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2004 Supreme(Guj) 159
Gujarat High Court
Judgename :K.A.Puj
SOMNATH TRUST - Appellant
Versus
JAMNADAS MADHAVJI INTERNATIONAL LTD. - Respondent
C.A.560 of 2004
Decided On : 03/12/2004
Headnote:Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 39 Rules 1 & 2 - Ad-interim injunction - Restraining dispossession - Grant of - Validity - Contention that respondent has no right to file the suit is not acceptable in view of oral and documentary evidence that respondent is successor in interest of the original sub-lessee Jamnadas Madhavji and company - Also there is no evidence that appellant has taken possession of the disputed land and that land is in possession of the appellant - Court held that whole story of taking over possession by appellant is nothing but after thought - No illegality or impropriety committed by trial Court in passing impugned ad-interim injunction - Appeal having no force dismissed.
In light of the documents produced and pleadings made, this Court is of the prima facie view that the firm of M/s. Jamnadas Madhavji & Company was converted into the Company, namely, Jamnadas Madhavji International Limited. A certificate of Incorporation was issued by the Registrar of Companies on 28.08.1992. In the Memorandum of Association itself, it was made clear that the parties have been carrying on business under the name and style of M/s. Jamnadas Madhavji & Company under a Deed of Partnership and the said Partnership having been duly registered under the Provisions of Indian Partnership Act with the Registrar of Firms and the members of the said Partnership, for the sake of smooth and effective management of improvement have agreed to form a joint stock Company as defined under Sec. 566 of the Companies Act, 1956. It is also stated in Clause (1)(c) of Articles of Association that the Company shall undertake, pay, observe, satisfy, perform and fulfill the agreement and liabilities of the parties hereto or the firm of M/s. Jamnadas Madhavji & Company entered into or incurred in their separate or joint names or in the name of the firm in relation to the said business and assets brought in as aforesaid and shall indemnify them respectively from and against all actions, proceedings, damages, claims and demands in respects thereof. These clauses in the Memorandum of Association as well as Articles of Association, prima facie, leads to believe that by operation of law, the Company becomes the successor in interest of the firm and undertakes all its assets and liabilities which, inter alia, includes the Lease Agreement entered into between the firm of M/s. Jamnadas Madhavji & Company on the one hand as the appellant-Trust on the other hand.
[Para 17]
As far as the possession is concerned, the learned trial Judge has discussed at length and did not believe the possession of the appellant over the land in question. Even otherwise, notice dated 15.09.2003 issued by the appellant did not indicate that the possession was taken over by the appellant-Trust. The notice board which was placed on the disputed land talks of only the ownership and there was no reference with regard to possession. Even the Caveat application filed by the appellant - Trust before the trial Court on 17.09.2003, did not contain any averment with regard to the possession having been taken by the appellant-Trust. This Court is, therefore, in conformity with the view expressed by the trial Court that the whole story with regard to taking over possession is nothing but an afterthought.
[Para 18]
Such possession is not a valid and legal possession and it is to be considered as the possession of a trespasser even if such person may be the owner of the land.
[Para 19]
Considering the above facts and circumstances of the case and the authorities referred to hereinabove, Court is of the view that the learned trial Judge has not committed any error while granting the interim injunction against the appellant-Trust. The Court, therefore, is not inclined to interfere in the order passed by the learned trial Judge and the Appeal From Order is, therefore, dismissed.
[Para 20]
( 1 ) THIS Appeal From Order is filed by the appellant - Trust, namely, Somnath Trust against the order passed by the learned Civil Judge (S. D.), Veraval below an application Exh. 5 in Special Civil Suit No. 135 of 2003 whereby the present appellant - original defendant No. 1 was restrained from dispossessing the present respondent from the suit leased land and was also restrained from disturbing the possession in respect of the said land till the final disposal of the suit. The learned Trial Judge has also directed to remove the Notice Board installed on the boundary of the suit land within 30 days of the said order and directed the appellant to pass pursis to that effect and if the said Notice Board is not removed as directed within the period, the present appellant was permitted to remove the said notice board at the cost of the appellant.
( 2 ) IT is the case of the appellant that a Partnership Firm, namely, Jamnadas Madhavji and Company was granted by the appellant - Trust, Sub-lease of the land admeasuring about 8903 Sq. Mts. from Survey No. 1791 of Prabhaspatan, Veraval from 04. 11. 1977 from amongst various lands granted to the appellant Trust by the Govt. for 999 years. A Regd. Sub-lease Deed was executed on 14. 02. 1986 wherein various terms and conditions were set out. On 02. 06. 2003, the appellant Trust, after putting warning notice on the land and placing guard over it, had given notice to the Power of Attorney Holder of the sub-lessee Jamnadas Madhavji and Company, pointing out that the terms and conditions of the sub-lease were violated by the sub-lessee and called upon him to show cause as to why the sub-lease should not be terminated. The sub-lessee has given reply to the said notice on 09. 06. 2003 admitting the fact regarding non-payment of rent and also submitting that there could be no objection to the statement made in the warning notice and further requesting to remove the guard which was placed by the appellant - Trust.
( 3 ) IT is further stated that the appellant - Trust thereafter gave Regd. notice dated 15. 09. 2003 to the Power of Attorney Holder of the sub-lessee terminating the sub-lease and canceling it for breach of conditions of sub-lease and informed that sub-lessee has no right whatsoever on the said land. The sub-lessee, thereafter served a telegram dated 20. 09. 2003 in response to the notice issued by the appellant - Trust. A letter was issued by the appellant - Trust on 26. 09. 2003 and on 28. 09. 2003 wherein it was stated that the possession of the disputed land was with the appellant - Trust and no disturbance of any one would be allowed in the said land. Despite this fact, the present respondent has filed Special Civil Suit No. 135 of 2003 before the Court of Civil Judge (S. D.), Veraval and obtained the order of injunction against the appellant - Trust.
( 4 ) IT is this order dated 31. 12. 2003 which is under challenge in the present Appeal From order.
( 5 ) MR. S. M. Shah, learned advocate appearing for the appellant - Trust has raised several contentions challenging the impugned order. Firstly, he has submitted that the suit filed by the present respondent is not maintainable as the present respondent does not have any title so far as the disputed land is concerned. He has further submitted that there was no privity of contract between the appellant - Trust and the present respondent as the deed of sub-lease was not executed in favour of the present respondent. The sub-lease dated 11. 02. 1986 was between the appellant and the firm of M/s. Jamnadas Madhavji and Company and the name of the present respondent, namely, Jamnadas Madhavji International Limited did not figure anywhere in the said deed of sub-lease. Mr. Shah has taken the Court through various letters and documents produced before the Trial Court and pointed out that the present respondent has no right whatsoever to claim any relief before the Trial Court in the suit filed against the appellant - Trust. Mr
