M/S. Soorajmall Nagarmall. Vs. Sri Pramod Kr. Shah. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] the appellant- university on march 1, 1996 issued an advertisement for filling up the posts of deputy registrar and assistant registrar by direct recruitment. the minimum qualification prescribed for appointment as assistant registrar was as under:-respondent no.1, who was an employee of the university, made applications both for the posts of deputy registrar and assistant registrar. respondents 4 and 5 were placed in the select list at ranks iv and v respectively. on the basis of the select list, prepared by the selection committee, respondent nos. 4 and 5 were appointed as assistant registrars. 5. the writ petition was opposed by the university. it was, accordingly, submitted that respondent no.1 was ineligible for appointment to the post of assistant registrar. the division bench found and held that respondent no.1 was not eligible to be considered for the post of deputy registrar and, hence, rejected his case in so far that post is concerned. coming, however, to the post of assistant registrar, the division bench took the view that selection committee had not assigned any reason for putting respondent nos. 4 and 5 above respondent no.1 in the select list. no material has been produced before us to show that it is the selection committee which upon assessment of merit of the appellant and respondent nos. 4 and 5, found appellant was less meritorious than the respondent nos. 4 and 5. in the first place the division bench overlooked that according to the statutory eligibility criterion only a section officer or a p.a.-cum-stenographer was eligible to be considered for appointment as assistant registrar and respondent no.1 was a head assistant. the division bench seems to have overlooked that while respondent nos. 4 and 5 were at ranks iv and v in the select list, respondent no.1 was at rank xiii and by brining him at par with respondent nos. 4 and 5, the division bench clearly ignored the claims of the seven candidates who figured in between from rank vi to xii and who were above respondent no.1.1. the plaintiff claims that the plaintiff and the father of the defendant entered into a partnership business and following the death of the defendants father, the defendant first attempted to hold himself out as a partner of such other firm and subsequently as proprietor thereof. 2. g.a.no.4012 of 2004 is the plaintiffs principal interlocutory application filed immediately after the institution of the suit. upon the defendant apparently changing his stand from claiming to be a partner of the other firm to being the proprietor thereof, the plaint relating to suit was permitted to be amended. g.a.no.2061 of 2005 is the subsequent application of the plaintiff on similar lines as the first but by bringing on record the subsequent events and incorporating the amendment. 3. the plaintiff and the father of the defendant apparently set up a partnership firm by the name of shree mahabir estate company. the dispute now is as to an immovable property of considerable size at 4, salkia school road, howrah across the river. the plaintiff claims that the defendant has purported to deal with parts of such immovable property or inducted tenants thereat or created third party rights in respect thereof without having any authority to do so. 4. upon g.a.no.4012 of 2004 being received, an order was made on october 15, 2004 in terms of prayer (b) thereof. prayer (b) provided for an injunction restraining the defendant from taking any steps or doing anything or claiming or holding himself out to be a partner of the firm, shree mahabir estate company. 5. such order was subsequently extended. the defendant carried g.a.no.3694 of 2005 seeking rejection of the plaint and/or dismissal of the suit on divers legal grounds including that the suit was barred by section 69 of the partnership act, 1932 and that there was no authority on behalf of the plaintiff for the suit to be filed. g.a.no.3694 of 2005 has been disposed of by preserving the defendants objections on various counts and requiring them to be decided at the trial. 6. it would not be equitable, in such circumstances, for the plaintiff to be favoured with the order of injunction against the defendant and be left free to deal with the property or parts thereof without there being a corresponding order of restraint. accordingly, g.a. no. 4012 of 2004 and g.a. no. 2061 of 2005 are disposed of by restraining the parties from dealing with or disposing of or alienating or encumbering any portion of premises no. 4, salkia school road, howrah, in any manner whatsoever. the parties are also restrained from surrendering the tenancy in respect of the salkia property without previous leave of court. 7. since no receiver has been sought, no receiver is appointed, but ms. nilanjana adhya, advocate is appointed special officer to visit the premises and file a report as to the state of the occupation thereat and the particulars of the occupants. the special officer will be paid a remuneration of 800 gm to be shared by the plaintiff and the defendant. 8. the special officers report should be filed within four weeks from date with copies thereof to the parties. the special officer will stand discharged upon filing her report. there will be no order as to costs. g.a. no. 1249 of 2006 has long been disposed of and should be struck off the list. urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Judgment:
1. The plaintiff claims that the plaintiff and the father of the defendant entered into a partnership business and following the death of the defendants father, the defendant first attempted to hold himself out as a partner of such other firm and subsequently as proprietor thereof.

2. G.A.No.4012 of 2004 is the plaintiffs principal interlocutory application filed immediately after the institution of the suit. Upon the defendant apparently changing his stand from claiming to be a partner of the other firm to being the proprietor thereof, the plaint relating to suit was permitted to be amended. G.A.No.2061 of 2005 is the subsequent application of the plaintiff on similar lines as the first but by bringing on record the subsequent events and incorporating the amendment.

3. The plaintiff and the father of the defendant apparently set up a partnership firm by the name of Shree Mahabir Estate Company. The dispute now is as to an immovable property of considerable size at 4, Salkia School Road, Howrah across the river. The plaintiff claims that the defendant has purported to deal with parts of such immovable property or inducted tenants thereat or created third party rights in respect thereof without having any authority to do so.

4. Upon G.A.No.4012 of 2004 being received, an order was made on October 15, 2004 in terms of prayer (b) thereof. Prayer (b) provided for an injunction restraining the defendant from taking any steps or doing anything or claiming or holding himself out to be a partner of the firm, Shree Mahabir Estate Company.

5. Such order was subsequently extended. The defendant carried G.A.No.3694 of 2005 seeking rejection of the plaint and/or dismissal of the suit on divers legal grounds including that the suit was barred by Section 69 of the Partnership Act, 1932 and that there was no authority on behalf of the plaintiff for the suit to be filed. G.A.No.3694 of 2005 has been disposed of by preserving the defendants objections on various counts and requiring them to be decided at the trial.

6. It would not be equitable, in such circumstances, for the plaintiff to be favoured with the order of injunction against the defendant and be left free to deal with the property or parts thereof without there being a corresponding order of restraint. Accordingly, G.A. No. 4012 of 2004 and G.A. No. 2061 of 2005 are disposed of by restraining the parties from dealing with or disposing of or alienating or encumbering any portion of premises no. 4, Salkia School Road, Howrah, in any manner whatsoever. The parties are also restrained from surrendering the tenancy in respect of the Salkia property without previous leave of Court.

7. Since no Receiver has been sought, no Receiver is appointed, but Ms. Nilanjana Adhya, Advocate is appointed Special Officer to visit the premises and file a report as to the state of the occupation thereat and the particulars of the occupants. The Special Officer will be paid a remuneration of 800 GM to be shared by the plaintiff and the defendant.

8. The Special Officers report should be filed within four weeks from date with copies thereof to the parties. The Special Officer will stand discharged upon filing her report. There will be no order as to costs. G.A. No. 1249 of 2006 has long been disposed of and should be struck off the list. Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.