SHANKARLAL LAXMINARAYAN RATHI Vs. GANGABISEN MANIKLAL SIKCHI
HIGH COURT OF BOMBAY
SHANKARLAL LAXMINARAYAN RATHI
GANGABISEN MANIKLAL SIKCHI
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(1.) (THIS reference to a Full Bench has been occasioned by a conflict of decisions of this Court in Channappa Girimalappa v. Bagalkot Bank, AIR 1942 Bom 338 and Rama Kallappa Pujari v. Saidappa Sidrama Pujari, AIR 1935 Bom 306 ). In both the cases the judgment is that of Sir John Beaumont, Chief Justice. The original question referred simply posed for out determination the conflict between these two decisions. In short which of them was right but after some preliminary discussion and with the consent of counsel for both the parties, we have reframed the question in order to bring out the real controversy between the parties in the litigation from which these two appeals have been filed. The question that we have now to determine is :-Is the plaintiff's suit maintainable having regard to the provisions of O. 2, R. 2 and O. 2, R. 4 of the Code of Civil Procedure ?
(2.) THE question arises upon the following facts : Gangabisan Sikchi was the owner of Kamal Theatre in Amravati town. He leased it out on 20-1-1945 to Shankarlal Rathi. The lease was for a period of ten year commencing from 20-1-1945 and is evinced by a registered rent note dated 6-1-1946 (Ex. P - 3 ). In 1949 there was a litigation between Gangabisen and Shankarlal. It was a suit (Civil Suit No. 40 - A of 1949) filed by Gangabisan for the ejectment of Shankarlal in the Court of the Second Additional District Judge, Amravati (Mr. B. V. Patwardhan ). The suit ended in a compromise and by the compromise decree the agreement of lease dated 20-1-1945 was modified in two respects :-
1. Instead of the amount of Rs. 525/- per month the rent originally fixed, the lessee agreed to pay Rs. 741/- per month. (2) By the agreement a second lessee was introduced namely, Saroj Screens (Pvt.) Ltd. This company was recognised along with Shankarlal as a co - lessee. In all other respects the agreement dated 6-1-1946 continued to operate.
(3.) IN 1955 Gangabisan filed a suit for declaration of his title only (Civil Suit No. 26 - A of 1955) but later on decided to withdraw it and an order of withdrawal was passed on 28-8-1956 by Mr. B. B. Shrivastava, First Civil Judge, Class II, Amravati. No permission to bring another suit was asked for or granted.;
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