Dismissed

Navin Kumar Kejriwal v. Govind Prasad Kejriwal

Gauhati HC9 Jan 2018CRP(I/O)/4/2018

Case brief

AI extract

What is this about?

The High Court was asked to interfere under Article 227 with an order dismissing a petition for judicial notice of a trade licence renewal notice while also dismissing a rejoinder failure. The court held that despite the evidence pointing to possession, interference was not a fit case and the petition was dismissed.

What did the court decide?

Prayer for judicial notice of the notice and opportunity to adduce evidence was dismissed along with the petition under Order 39.

Navin Kumar Kejriwal Vs Govind Prasad Kejriwal — Property and Title | Gauhati HC (2018)

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GAHC010001032018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O)/4/2018

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NAVIN KUMAR KEJRIWAL S/O- SRI GOVIND PRASAD KEJRIWAL, A PERMANENT R/O- NURSING DAS ROAD, CHIRWAPATTY, P.O, P.S AND DISTTINSUKIA, ASSAM, AND PRESENTLY R/OM/S MEHUL ASSOCIATES, RZ/84, MAIN DABRI PALAM ROAD, OPP MCB COMMUNITY CENTRE, NEW DELHI-110045

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VERSUS

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GOVIND PRASAD KEJRIWAL S/O- LATE GOWARDHAN DAS KEJRIWAL, R/O- NURSING DAS ROAD, CHIRWAPATTY, P.S AND DIST- TINSUKIA, ASSAM

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2:ANAND KUMAR SUREK

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Advocate for the Petitioner : MR G N SAHEWALLA

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Advocate for the Respondent :

ORDER

Date : 09-01-2018

BEFORE

HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI

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Heard Mr. G.N. Sahewalla, learned senior counsel for the petitioner.

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The petitioner is residing presently at New Delhi. The petitioner filed a suit which is numbered as Title Suit No.24/2017 in the Court of the learned Munsiff No.1 at Tinsukia, Assam, praying for – (i) a declaration that the plaintiff is a partner in the said business running under the name and style of M/s Engineering Chamber in the suit premises along

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with the defendant No.1; (ii) for a declaration that the plaintiff is a co-tenant along with the defendant No.1 in respect of the suit premises under the defendant No.2 as being the partner of the said business; (iii) for a declaration that the plaintiff has equal right, title and interest over the said business along with the defendant No.1 as being the equal partner and as a cotenant of the suit premises along with the defendant No.1; (iv) for permanent injunction restraining the defendant No.1 or any person acting under or through him to shut down the said business or to hand over and deliver khass possession of the suit premises to any person/s including the defendant No.2 without prior written consent and approval of the plaintiff or doing any act prejudicial to the interest of the plaintiff in respect of the same; and (v) for temporary injunction as prayed for in terms of clause (iv), etc.

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A petition under Order 39 Rules 1 & 2 read with Section 151 CPC, which was registered as Misc. (J) Case No.28/2017, was also filed praying for injunction restraining the opposite party No.1 (defendant No.1) or any person acting under or through him to shut down the said business or to hand over or deliver khas possession of the suit premises or to any person/s including the defendant No.2 without prior written consent and approval of the plaintiff or doing any act prejudicial to the interest of the plaintiff in respect of the same.

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Averments are made in the plaint that the petitioner came to learn on 16.06.2017 that the defendant No.1 had started vacating the shop premises and decided to hand over the vacant and khas possession of the suit premises to the defendant No.2 by closing down the business. It is alleged that his father in collusion with the defendant No.2 hatched a conspiracy for greed of money to shut down the business in the suit premises.

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In the written statement filed by the defendant No.1, it is averred that on 16.05.2017, the defendant No.1 had handed over vacant possession of the shop premises to the defendant No.2 by surrendering the tenancy in respect thereof. The defendant No.1 also stated that plaintiff had, on the basis of a family settlement dated 25.04.2016, retired from the partnership after receiving his due share. The defendant No.2 in his written statement had also stated that vacant possession of the suit premises was handed over to him by the defendant No.1 on 16.05.2017 and that there is no business of the defendant No.1 over the suit premises.

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The schedule of the suit premises, as indicated in the plaint, is as follows:-

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“An RCC shop premises under the name and style of M/s Engineering Chamber in Ground floor the HDFC Bank building, situated at Nursing Das Road, Chirwapatty, Tinsukia,

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Assam and bounded as:

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North : M/s Supreme Fittings South : M/s Maruti Point East : Nursing Das Road, Chirwapatty West : Property of Sri Jugal Sureka”

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The learned counsel for the petitioner filed a Petition No.3845/2017 on 18.12.2017 in Misc. (J) Case No.28/2017 stating that a notice under Section 106 of the Assam Municipal Act, 1956 being No.TMB/LO/8/839 dated 30.06.2017 for renewal of the trade licence of the partnership firm was served upon the defendant No.1 at the place of business, thereby establishing the fact that the suit property was under the occupation and possession of the defendant No.1 and that the same belies the false claim made by the defendant No.1 that he had surrendered the suit premises to the defendant No.2 on 16.05.2017. Accordingly, prayer was made in the said petition to take judicial notice of the notice dated 30.06.2017 and to allow the petitioner and other witnesses of the Tinsukia Municipal Board to adduce evidence. The petition was verified by the counsel and he had also sworn the affidavit in support of the said petition.

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It appears that the aforesaid petition was filed on the date fixed for hearing on the injunction matter. The learned Court below, by the impugned order dated 18.12.2017, rejected the petition. It was held that there was no foundation for the petition filed as the petitioner had not controverted by filing any rejoinder to the written objection filed in Misc. (J) Case No.28/2017.

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Mr. Sahewalla has submitted that filing of rejoinder is not a matter of right and, therefore, the learned trial Court committed manifest error of law in rejecting the said petition. He submits that if evidence is allowed to be led on the basis of the notice issued under Section 106 of the Assam Municipal Act, 1956, the falsehood of the claim made by the defendants would come to the core and, therefore, an opportunity is required to be granted to the petitioner to adduce evidence.

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The tenanted premises is located, as indicated in the schedule to the plaint, at HDFC building, which is at Nursing Das Road, Chirwapatty, Tinsukia. The residential address of the defendant No.1, as indicated in the suit and also in this petition is also at Nursing Das Road, Chirwapatty, Tinsukia. The residence and business establishment thus are/were in

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Nursing Das Road, Chirwapatty. In the notice under Section 106 of the Assam Municipal Act, 1956, the address portion does not contain “HDFC building” and the address is given simply as Nursing Das Road, Chirwapatty. In absence of any indication in the said notice referring to HDFC building, it cannot even be tentatively suggested that notice was served upon the defendant No.1 in the HDFC building. Mere reference to the defendant No.1 in the said notice as partner of M/s Engineering Chamber is a mere description of the identity of the defendant No.1 and nothing further. Therefore, although it may not have been correct for the learned trial Court to reject the petition on the ground that the petitioner did not file rejoinder affidavit, having regard to the aforesaid factual matrix, I am of the considered opinion that this is not a fit case for exercise of power under Article 227 of the Constitution of India to interfere with the order dated 18.12.2017 passed by the learned Munsiff No.1, Tinsukia, Assam in Misc. (J) Case No.28/2017 arising out of Title Suit No.24/2017. Resultantly, the petition is dismissed. No cost.

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JUDGE

Navin Kumar Kejriwal v. Govind Prasad Kejriwal

Case brief

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Navin Kumar Kejriwal v. Govind Prasad Kejriwal

Case brief

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