Mohd.Ramzan Magrey vs Taja and others

This revision petition has a chequrred history. Compendium of the facts leading upto its filing is as follows:

Ghulam Qadir Mir., respondent No. 1 herein, on 15101981, brought a suit for declaration and injunction against the petitioners and the

Manager Punjab National Bank, Amirakadal, alleging that he had on 1411977 entered into partnership with Noor Mohd Mir petitioner No. 1 and

on Ghulam Mohd Mir the predecessorininterest of petitioners Nos. 2 to 9 herein in respect of the suit shop for carrying on the business of cloth

and tailoring in the name and style ""Lassa Mir and Sons"". This partnership, according to him, was dissolved in the year 1980 during the life time of

Ghulam Mohammad Mir, who thereafter died on 2291981 and each partner also got his share of the assets of the partnership. Ever since its

dissolution, he was carrying on his business of cloth and tailoring in the shop to the exclusion of the petitioners under the same name style ""Lassa

Mir and Sons"", who were now trying to dispossess him from it without any right. He also claimed distribution of the amount deposited by petitioner

No. 1 in the Amirakadal branch of the Punjab National Bank the account whereof he had clandestinely opened in his individual name. In this

background, he claimed a decree for declaration to the effect that the partnership created by virtue of the partnership deed dated 1411977 stood

dissolved from the year 1980, or in any case, with effect from 2291981, on the death of Ghulam Mohd Mir, and a decree for injunction restraining

the petitioners from interfering with his possession in respect of the suit shop and from realizing the amount deposited by petitioner No. 1 in the

Bank.

Alongside, respondent No. 1 also made an application for temporary injunction, on which, the following order was passed by the trial court of

Munsiff, Sub Registrar, Srinagar on the same day:

Issue notice Meanwhile the nonapplicants 1 to 9 are restrained temporarily from interfering in the possession of the plaintiff over suit shop. Also

non applicant No. 10 is restrained from releasing the amount deposited under Actt. No : 8006F/L in the name of Noor Mohd in favour of

defendants 1 to 9 till further orders. Put up on 30101981.

The petitioners appeared in the court and filed their written statement on 31101981. The case set up by them was that the suit shop was

acquired by Lassa Mir, the father of petitioner No. 1. respondent No. 1 and Ghulam Mohd Mir, the predecessor ininterest of petitioners 2 to 9,

vide rent note dated 3rd Katik 1999 BK., who carried on his business of cloth and tailoring in it till his death in the year 1960 under the name and

style ""Lassa Mir and Sons"". After his death, the same business, the same name and style was carried in it by his three sons as a joint family

business, who eventually converted it into a regular partnership business with effect from 111977, by executing a partnership deed to that effect on

1411977. Rent of the suit shop used to be paid out of the partnership funds and even the income accruing to them therefrom was shown in the

incometax returns as partnership income. This state of affairs continued to exist not only till the death of Ghulam Mohammad Mir in Sept: 1981, but

even thereafter also till the suit actually came to be filed and the parties, namely, the petitioners and respondent No. 1 continued to occupy the suit

shop jointly. They also filed their written objections to the application for temporary injunction as also to the rule nisi issued by the court on

15101981, repeating the same pleas therein.

On 22101981, the petitioners made an application complaining that respondent No. 1 had on 21101981 broken the locks but by them on the

outer door of the shop, and had in their place put his own locks on it. They prayed that a Commissioner be appointed to go on spot, open the

shop and prepare an inventory of the goods lying in it. The court on the same day appointed one Mr. Abdul Rashid Keng Advocate, as

Commissioner to verify the position on the spot, seal the locks on the outer door of the shop, and make his report accordingly. The Commissioner

went on spot and found three locks on the outer door of the shop which he also sealed. He made a report accordingly, in which he also made a

mention of the fact that a few shopkeepers who had been produced before him by the petitioner had told him that on their advice three locks had

been put on the outer door of the shop by the parties i. e. one by respondent No. 1 and two by the petitioners but the two locks put by the

petitioners had on 2IlO19gl been forcibly broken by the sons of respondent No. 1, who had thereafter put their place. This report was submitted

by him on 23121981.

Before disposing of the respondent's application for interim relief, the trial court on 16111981, appointed the same Mr. Abdul Rashid Keng

Advocate as a Commissioner to go on spot, 0pen the shop and its almirahs and prepare an inventory of the goods lying therein, specifically stating

in his report as to who out of the parties had provided them the key of the outer door of the shop as also of the almirahs inside it. This order was

made by the trial court on an application made by the petitioner.

The Commissioner went on spot on the following day and submitted his report on 19111981. In it, he stated that whereas respondent No. 1

had provided him the key of the outer door of the shop which stood sealed before it was opened, petitioner No. 1 had provided him the keys of

two almirahs in the shop which contained goods He further mentioned that the parties had stated before him that they had dissolved the partnership

by mutual consent and had kept in the shop the goods which had fallen to their respective shares in separate almirahs and racks.

After this report was received, the trial court heard arguments on the application for interim relief of temporary injunction. It held that the

partnership had not been dissolved either by mutual agreement of the parties or by giving an oral notice of his intention to dissolve it by respondent

No. 1, but it stood dissolved by operation of law on the death of one of its partners, namely, Ghulam Mohammad Mir on 2291981. The trial court

also found in favour of respondent No. 1 a prima facie case of his exclusive possession over the suit shop on the basis of the Commissioner's

report that the parties had admitted before him to have dissolved the partnership by mutual agreement, coupled with the fact that the two rent notes

in respect of the suit shop executed in the years 1946 and 1952, had been executed by respondent No. 1 in his personal name in favour of the

landlord of the shop. It did not attach any weight to the receipt evidencing payment of rent and electric charges out of the partnership funds, which

is its opinion are not proximate in time to have any bearing on the state of affairs existing on the date of the suit, and making the injunction absolute,

it interdieted the petitioners from interfering with the respondent's possession over the suit shop till the final disposal of the suit. Besides restraining

petitioner No. 1 and respondent No. 2 from operating the bank account till the disposal of the suit it also authorised respondent No. 1 to remove

the seals which had been put on the locks of the outer door of the shop by the Commissioner pursuant"" to court order and permitted him to take its

possession by its order dated 23111981.

The petitioners obviously not being satisfied with this order, challenged it in appeal in the court of Sub Judge, CJM, Srinagar. During the

pendency of the appeal, the petitioners again made an application for the appointment of a Commissioner to complete the inventory of the goods

lying in the shop. The lower appellate court again appointed the same Mr. Abdul Rasbid Keng Advocate as a Commissioner, who went on spot,

prepared a complete inventory and submitted two reports to the court on ) 9121981 and 24121981 accordingly. Here also, the petitioners met

with the same fate and their appeal was dismissed by the lower appellate court. It held respondent No. 1 to be in prima facie exclusive possession

of the suit shop on the basis of the latest rent note of the year 2009 Bk. which the respondent had executed in his own name in favour of the

landlord of shop. It further held that on the basis of the partnership deed dated 1411977, which did not at all speak of the suit shop in which the

business was to be carried on, its tenancy rights could not have been included in the assets of the partnership. While not giving much weight to the

Commissioner's report, it also declined to attach any importance to the rent receipts which, according to it, either did not disclose the source from

which the rent was paid, or the same pertained to a period during which the partnership pursuant to the deed dated 1411977 was still subsisting. It

further found that the account opened by petitioner No. 1 in the Bank could prima facie be said to be the account of the dissolved firm and

dismissed the appeal upholding the order of the trial court in its entirety by its order dated 111982. It is this order which has been assailed in this

revision petition which came to be filed on 2511982

This revision petition was admitted by the High Court and operation of the impugned order was stayed by its order dated 1621982 which was

runs thus:

Admit Issue notice. Send for the record. Meanwhile operation of the impugned order shall remain stayed"".

On 1921982, however, an application for contempt was moved against respondent No. 1 by petitioner No. 1 that the former had refused to

obey the order and had even used unparliamentary language against the court when the order was read over to him. This is Contempt (Civil)

petition No. 2/82. On this, the High Court issued a notice to respondent No, 1 and simultaneously ordered Senior Superintendent of Police,

Srinagar, to give necessary protection to petitioner No. 1 in attending to his business in the shop.

On 2121982, respondent No. 1 too made application being CMP No. 10/82 that in the garb of the order passed by the court on 1621982,

the petitioners had taken law into their own hands and had given him a merciless beating. He, therefore prayed that due weight be given to the

concurrent findings of fact recorded by the two courts below to the effect that he was in exclusive possession of the suit shop, and status quo be

ordered to be maintained on the spot, to enable him to do his business in the shop to the exclusion of the petitioner. On 1631982 the court relying

upon two earlier decisions of this court, refused to hear respondent No. 1 in the revision petition, till he purged himself of the contempt. A reminder

was directed to be sent to the Senior Superintendent of Police, Srinagar, to file the report of the officer, whom he had deputed to carry out the

order of the court dated 1821982, passed in the contempt petition. Soon thereafter, report of S. H. O. Kothi Bagh, was received by the court

which stated that the shop had been locked by respondent No. 1. An identical order in CMP No. 19 and Contempt petition No. 2 was passed by

the court on 2431982 interdicting both the parties from conducting their business in the shop till the contempt petition was finally disposed of. S. H.

O. KothiBagh was further directed to put a lock on the outer door of the shop.

Both these orders dated 1631952 and 2431982 were challenged by respondent No. 1 in a Letters Patent Appeal being No. 7/82. This appeal

was admitted by a Division Bench on 3031982 and operation of these orders was partly stayed by it. The Bench further directed that in case the

police had actually locked the shop, the same may be removed by the party, who was in its possession on the date the revision petition came to be

filed and that party may continue to remain in its possession till the final disposal of the Letters Patent Appeal.

An appeal, being Civil Appeal No 2074/82 from this order dated 3031982 was taken by the petitioners to the Supreme Court and the

following order was passed by it on 1661982 in the application for exparte stay:

Operation of the order dated 3031982 of the Jammu and Kashmir High Court in Letters Patent Appeal No. 7/82 be stayed pending notice.

Respondent No. 1 appeared before the Supreme Court and made an application for vacating the aforesaid stay order. Their Lordships

disposed of this application in accordance with the agreement of the parties that the main revision petition shall be heard and disposed of by the

High Court as expeditiously as possible, to which pendency of the contempt application shall be no bar. This order was passed by the Supreme

Court on 381982 and it is in compliance with this order that arguments in this revision petition were heard

Both the courts below, there can be no manner of doubt, focused their attention on the question as to who out of the parties was In exclusive

possession of the suit shop on the date of the in stitution of the suit. Both of them concurrently found that respondent No. 1 was in such possession.

This court in exercise of its revisional power cannot interfere with a finding of fact, unless the same is based upon no evidence or is otherwise

perverse, for, its power to interfere is confined to the grounds mentioned in Sec. 115 of the Civil Pr. Code, which clearly does not include the

ground of appreciation of evidence. So long as there is some evidence to support the finding of the lower court, the High Court will not interfere

with it in its revisional jurisdiction merely on the ground that the evidence is either insufficient to support the finding, or that it comes to a different

conclusion from the one reached by the lower court on its own appraisal of the same evidence. In none of the two eases can it be said that the

finding is based upon no evidence or that the same is otherwise perverse. Perversity connotes a virtual impossibility on the part of a reasonable

person to arrive at the conclusion on the basis of the evidence produced.

The courts below have based their findings on the documents produced by each party from time to time without any objection to their

production being raised by the opposite party. Some of these documents e. g. the original rent note executed by Lassa Mir, their

predecessorininterest, the deed of partnership dated 1411970 and the receipts evidencing payment of rent and electric charges m respect of the

suit shop, may prima facie tend to show that the parties were at one time carrying on their partnership business of cloth and tailoring in the shop.

But both the courts have either explained these documents, or have otherwise declined to give much weight to them in the peculiar facts and

circumstances of the case. They have prima facie disbelieved the plea of the petitioners that the parties were in joint possession of the shop even on

the date of the suit, on the ground, that the parties having entered into partnership with effect from 111970, as evidenced by the partnership deed

dated 1411970, this partnership stood dissolved with effect from 2291981 in terms of Section 42 (c) of the partnership Act, as a consequence of

the death of one of its partners, namely Ghulam Mohammad Mir, and there being no mention of the tenancy rights qua the shop in the aforesaid

deed dated 1411970, rather the last two rent notes in respect to it having been executed by respondent No. 1 in his individual name, the case set

up by him that on the date the suit came to be filed, he was in exclusive possession of the shop, stood prima facie proved. Both the courts declined

to give much weight to the rent receipts showing payment of electric charges in respect of the shop, and Form C issued under the Jammu &

Kashmir Shops Establishment Act which, according to them, could not be of much help to the petitioners, as they related lo the period during

which the partnership between the parties was admittedly subsisting. They no doubt rejected the case of the respondent that the partnership was

dissolved by mutual agreement of the parties in the year 1980, but at the same time held that it stood dissolved by operation of law on the death of

one of its partners on 2291981. As the receipts showed payment of rent and electric charges from 1966 till May, 1981 and the certificate of

registration under the Jammu and Kashmir Shops Establishment Act was also issued on 12121970 when the partnership was still subsisting they

had little bearing on what could have happened after 2291981. The trial court also placed reliance upon the Commissioner's report containing the

statement that the petitioners had admitted before him that the parties had dissolved the partnership by mutual agreement and had kept the goods

that had fallen to their respective shares in separate almirahs and racks even though in the same shop. It is, therefore, manifest that the courts have

found the respondent's case prima facie established sifting the entire evidence on the record. It is not a case of no evidence, and nor can their

findings be said to be perverse, even assuming, though not granting, that the weight of evidence is more in favour of the petitioner's case than that of

the respondent's case Mr. Tickoo's contention that once the case set up by respondent No. 1 that the partnership was dissolved by the parties by

mutual consent in the year 1980 having been disbelieved by the lower court, they could note have still held that it stood dissolved on 2991981, is

wholly untenable. Neither the inference of the dissolution of partnership on 2291981 in the absence of a fresh agreement of partnership between

the parties could be avoided, and nor was respondent No. 1 estopped from setting up an alternative case of its dissolution on the death of one of

its partners.

Relying upon two decisions of this court viz Ganpat Rai and another Vs. Abnash Chander and another, 1973 KLJ 1, and M/s Amar Nath and

others vs. Smt. Mohman wanti, 1973 K. L. J. 251 the learned counsel next contended that the parties having carried on their partnership business

from the year 1966 till at least the death of one of its partners on 2291981 in the suit shop itself, and the rent of the shop also having been paid out

of the funds of the partnership during this period, an inference could have been easily drawn that its tenancy rights also formed part of the

partnership assets. Here also, Mr. Tickoo's argument is more attractive than substantial. In Ganpat Rai's case (Supra) the deed of partnership itself

provided that tenancy rights qua the shop in which the partnership business would be conducted, would vest jointly in all the partners. It was a case

where the tenancy rights which at one time belonged to only one of the partners had been thrown by him into the partnership assets. In Amar

Nath's case (Supra), the rent note itself was executed by one of its partners for and on behalf of the firm. The present case is clearly distinguishable

on facts. In none of the rent notes it has been stated that the shop was acquired by respondent No. 1 for and on behalf of the firm Messrs Lassa

Mir and Sons, and nor has it been stipulated in these rent notes that the tenancy rights qua the shop would be the joint property of the partners. As

present, there is also nothing else to show that respondent No. 1 had at any time thrown his tenancy rights into the partnership assets. The

possibility that keeping his tenancy rights in tact, he merely permitted the partnership business to be done ' in the shop on the condition that its rent

and other charges would be paid out of the partnership fund till the partnership subsisted, cannot be completely ruled out at least at this stage.

What transpires after the evidence in the suit is led by the parties, may be a different matters. But, in the absence of such evidence, partnership

deed dated 1411970 and the two rent notes could have been relied upon by the courts below to find the prima facie case of his exclusive

possession in favour of the petitioner. It is well settled that property belonging exclusively to one of the partners does not vest in the partnership on

account of the mere fact that he allowed it to be used for the partnership business. It order that it may be vest, a further agreement on his part,

express or implied, that it shall become the property of the firm, has to be proved. In other words, he must be shown to have thrown it into the

partnership assests.

Lastly Mr. Tickoo contended that the scope for interference by the High Court u/s 115 of the State Code of Civil Procedure ( Act No. X of

1977) is much wider than the scope LJ/s 115 of the Central Code of Civil Procedure applicable to the rest of the country, inasmuch, as, whereas

Section 115 of the Central Code contains only three grounds for interference, Section 115 of the State Code contains a fourth ground also viz.

where the subordinate court appears to have caused failure of justice. For this, the learned counsel also relied upon two Single Bench decisions of

this court viz: Lakshmi Dayal Vs. Smt. Pushpa Devi AIR 1958 J&K 27 and Rrishen Lal Vs. S. Pal Singh and another, AIR 1968 J&K 32. True,

Cl (d) makes the scope of interference by this court wider than the scope of interference by other High Courts in the country, still this Clause

cannot be stretched so for as to empower the High Court to come to a contrary conclusion on its own appreciation of the same evidence. Under

the Central Court the High Court can interfere either on the ground of error of jurisdiction ( Clauses (a) and (b) or on the ground that the

subordinate court has acted illegally or with material irregularity (Cl. (c)). Strictly speaking, the High Court in its revisional jurisdiction shall have no

power to correct under section 115 of the Central Code any error of law, which is neither an error of jurisdiction and nor an error of procedure.

Failure of justice due to any error of law, which is neither an error of jurisdiction and nor an error of procedure, will be therefore, no ground for

interference by the High Court U/s 115 of the Central Code, Clause (d) appears to have been added to Sec. 115 of the State Code only to

empower it to interfere also on the ground of any other error of law, committed by a court subordinate to it, which is neither an error of jurisdiction

and nor an error of procedure. It cannot be interpreted so liberally as to make it all embracing. Consequently this court in its revisional jurisdiction

cannot interfere with a finding of fact, which is based upon some evidence and is not perverse. Such a finding of fact, even if erroneous will not be

covered by Cl. (D). The learned Judges in the aforesaid two cases have no doubt said that the revisional powers of the High Court in the State of

Jammu & Kashmir are much wider as compared to similar powers on other High Court in the country, but they have not clearly demarcated the

boundaries of this amplitude.

Presently, there can be no escape from the conclusion that the partnership stood dissolved with the death of its partner Ghulam Mohd. Mir. It

is also abundantly clear that the parties have lost mutual trust and confidence and cannot carry on their business jointly any longer. The shop has

been found to be under the tenancy and occupation of respondent No. 1 alone. The balance of convenience under these circumstances must also

be therefore, in favour of granting the injunction prayed for. Further more, the loss which the petitioners may be ultimately found to have suffered

due to the continuance of injunction is capable of being calculated in terms of money, as such, there can be no apprehension of the petitioners

suffering from an irreparable loss due to its continuance. No objection was, however, pressed in regard to its continuance in so far as the operation

of the Bank account is concerned. Viewed thus, the orders passed by the courts below warrant no interference, which must be upheld in their

entirety.

In the result, the revision petition fails, which is dismissed accordingly, but in the circumstances of the case, without any order as to costs. The

stay order issued by this court shall stand vacated. Respondent No. 1 shall be at liberty to open the locks put by S.H.O. Kothi Bagh, on the outer

door of the shop pursuant to the order passed by this court. He may do this business in it to the exclusion of the petitioners till the final disposal of

the suit.