produced on record with the registration certificate obtained from Registrar of Firms, the name of the firm is identical. However, the names of the partners differ though place of business of the firm in both the documents is shown as 35/2, Mumbai-Pune Road, Dapodi, Pune 411012. It is, thus, it is clear that both the firms are altogether different firms. One was established in the year 1977 with four partners carrying the name M/s.Bharat Wood Products and another partnership firm was formed under partnership deed dated 19th April, 1999. No proof of its registration is on record. Both these establishments are different. However, a picture was sought to be created in the Court that both these firms are one and the same and the partnership is registered one, otherwise, there was no reason to produce registration certificate showing four partners, which was completely unconnected with the newly constituted partnership in the year 1999. 15. Considered from another angle, the suit was filed in the year 1993, whereas the registered partnership was already in the field since it was formed on 19th November, 1977. The suit was against M/s.Bharat Wood Product and not M/s.Bharat Wood Products. Both these entities are altogether different. On being asked, learned Counsel for the petitioner admitted that the registered partnership was altogether different than the partnership formed on 19th April, 1999. On being further asked, if that be so, whether the partnership firm formed on 19th April, 1999 is a registered one. The Learned Counsel prayed ignorance for want of instructions. 16. From the above scenario, it is clear that, an attempt was made to create the interest of the partnership firm formed on 19th April, 1999 so as to claim tenancy rights in favour of the third party. The appeal was also preferred showing it as a partnership firm having its registered office at 35, Dapodi, Pune. Therefore, an attempt was not only to create third party interest in the property but to mis-guide the Court, is apparent on the face of record by producing unconnected document. :8: 17. Be that as it may, it is also required to be mentioned that the original suit was against a proprietorship concern and not against a partnership firm; whereas, the appeal was preferred by partnership firm. Upon the death of one of the partners, no steps were taken to substitute his name with the result, appeal stood automatically abated. No prayer for setting aside the abatement was made. Assuming it to be a technical fault, but the facts remain as to why corrective steps were not taken. No answer is coming forward. Abated appeal was sought to be revived the impugned proceedings. On the death of a partner, a partnership firm automatically comes to an end. Assuming that one can claim the interest of the partnership firm as a partner but that of a dissolved firm. 18. Admitted fact is that the partnership firm was not at all a tenant. It was not a party to the suit. Under these circumstances, one has to hold that the appeal was not tenable. The present applicant Mr.Swaminath did not approach either the Trial Court or this Court with clean hands and tried to play a game of hide-and-seek and tried to suppress true facts even from this Court. Incomplete partnership deed is filed on record. The annexures thereof are not produced. The certified copies obtained from the Registrar of Firms were just to mislead the Court. All these factual aspects lead me to refuse to exercise writ jurisdiction in favour of the petitioner besides holding that the impugned order is legal and proper. 19. Before I part with the order I must refer to one leading judgment of the apex Court in the case of S.P.Chengalvaraya S.P.Chengalvaraya Naidu v. v. Jagannath, AIR 1994 SC 853, Court observed as under:- "The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and :9: other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation." 20. Under the aforesaid facts and circumstances of the case I have no option but to dismiss the petition. Hence, the petition stands dismissed with costs quantified in the sum of Rs.25,000/- payable to the respondent. The amount of costs to be deposited in Trial Court for being paid to the respondent- Landlord. (V.C.DAGA,J.)