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CRP 520/2015 & CRP 526/15 Page 1 of 26
THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP No. 520 of 2015
Radheshyam Jalan … Petitioner
-Versus-
1. M/s. Triplex.
2. Smt. Rekha Devi Achantani … Respondents
AND
CRP No. 526 of 2015
Radheshyam Jalan … Petitioner
-Versus-
1. Rakesh Kumar Achantani.
2. M/s. Triplex.
3. Smt. Rekha Devi Achantani … Respondents
BEFORE
HON’BLE MR. JUSTICE KALYAN RAI SURANA
Advocates for the Petitioner : Mr. G.N. Sahewalla, Senior Advocate.
: Ms. B. Sarma.
Advocates for the Respondents : Mr. Kamal Agarwal, Senior Advocate
: Mr. AK Gupta.
Date of hearing : 10.08.2017.
Date of judgment and order : 14.09.2017.
CRP 520/2015 & CRP 526/15 Page 2 of 26
JUDGMENT AND ORDER (CAV)
Heard Mr. G.N. Sahewalla, the learned Senior counsel for the
petitioner as well as Mr. K. Agarwal, learned Senior counsel assisted by Mr. A.K.
Gupta, learned counsel appearing for the respondents.
2) The petitioner- landlord is the common petitioner in both these two
revisions i.e. CRP 520/2015 and CRP 526/2015, which arise from the proceedings
of T.S. No. 2/2008.
3) For the sake of convenience, the respondents herein are hereinafter
referred as defendant per cause title of the amended plaint of the suit, except for
referring them as respondents as per cause title for CRP 520/15.
4) The petitioner herein filed TS No.2/2008, which was filed for evicting
the defendant No. 1 i.e. M/s. Triplex and defendant No. 2 i.e. Shri Rakesh Kumar
Achantani. By virtue of order dated 22.09.2010 passed by this Court in CRP
372/2010, Smti. Rekha Devi Achantani was impleaded as defendant No. 3 in the
suit. The said suit was decreed by judgment and decree dated 21.11.2012
passed by the learned Munsiff No. 2, Dibrugarh.
5) The defendant No. 2, namely, Rakesh Kumar Achantani preferred an
appeal against the said judgment and decree passed in TS 2/2008, which was
registered as T.A. No. 7/2013. The defendants No.1 and 3, namely, M/s. Triplex
and Smt. Rekha Devi Achantani filed a separate appeal against the same decree,
which was registered as T.A. No. 4/2013.
6) Both the appeals were analogously heard and both the appeals were
allowed by virtue of judgment and decree dated 10.09.2015 passed by the
learned Civil Judge, Dibrugarh, by reversing the judgment and decree passed by
CRP 520/2015 & CRP 526/15 Page 3 of 26
the learned trial court. Resultantly, the said TS No.2/2008 was dismissed on the
ground of non-joinder of one Rita Lalwani, the daughter of the defendant No. 3,
who is also one of the representatives of the predecessor in interest of defendant
No. 2 and 3, Late Motilal Achantani.
7) Therefore, the petitioner- plaintiff had filed two revisions i.e. CRP
520/2015 and CRP 526/2015 to challenge the first appellate judgment and
decree passed therein. The suit premises involved in T.S. No. 2 of 2008 is all that
Single storied C.I. sheet roofed premises measuring 23 feet X 30 feet approx.,
having mezzanine floor between the pucca floor and C.I. Sheet roof, having three
sides half brick walls and half C.I. Sheet walls, wooden doors on the front
included in Municipal Holding No.103, Ward No. 11 of Dibrugarh Municipal Board,
having a monthly rent of Rs.1,000/- per month.
8) As per the statements made in the plaint, it was projected that the
defendant No. 2 was the proprietor of defendant No. 1 firm had been occupying
the suit premises from 01.06.1994 and the defendants paid the monthly rent at
the rate of Rs.1,000/- per month to the plaintiff upto the month of October, 2004
vide rent receipt dated 02.11.2004 and since November, 2004, despite repeated
demands and personal calls they neglected to pay rent. The counter foils of the
first and last rent receipt for June 1994 and October, 2004 were filed along with
the plaint as plaintiff document No. 1 and 2 respectively. It was claimed that the
plaintiff had obtained due permission for raising multi storied construction on
three sides (east, west and south) of the suit premises and therefore, stated that
constructions were already raised on the western and southern side and they
were yet to start construction on the eastern side and therefore, the plaintiff
intended to raise construction on eastern side on the premises and also the suit
premises. The advocates’ notice for termination of tenancy w.e.f. 01.04.2005 and
ejectment notice dated 07.03.2005 was sent by registered post asking the
defendants to vacate and to deliver khas, vacant and peaceful possession of the
schedule premises within 31.03.2005 or that they would be liable for damages at
CRP 520/2015 & CRP 526/15 Page 4 of 26
the rate of Rs.100/- per diem since 01.04.2005 till evicted. In the plaint it was
claimed that the defendant No. 3 was not the tenant under the plaintiff and did
not pay any money to the plaintiff and the rent for the suit premises after
October, 2004 was always paid or defendant No. 2 for and on behalf of
defendant No. 1 against several money receipts by simultaneously putting his
signature on the counter-foils thereof. Apart from claiming the defendants No.1
and 2 to be defaulters since the month of November, 2004, the plaintiff also
claimed the suit premises for expansion of his business. A part of the plaintiff’s
money claim, being barred by limitation was waived and arrear rent, mense rent
for last three years i.e. for years 2005, 2006 and 2007 amounting to Rs.36,000/-
was claimed together with the prayer for eviction of the defendants, pendente
lite and future mense rent, cost and other reliefs.
9) The defendants contested the suit by filing their written statement. As
per the trial court record all pages of written statement except verification and
affidavit were signed by the defendant No. 2 and 3. The defendants took a plea
that late Motilal Achantani was the original tenant of the suit premises since the
year 1946 and on his death the tenancy devolved on his wife Smt. Rekha Devi
Achantani, the son of Sri Rakesh Kumar Achantani and a married daughter,
namely, Rita Lalwani. It was stated that rent for November, 2004 was paid on
02.12.2004 and the rent for the month of December, 2004 was paid on
03.01.2005 through his son Sri Ramesh Kumar Jalan by Sri Bomkesh Banerjee
the then Manager of the defendants and the rent for the month of January, 2005
was paid to Sri Nagina Rai, an employee of the plaintiff on 04.02.2005, who
collected the same from M/s. Triplex, the defendant No.1, but no rent receipt
was given on the plea that receipt book had exhausted. The defendants claimed
that rent for the month of February, 2005 was tendered on 03.02.2005 but the
plaintiff refused to accept the same and also denied to give rent receipt for the
month of November and December, 2004 and January, 2005. Thereafter, the
defendants deposited the rent for the month of February, 2005 in court by Misc.
(N.J.) Case No. 250/2005 and since then the defendants were depositing the rent
CRP 520/2015 & CRP 526/15 Page 5 of 26
in court. The defendants admitted serving notice dated 07.03.2005 to the
plaintiff through their Advocate and claimed that further rent were being
deposited before the rent controller and prayed for dismissal of the suit. Be it
stated that the defendants claimed to be depositing rent in court for two
separate tenanted premises together.
10) At the cost of repetition, it is mentioned that the defendant No.3 had
been impleaded by virtue of order dated 22.09.2010 passed by this Court in CRP
372/2010. However, as the defendant No.3 had signed the written statement
filed by the defendant No.2, no separate written statement was filed by her.
11) In course of trial, the learned trial court framed 6 issues, out of which
Issue No.1 was reframed at the time of writing judgment. The issues are:-
1) Whether the suit is maintainable in law and facts?
2) Whether there is cause of action for the suit?
3) Whether the defendants are defaulter in paying rents to the plaintiff in
accordance with the terms and conditions?
4) Whether the suit premises is required bonafide by the plaintiff for their
own business purpose including re-construction thereof?
5) Whether the plaintiff is entitled to relief as claimed for?
6) To what relief(s) the parties are entitled to?
The re-cast issue No.1 is whether the suit is maintainable in law and
facts including non- joinder of necessary issues?
12) The petitioner- plaintiff examined himself as PW-1 and one Sri Rajesh
Kumar Agarwal as PW-2. The defendants examined 7 DWs, namely, Rakesh
Kumar Achantani (DW-1), Gordhan Das Mordani (DW-2), Gulshan Budhwani
(DW-3), Rekha Devi Achantani (DW-4), Probin Chandra Saikia (DW-5), Milaram
Deori (DW-6) and Maheswar Gowal (DW-7).
CRP 520/2015 & CRP 526/15 Page 6 of 26
13) On issue No.(i), the learned trial court, relied on an Advocate’s notice
dated 07.03.2005 (Ext.131), sent on behalf of the defendants No.2 and 3,
claiming them to be tenants since the time of their predecessor-in- interest,
Motilal Achantani, claiming that they were paying rent regularly and, as such, it
was held that there is no question of inheriting the tenancy rights and no
question arose for joining the legal heirs of Late Motilal Achantani. The learned
trial court also relied on the evidence of Defendant No.3 (DW-4), where she
claimed that she was the proprietor of the Defendant No.1 firm and that her son
(Defendant No.2), was looking after the shop and paid rent to the plaintiff.
Having held that the defendant No.2 was paying rent for Defendant No.1 and the
defendant No.3 joined in the suit, claiming to be the proprietor of defendant No.1
firm, the defendant side is duly represented and therefore, the suit was held to
be neither hit by the principles of non- joinder of necessary parties and nor
appeared to be not maintainable under any law in force. It was also held that
under Order XXX CPC, the suit can be instituted in the name of the firm and, as
such, it was held that the suit was maintainable and not bad for non- joinder of
necessary parties.
14) In respect of issue No.(iii), by mentioning that the documents marked
as Ext.E, F and G are the register maintained against the slips issued to their
customers and the same was made by binding papers from different old books
and, as such, it was held that the said Ext. E, F and G were not the entries made
in the books of accounts in usual course of business and, as such, were
inadmissible as per Section 34 of the Evidence Act, 1872. The learned trial court
also disbelieved the case of defendants that enhanced rent was demanded, by
referring to the notice dated 07.03.2005 (Ext.131), by which the plaintiff was
asked to issue upto date rent receipts after the month of October, 2004 within 7
days from the date of receipt of the notice, failing which the rent would be
deposited before the Rent Controller, and by further referring that nothing was
stated in the notice about demand of enhanced rent or about tender of rent on
03.03.2005. Hence, it was held that the mandatory provision for depositing rent
CRP 520/2015 & CRP 526/15 Page 7 of 26
was not complied with before depositing rent in court and, as such, it was held
that the defendants were a defaulter in paying rent to the plaintiff.
15) On issue No.(iv), it was held that the requirement of the suit premises
by the plaintiff was not bona fide. On issue No.(ii), it was held that there was
cause of action for the suit. On issue No.(v) and (vi), it was held that the
defendants were liable to be evicted from the suit premises and it was further
held that the plaintiff was entitled to recover arrear rent of Rs.36,000/- together
with pendente lite and future rent till ejectment and it was also held that as there
was no counter-claim, the defendants were not entitled to any relief.
16) As stated earlier, while the defendants No.1 and 3 preferred an
appeal, which was numbered as TA No.4/2013, the defendant No.2 preferred a
separate appeal, which was numbered as TA No. 7/2013. The plaintiff filed his
cross objection on the issue of bona fide requirement.
17) Both the appeals were analogously heard and decided by the learned
Court of Civil Judge, Dibrugarh, by First Appellate judgment and decree dated
10.09.2015. The learned First Appellate Court framed the following points of
determination:-
i. Whether the decision of learned trial court in issue No.3 is just and
proper and in accordance with law?
ii. Whether the suit is maintainable in law and on facts including non-
joinder of necessary parties?
iii. Whether the cross objection is entitled to be allowed.
18) On the first point of determination No. (A), the learned first appellate
court independently analyzed the evidence of the parties, and it also applied the
ratio of various cases cited therein and arrived at an independent finding that the
learned trial court had rightly held that the defendants were defaulters in
payment of rent and the said finding was upheld.
CRP 520/2015 & CRP 526/15 Page 8 of 26
19) On point of determination No. (B), the learned first appellate court
discussed the evidence of PW-1, where he had stated that his father was the
original tenant since the year 1946 and that is why the tenancy had continued
since the time of his father. It was discussed that although the defendant No.3
got herself impleaded in the suit, but the married daughter, of Motilal Achantani,
namely, Rita Lalwani did not get herself impleaded. Having discussed the finding
of the learned trial Court, the learned First Appellate Court was not inclined to
concur with the decision by the learned trial court on the issue of non- joinder of
necessary parties firstly, on the ground that the tenancy was heritable and, as
such, on the death of the original tenant, all the legal heirs would inherit the said
right and they would step into the shoes of the original tenant by operation of
law and each of them assumed separate status as a tenant.
20) In this connection, the learned first appellate court had referred to the
definition of tenant as provided in Section 2(f) of the Assam Urban Areas Rent
Control Act, 1972, as per which – “Tenant means person by whom or on whose
behalf rent is payable for any house and includes every person who from time to
time derives title under a tenant”. In this context, the learned first appellate
court by considering the case of (i) Ranjit Kumar Choudhury Vs. Gopeesh
Chakravarty & Ors., (1996) 1 GLT 279, (ii) Sushanta Kar Vs. Ganesh Chakraborty,
AIR 2015 Gau 105, and (iii) Gian Devi Anand Vs. Jeevan Kumar & Ors., AIR 1985
SC 796, held that the suit is bad for non-joinder of necessary party and the point
was answered in favour of the defendants.
21) In respect of the Point of Determination No.(C), as to whether the
cross- objection is entitled to be allowed, it was held that the landlord had no
bona fide requirement for the suit premises.
22) At the outset, it would be pertinent to state that the Point of
Determination No.(A) and (C) are both concurrent finding of facts by both the
CRP 520/2015 & CRP 526/15 Page 9 of 26
learned courts below. Both the courts have concurrently held that the tenant was
a defaulter in payment of monthly rent to the landlord. Both Courts have also
concurrently held that the landlord had no bona fide requirement for the suit
premises. At the commencement of hearing, on a pointed query by this Court,
the learned Senior Counsels have fairly submitted that in so far as the issue of
bona fide requirement of suit premises is concerned, there is no serious
challenge on the said point. Therefore, this court would be discussing the point
of determination No. (A) and (B) as framed by the learned first appellate court.
23) The learned Senior Counsel for the petitioner has submitted that the
learned first appellate court had misdirected itself on facts and in law and there
being no evidence on record, held Smt. Rita Lalwani as a necessary party in the
suit. It is also submitted that the Defendant No.2, by filing his separate appeal,
being T.A. No. 7/2013, disproved that even he was one of the joint inheritors of
the tenanted premises, as it amounted to acknowledgement of the fact that his
mother, Smt. Rekha Devi Achantani (Defendant No.3) was the proprietor of the
Defendant No.1 firm. Hence, according to him, misdirection in appreciating the
evidence on record amounted to failure exercise jurisdiction vested in it by law as
well as exercise of jurisdiction with material irregularity and amounted to
jurisdictional error, which was required to be corrected in revision. In order to
support his contention, the learned Senior Counsel for the petitioner has referred
to the evidence of the defendants, pleadings and other materials filed by the
parties. It is submitted that the learned Trial Court had correctly appreciated the
evidence on record and had rightly held that the firm was a tenant and the suit
was maintainable under the provisions of Order XXX CPC and, as such, the
learned first appellate court committed error of jurisdiction by considering the
extraneous materials on record and failed to appreciate that the past tenancy, if
any, by Late Motilal Achantani was not sufficient to dislodge the evidence on
record which prove that the Defendant No.1 was a proprietorship concern of
Defendant No.3 and the tenancy was not inherited by Rita Lalwani from her
father, after his death, but this was a case where the Defendant No.3 was the
CRP 520/2015 & CRP 526/15 Page 10 of 26
owner of the firm and there was no question of any inheritance. Hence, the
impugned judgment was liable to be set aside and reversed.
24) Per contra, the learned Senior Counsel for the Respondents herein has
submitted that the issue of non- joinder was a very vital issue and it is too well
settled that the tenancy is inheritable, as such, there was no infirmity in the
judgment and decree passed by the learned first appellate court.
25) The Senior learned Counsel for the respondents has submitted that
under the provisions of Section 115 CPC, the revisional court has limited
jurisdiction. It is strongly argued that the revisional Court cannot correct
conclusion of law or fact where the issue of jurisdiction is not involved. It is also
submitted that the revisional jurisdiction is not similar to appellate jurisdiction. It
is also submitted that while exercising revisional jurisdiction, the High Court is
not authorized to interfere and correct even gross or palpable errors of
subordinate courts unless such error has any relation to jurisdictional errors. The
learned Senior Counsel for the respondents has placed reliance of the following
cases in support of his argument:-
i. Keshardeo Chamaria Vs. Radha Kissen Chamaria & Ors., AIR 1953 SC
23.
ii. D.L.F. Housing & Construction Company (P) Ltd. Vs. Sarup Singh &
Ors., (1063) 3 SCC 807.
iii. Sher Singh (Dead) by LRs. Vs. Joint Director of Consolidation & ors.,
(1978) 3 SCC 172.
26) The learned Senior counsel for the respondents has also submitted
that it is impermissible for the revisional court to re-appreciate the evidence on
record and arrive at a finding different from the finding recorded by the learned
first appellate court, which is the last court of facts, the learned Senior Counsel
for the respondents has relied on the case of Bhanwarlal Dugar & Ors. Vs.
Birdhichand Pannalal & Ors., (2010) 12 SCC 164.
CRP 520/2015 & CRP 526/15 Page 11 of 26
27) It is submitted that as Smt. Rita Lalwani is one of the legal heir of
Motilal Achantani, non-joinder of the said heir must be held to be fatal for the
maintainability of the suit. In respect of his submissions on the issue of non-
joinder of necessary parties, the learned Senior Counsel for the respondents has
placed reliance on the case of Kanakarathanammal Vs. Loganatha Mudaliar, AIR
1965 SC 271.
28) The learned Senior Counsel for the respondents has submitted that
the tenancy was inheritable and therefore, non-impleading of all the legal heirs of
a deceased tenant was fatal for the maintainability of the suit for eviction of a
tenant. In this regard, the learned Senior Counsel for the respondents has placed
reliance on the following cases:-
i) Gian Devi Anand Vs. Jeevan Kumar & Ors., (1985) 2 SCC 683. ii) Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup &
Anr., AIR 1990 SC 2053. iii) Richard Lee Vs. Girish Soni & Anr., (2017) 3 SCC 194. iv) On the death of the Sole Petitioner Suranjan Deb, his heirs Smt.
Sushma Rani Dey & Ors. Vs. Musstt. Hamida Khatun Choudhury & Ors., (1993) Suppl (1) GLR 113.
v) Ranjit Kr. Choudhury Vs. Gopeesh Chakravarty & Ors., 1996 (1) GLT 279.
vi) Sushanta Kar Vs. Ganesh Chakraborty through his LRs., AIR 2015 Gau 109.
29) Considered the submissions made by the learned Senior Counsels for
both sides and perused the materials on record. While the learned Senior
Counsel for the petitioner had filed a paper-book containing copy of various
documents including petition for impleading defendant No.3, order dated
22.09.2010 passed by this Court, evidence and cross-examination of DWs and
copy of exhibits, the learned Senior Counsel for the respondents had filed copy
of the evidence and cross-examination of PW.1 and cross-examination of DWs.
Also perused the ‘lower court record’ (LCR for short) in respect of TS No. 2/2008.
The parties are ad-idem that the records of TS No. 1/2008 is also similar to the
CRP 520/2015 & CRP 526/15 Page 12 of 26
record of TS No.2/2008 and, as such, the learned Senior Counsel for both sides
relied on the said LCR for the purpose of hearing of this two connected revision
petitions.
30) On appreciating the Point of determination No. (A) relating to the
issue of whether the respondents are defaulter in payment of monthly rent to the
petitioner/ landlord, it is seen that from the evidence on record, that none of the
defendant’s witnesses made any effort to prove the records of various Misc.(N.J.)
Case records, although many such records were called from the Rent Controller
and kept in record of the suit. Under the Assam Urban Areas Rent Control Act,
1972, rent can only be deposited in Court after the tenant offers monthly rent to
the landlord and only on refusal can such rent be deposited in Court under the
provisions of Section 5(4) thereof by filing process and by depositing process
fees so as to enable the court to serve notice to the landlord. There are catena of
judgments of this Court like Abdul Matin Choudhury Vs. Nilayananda Dutta Banik,
1997 (2) GLT 590, wherein it has been held that not only rent can be deposited
in court after complying with the provisions of Section 5(4) of the Assam Urban
Areas Rent Control Act, 1972 but the duty to pay rent subsists during the
pendency of the suit and appeal. Various other cases find reference in the first
appellate judgment. As no Misc. (N.J.) Case records are exhibited and proved,
this court has no hesitation to hold that the concurrent finding of facts that the
tenant had defaulted in paying monthly rent to the landlord needs no
interference.
31) Moreover, as per evidence of the DWs, there are two shops, so there
are two separate offer and refusal of rent, rent is separate, and although the
landlord recognizes Rakesh Kumar Achantani as the Proprietor of the firm M/s.
Triplex, as per version in cross examination of DW-4, she was the proprietor of
one shop and her son was the owner of the other shop, whereas, the DW-1
claims that both he and his mother Smt. Rekha Devi Achantani were the
proprietors of the firm M/s. Triplex as per Ext.D i.e. Misc. (N.J.) Case No.
CRP 520/2015 & CRP 526/15 Page 13 of 26
250/2005. Therefore, according to the opinion of this court, the rent could not
have been deposited by two persons claiming themselves to be the proprietor of
M/s. Triplex in a single non-judicial case for deposit of rent in court. However,
the same being not the finding by both the courts below, this court does not
want to disturb the concurrent finding with this additional finding against the
tenants.
32) Coming to the Point of Determination No. (B) as framed by the
learned First Appellate Court, i.e. whether the suit is maintainable in law and on
facts including non- joinder of necessary parties. As indicated above, the finding
by the learned first appellate court is that Rita Lalwani, the married daughter of
Motilal Achantani was a necessary party, required to be impleaded as one of the
defendants in the suit. According to this Court-
i. First of all, if the plea of the Defendant No.2, namely, Rakesh Kumar
Achantani that his sister Rita Lalwani inherited the estate left behind
by their father is at all acceptable, then the said inheritance must be
either under the provisions of the Indian Succession Act, 1925 or
under the provisions of the Hindu Succession Act, 1956.
1) As Late Motilal Achantani died on 29.06.2004 (as per statement
made by DW-1 in his cross examination). On his death, he left
his widow and two children as lineal descendents, the provisions
of Section 33 Indian Succession Act, 1925 would appear to apply
and the Defendant No.2, i.e. Rekha Devi Achantani would have
received one-third share and two-thirds of such inheritance
would go jointly to the lineal descendents, i.e. to Rakesh Kumar
Achantani (son) and Rekha Lalwani (daughter). Thus, joint
inheritance is provided for under section 33 of the Succession
Act, 1925, therefore, when the estate of Late Motilal Achantani is
found to be represented by one of his lineal descendents, it is
hard to accept that the estate left behind by Late Motilal
CRP 520/2015 & CRP 526/15 Page 14 of 26
Achantani was not sufficiently represented by Rakesh Kumar
Achantani, his son.
2) If the estate of Late Motilal Achantani had devolved on his heirs
under Hindu Succession Act, 1956, then for class-I heirs, the
provisions of Section 9 thereof is found to apply and, as such,
under Section 9, the order of succession among the heirs
specified in Schedule, those in class-I shall take simultaneously
and to the exclusion of all other heirs. Therefore, if the estate
devolves on the legal heirs of Late Motilal Achantani, then the
wife, son and daughter, all being heirs of Class-I, would take the
estate jointly and, as such, the estate left behind by Late Motilal
Achantani was sufficiently represented by two out of three heirs,
viz., wife and son.
3) At this stage, it would be relevant to refer to the provisions of
Explanation-VI of Section 11 CPC. It provides that “Where
persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and others, all
persons interested in such right shall, for the purposes of this
section, be deemed to claim under the person so litigating.”
Therefore, when Rakesh Kumar Achantani (Defendant No.2) is
espousing the cause of his sister, Rita Lalwani, it can be deemed
that the right so agitated comes within the scope of Explanation-
VI of Section 11 CPC.
4) As an example, assuming that Smt. Rita Lalwani had jointly
inherited the tenancy, then she is also deemed to be aware that
her firm i.e. Defendant No.1 is litigating with her landlord. Yet
she has not come forward to get herself impleaded. Therefore,
under the provisions of Explanation-VI of Section 11 CPC, the
said Defendant No.2 is deemed to be litigating for Rita Lalwani.
For this proposition, this Court relies on the case of Surayya
Begum Vs. Mohd. Usman, (1991) 2 SCC 114 (para-9), where the
CRP 520/2015 & CRP 526/15 Page 15 of 26
appeal arising out of the claim of daughters of tenant was
dismissed.
5) Hence, non- impleading of Rita Lalwani cannot be said to be fatal
to the maintainability of the suit.
ii. The second view of this Court is that in case the tenancy is heritable,
then the legal heirs of the original tenant assume the status of
tenants- in- common, and not a separate individual tenancy right.
Therefore, under this view also, the two out of three legal heirs of
Late Motilal Achantani having contested the suit, it must be held that
the estate of Late Motilal Achantani was sufficiently represented by
them and, as such, the non- impleading of Rita Lalwani cannot be said
to be fatal to the maintainability of the suit.
iii. Now coming to the present case in hand, the defendant No.1 firm was
acknowledged as a tenant, both by the landlord and also by the
defendants. Therefore, notwithstanding the contradictory claim by the
defendants No.2 and 3 as to whether the Defendant No.2 was its
proprietor or the defendant No.3 was its proprietor, as per plaintiff
Ext.1 to Ext.125, the tenant was the firm M/s. Triplex and the
defendant No.2 was merely a payer of rent as its proprietor. Ext. A,
A(1) to Ext.A(59), Ex.B, Ext.C, Ext.D, Ext.X to Ext.Z and Ext.A(1) to
Ext.E(1), all confirm this position that M/s. Triplex was the tenant.
Therefore, the said firm, being a going concern, there is no way to
accept that Motilal Achantani, having died on 29.06.2004, was the
tenant on 02.01.2008, when the suit was filed by the petitioner-
plaintiff. A firm could have been sued in its name as per the provisions
of Order XXX Rule 10 CPC.
iv. While Defendant No.2 claimed that Rita Lalwani was one of the legal
heir of Motilal Achantani, and that he along with his sister and his
mother – Rekha Devi Achantani had inherited the tenancy through
their predecessor- in- interest Late Motilal Achantani, his mother, the
defendant No.3 took a complete change in her stand and proved
CRP 520/2015 & CRP 526/15 Page 16 of 26
documents like Certificate of Registration (Ext.A), Trade Licence
(Ext.B), Notice from Assistant Labour Commissioner (Ext.C), Notice
from Labour Inspector (Ext.D), LIC Premium Receipt (Ext.E to Ext.I),
Income Tax payment challans, acknowledgements, intimation, returns,
etc. (Ext.J to Ext.W), Copy of NJ Case challans [Ext.X to Ext.Z and
Ext.A(1) to E(1)] to establish that she was the proprietor of M/s.
Triplex since the year 1983. She claimed that she had established the
firm through her Stridhan before the birth of Defendant No.2 and that
through the tenancy continued since the time of her husband, but the
suit premises was taken by her and her deceased husband from the
father of the plaintiff and at that time, the plaintiff was a school- going
boy. She claimed that rent was duly being deposited in the Court
through various N.J. Case challans. She claimed that she and her son
were depositing rent in court through SBI. However, in her cross-
examination, Defendant No.3 had stated that her husband was the
proprietor of defendant No.1 firm and after his death, she was the
proprietor of the said firm. She had also stated that she did not realize
that rent receipts were being issued in the name of her son. She had
also stated in her cross examination that her son i.e. the defendant
No.2 was the proprietor of another shop in the name of M/s. Triplex in
the same market, but she claimed to not know whether the rent
receipts for the two shops were issued separately or not. She also
admitted that she never went to pay rent to the landlord. Moreover, in
his cross- examination, the Defendant No.1 (DW-1) asserted that he
had the power to manage the business and take decision. He had also
stated that “it is not a fact that while alive, his father was the
proprietor of M/s. Triplex”. He denied the suggestion that from
01.06.1994, he was paying rent to the plaintiff as proprietor of
Defendant No.1 firm. He admitted that there were two shops under
his possession and he paid and received rent receipts for two shops
separately and also admitted that the books Ext.E to G were not his
CRP 520/2015 & CRP 526/15 Page 17 of 26
cash book. He admitted that in Ext.D petition dated 11.03.2005 for
depositing rent for the month of February, 2005 vide Misc. (N.J.) Case
No.250/2005, it was mentioned that Defendants No.2 and 3 were
proprietor of M/s. Triplex and that by the same, rent for two premises
were deposited. He also admitted that the written statement contained
signatures of him and defendant No.3. PW-1 also admitted that it was
stated in his Evidence- on- affidavit that “Late Motilal Achantani was
the proprietor of defendant No.1 during his lifetime and after his death
his son and wife became the joint owners of the defendant No.1.”
Therefore, -
1) As per the evidence of DW-4 i.e. Defendant No.3, she was the
proprietor of the suit premises described in the Schedule of this
suit i.e. TS No.2/2008. Although her evidence cannot be
accepted, as it is beyond pleadings, but from the contents of
Ext.D i.e. Misc. (N.J.) Case No.250/2005, both the defendant
No.2 and Defendant No.3 were the proprietor of M/s. Triplex.
There are two different shops in the name of M/s. Triplex. While
Defendant No.3 claims to be the proprietress of the suit shop, as
DW-4, she claims that the defendant No.2 was the proprietor of
the other shop. The defendant No.3 proved Certificate of
Registration of shop, Trade Licence, Income Tax records showing
herself as proprietor of Defendant No.1 firm. Although her
evidence has no force being contrary to her pleadings, but the
said documents are sufficient to disbelieve the plea taken by the
defendant No.2 that his father Motilal Achantani was the tenant
of the landlord and that on his death, his sister had stepped into
the shoes of his father as a co-tenant. A person who is dead on
29.06.2004, i.e. way before 02.01.2008, the date when the suit
was filed, cannot be considered as a tenant as no rent could
have been validly paid on behalf of a dead person. Thus, Rita
CRP 520/2015 & CRP 526/15 Page 18 of 26
Lalwani cannot be said to be a proper or necessary party in the
suit.
2) The contents of Ext.D proved that there were two shops and rent
was paid separately for the two shops to the plaintiff- landlord
and that the defendant No.2 and 3 were both referred as
proprietor of M/s. Triplex, therefore, the stand of the defendant
No.3 in her cross examination that while she was the proprietress
of one shop, her son i.e. the defendant No.2 was the proprietor
of the other shop appears to be duly proved. In light of such
evidence, it is disproved that Rita Lalwani was either a proper
and/or a necessary party in the suit.
3) The plea of the defendant No.2 that his sister also inherited the
tenancy as legal heir of her father stands disproved by Ext.D and
rent deposit challans Ext.A(1) to A(59), which were all deposited
in the name of the defendant No.2. The trial court records
received reveals that the records of 41 numbers of Misc. (N.J.)
Cases (i.e. rent deposit cases) were called, but not proved by the
defendants. In the cause title of these cases, which is found to
be similar to the one marked as Ext.D, there are three
petitioners, viz., (1) M/s. Triplex, (2) Smt. Rekha Devi Achantani,
and (3) Sri Rakesh Kumar Achantani. The defendants claimed
that the defendants No.2 and 3 were proprietors of M/s. Triplex.
Except for Ext.D, no other Misc. (N.J.) Cases can be read in
evidence as those were not the exhibited documents, but these
documents compel this court to take adverse presumption under
section 114 Illustration (g) of the Evidence Act, 1872 that had
those Misc. (N.J.) Case records been proved, the same would
have gone against the plea by the defendant No.2 that his sister
Smt. Rita Lalwani had inherited the tenancy. It must be kept in
mind that in all documents exhibited by the defendant No.3, she
had proved that she was proprietress of the defendant No.1 firm.
CRP 520/2015 & CRP 526/15 Page 19 of 26
Such evidence has not been discredited by any other evidence on
record from the defendants’ side.
v. If a tenant dies, there is no doubt that the tenancy is inherited by all
his legal heirs, but notwithstanding that in the present case this
inheritance of suit premises was not proved, from the Ext. (A) to Ext.
Ext.Z and Ext.A(1) to E(1), it is disproved that Rita Lalwani derived
any benefit from the defendant No.1 shop as one of its co-owners. At
least, the DW-1 did not make any effort to prove through his books of
accounts that his sister ever got any share in profit or loss from the
business of defendant No.1. Therefore, there is no evidence that the
said Smt. Rita Lalwani stepped into the shoes of the original tenant for
two reasons, firstly, from the evidence of Smt. Rekha Devi Achantani
(DW-4), it is disproved that Smt. Rita Lalwani stepped into the shoes
of the original tenant, and secondly, it also disproved that even the
said Defendant No.3 inherited the tenancy through her husband after
his death.
vi. Therefore, when it is not certain as to who is carrying the business in
light of contradictory evidence from the defendants, because while on
one hand the Defendant No.2 (DW-1) claims that he, his mother and
sister had inherited the tenancy from their father and on the other
hand, the defendant No.3 makes endeavour to prove that she was the
sole proprietor, having started the business from her ‘stridhan’, the
reliance of the learned trial court on the provisions of Order XXX Rule
10 CPC where it is prescribed that a suit against the firm is
maintainable as it can be sued in the name of the firm appears is held
to be the correct approach.
vii. Moreover, as per Plaintiff Ext 1 to Ext.125, which are rent receipts
bearing dates from 05.07.1994 to 02.11.2004, the name of the tenant
is stated as “Triplex, Proprietor Rakesh Kumar Achantani”. The
Treasury challans at Ext.A(1) to A(59), which were exhibited by
Rakesh Kumar Achantani as DW-1 reflects that M/s. Triplex Dry
CRP 520/2015 & CRP 526/15 Page 20 of 26
Cleaner, Dibrugarh, was entered in the column 2 for “Name and
Address of the person on which behalf money is paid” in all except
one for the month of March, 2007, June, 2007, as per paper-book filed
by the petitioner on 04.05.2017, which bear the name of R.K.
Achantani. The petition of Misc. (N.J.) Case No. 250/2005 (Ext.D)
reflects the names of (1) M/s. Triplex Dry Cleaner, (2) Smt. Rekha
Devi Achantani and (3) Sri Rakesh Kumar Achantani as tenants of the
petitioner. Therefore, in none of the exhibits proved by the DW-1,
namely, Rakesh Kumar Achantani show that Motilal Achantani was the
tenant on the date when the suit was filed by the petitioner.
Therefore, going by the definition of ‘tenant’ as given above, there
appears to be no material to show that Motilal Achantani was a tenant
as on the date of institution of the suit so as to enable Smt. Rita
Lalwani to derive title as a tenant from her father. It can only be said
that the firm M/s. Triplex Dry Cleaner was the tenant and that Smt.
Rekha Devi Achantani and Sri Rakesh Kumar Achantani claimed to be
its proprietors. Therefore, it appears that the learned Court of Munsiff
No.2, Dibrugarh was correct in its finding that the suit filed against the
firm was maintainable under Order XXX Rule 10 CPC.
viii. The said Rita Lalwani did not assert her right of inheritance through
Late Motilal Achantani against the petitioner herein. Her alleged right
is not enforceable against the petitioner, because for obtaining the
declaratory relief as to her right against the petitioner- plaintiff and to
be declared as a tenant, the period of limitation of three years under
Article 58 of Schedule to the Limitation Act, 1963 would start to run
from the date of death of her father or at least from the end of the
month of June, 2004, being the month in which Late Motilal Achantani
died or from the extended time from 02.01.2008, when the plaintiff
had filed the suit and did not recognize either Smt. Rekha Devi
Achantani (the defendant No.3) or Late Motilal Achantani as his tenant
or the said Smt. Rita Lalwani as his tenant. This is required to be
CRP 520/2015 & CRP 526/15 Page 21 of 26
addressed because of two reasons, firstly, there is no evidence on
record that Motilal Achantani was the tenant on the date he died, and
secondly, Rita Lalwani cannot be deemed to be a tenant of the
petitioner- plaintiff even after more than three years from the death of
Motilal Achantani. It is clarified that this observation in not in respect
to her right qua the defendants No.2 and 3, but only limited with
respect to the petitioner- plaintiff. Therefore, the suit cannot be held
to be bad for non- joinder of Smt. Rita Lalwani.
ix. Assuming that Motilal Achantani was a tenant on 29.06.2004, when he
died, even then as his estate is found to be represented two out of
three legal heirs in the suit, the estate must be held to be sufficiently
represented in the suit and the omission to array Rita Lalwani, one of
the deceased’s legal heirs, who had never asserted her right over the
shop or participated in its management and in sharing profits and loss,
cannot be permitted to defeat the suit filed by the landlord on the
ground of non- joinder of necessary parties. In absence of any proof
to the contrary, it must be deemed by necessary implication that Smt.
Rita Lalwani had surrendered her right, if there be any, in favour of
the defendants No.2 and 3.
x. The finding on this point as to whether the suit was bad for non-
joinder of Smt. Rita Lalwani as a proper and necessary party, it is held
that the evidence of Defendant No.3 (DW-4) and documents proved
by her, being Ext. (A) to Ext. Ext.Z and Ext.A(1) to E(1), the
Advocate’s notice (Plaintiff Ext.131) and Rent deposit challans
[Ext.A(1) to A(49) proved by DW-1] all disprove the stand of the
Defendant No.2 (DW-1) that Rita Lalwani also had stepped into the
shoes of the original tenant, Motilal Achantani, after his death on
29.06.2004. Therefore, Smt. Rita Lalwani is neither a necessary nor a
proper party in the suit and the suit is not bad for her non-joinder as a
co-defendant in the suit.
CRP 520/2015 & CRP 526/15 Page 22 of 26
xi. The cases of (i) Ranjit Kumar Choudhury Vs. Gopeesh Chakravarty &
Ors., (1996) 1 GLT 279, (ii) Sushanta Kar Vs. Ganesh Chakraborty,
AIR 2015 Gau 105, and (iii) Gian Devi Anand Vs. Jeevan Kumar &
Ors., AIR 1985 SC 796, upon which the learned first appellate court
are distinguishable on the facts of the present case in hand because
the defendants had not led any evidence to show how Motilal
Achantani remained to be a tenant as on the date of filing of the suit,
when defendants’ evidence on record does not support the said
contention of the Defendant No.2 that Motilal Achantani was the
tenant and Rita Lalwani was required to be joined as defendants in the
suit, which plea remains unsupported by the defendants No.1 and 3.
xii. As stated herein before, in TA No. 7/2013 Rakesh Kumar Achantani,
the Defendant No.2 abandoned his claim as Proprietor of M/s. Triplex
and acknowledged his mother, i.e. Defendant No.3 as proprietor of
Defendant No.1 firm, it establishes two things, that the tenancy was in
respect of the Firm, M/s. Triplex, and secondly, Smt. Rekha Devi
Achantani (Defendant) No.3 was the proprietor thereof, as would be
evident from the cause title thereof. So no question arose about
Motilal Lalwani being the tenant of the petitioner and, as such, non-
impleading of Rita Lalwani as one of the defendants cannot be held to
be fatal for maintainability of the suit. Therefore, having held that this
is not a case where the tenancy was inherited, the cases of (i)
Keshardeo Chamaria (supra), (ii) D.L.F. Housing & Construction
Company (P) Ltd. (supra), (iii) Sher Singh (Dead) by LRs., (iv)
Bhanwarlal Dugar & Ors.(supra), (v) Kanakarathanammal (supra), (vi)
Gian Devi Anand (supra), (vii) Textile Association (India) Bombay Unit
(supra), (viii) Richard Lee (supra), (ix) Suranjan Deb, by LRs (supra),
(x) Ranjit Kr. Choudhury (supra), and (xi) Sushanta Kar (supra), which
were cited by the learned Senior Counsel for the respondents are
found to be distinguishable on facts and has no application in this case
in hand.
CRP 520/2015 & CRP 526/15 Page 23 of 26
xiii. The Constitution Bench of the Hon’ble Supreme Court of India, in the
case of N.K. Mohd. Sulaiman Sahib Vs. N.C. Mohd. Ismail Saheb, AIR
1966 SC 792 (para 14) has held that “…Where however on account of
a bona fide error, the plaintiff seeking relief institutes his suit against a
person who is not representing the estate of a deceased person
against whom the plaintiff has a claim either at all or at even partially,
in the absence of fraud or collusion or other ground which taint a
decree, a decree passed against the persons impleaded as heirs binds
the estate, even though other persons interested in the estate are not
brought on the record. This principle applies to all parties irrespective
of their religious persuasion.” Notwithstanding that the categorical
finding by this Court are (i) the suit against the Defendant No.1 firm
was maintainable, and (ii) the proprietor of Defendant No.1 was the
defendant No.2, therefore, there was no inheritance of Late Motilal
Achantani involved, but assuming that the said estate was left behind
by Late Motilal Achantani, yet, the defendants are all sufficiently
representing the said deceased and as per the ratio of the said case,
non- impleading of Smt. Rita Lalwani is not fatal to the maintainability
of the suit in reference.
xiv. Hence, the cumulative result of the discussions above, the finding of
the learned First Appellate Court on Point of Determination No.(B) is
not found to be sustainable and therefore, the said finding is set aside
and the finding of the learned Trial Court on Issue No.(3) framed in
course of trial is restored.
33) There is one more aspect of the matter. As per point of determination
No. (A), as framed by the learned first appellate court, the Defendant has been
held to be a defaulter. This is a concurrent finding of fact. Thus not only the
Defendants No.1 and 3, but also the Defendant No.1 firm has been held to be a
defaulter. Therefore, even if the said Smt. Rita Lalwani is impleaded in the suit,
the said finding of defaulter cannot be wished away as admittedly she never
tendered any rent to the plaintiff- landlord at any point of time.
CRP 520/2015 & CRP 526/15 Page 24 of 26
34) As a result, the first appellate court is found to have exercised
jurisdiction with material irregularity by incorrectly appreciating the facts and law.
It also failed to exercise jurisdiction vested in it by law by omitting to appreciate
that the specific pleading of the plaintiff in the suit was that the plaintiff
recognized only the defendant No.2 as proprietor of defendant No.1 shop. But
defendant No.3 impleaded herself in the suit, signed and filed written statement
and in evidence, took a plea that she was the proprietress of defendant No.1
shop. The defendant No.2, by filing TS No. 7/2013 separately, by arraying
defendants No.1 and 3 as proforma respondents, established that defendant
No.3 was the proprietor of defendant No.1 firm. On the other hand, as suit was
also filed by arraying the tenant firm as defendant No.1, the suit was
maintainable under the provisions of Order XXX Rule 10 CPC. Thus, to sum up,
the non- joinder of Smt. Rita Lalwani is not fatal to the suit and the plaintiff
cannot be non-suited on the ground of non- joinder of Smt. Rita Lalwani as one
of the defendants in the suit. Late Motilal Achantani died on 29.06.2004, but
since 01.06.2004, the plaintiff had been treating Rakesh Kumar Achantani as the
proprietor of defendant No.1 firm. Yet by ignoring all these, the learned first
appellate court is found to have substituted its view over the judgment passed by
the learned trial court, which is not sustainable by any evidence on record. The
learned first appellate court failed to exercise jurisdiction to appreciate exhibits
filed by defendant No.3, which though contrary to the pleadings, is sufficient to
disprove the plea of the defendant No.2 that Motilal Achantani was the original
tenant and that the tenancy was inherited by the defendants No.2, 3 and Smt.
Rita Lalwani.
35) Therefore, in view of the discussions above, the TS No.2/2008 is found
to be maintainable and the suit is not hit by non- joinder of Smt. Rita Lalwani.
The defendants No.1, 2 and 3 in TS No. 2/2008 are liable to be evicted on the
ground that they are defaulter in payment of monthly rent to the petitioner-
plaintiff for the period commencing from October, 2004. However, as rent upto
CRP 520/2015 & CRP 526/15 Page 25 of 26
31.12.2004 had become barred by limitation, the decree for payment of rent
from 01.01.2005 till 31.12.2007 amounting to Rs.36,000/- as well as pendente
lite and future rent at the rate of Rs.1,000/- per month as passed by the learned
Court of Munsiff No.2, Dibrugarh, is restored. The decree for eviction of the
defendants and for recovery of khas and vacant possession of the suit premises
described in Schedule appended to the plaint, as passed by the said learned trial
court is also restored.
36) Consequently, the first appellate judgment and decree dated
10.09.2015 passed by the learned Civil Judge, Dibrugarh in TA No. 4/2013 and
TA No. 7/2013 are both set aside and the judgment and decree passed by the
learned Court of Munsiff No.2, Dibrugarh, in TS No. 2/2008 is restored.
37) As the Defendant have stated that their firm is in business in the suit
premises since the year 1946, this court is inclined to give time till 31.12.2017
from today to vacate the suit premises, subject to the following conditions:
i. The defendants shall all bind themselves and shall also deposit the
decreetal sum as decreed before the learned Court Trial Court within a
period of one month from today;
ii. Within one month from today, the defendants shall submit an
unconditional undertaking in writing before the learned Trial Court, i.e.
Court of Munsiff No.2, Dibrugarh, binding themselves to –
1) vacate the suit premises on or before 31.12.2017;
2) not to sub-let or part with the possession of the suit premises of
any part thereof to any other third party and/or to hand over the
suit premises to anyone other than any the petitioner- plaintiff;
3) not to cause any nuisance or any other disturbance and/or cause
any damage to the suit premises in the meantime till they vacate
the same on or before 31.12.2017.
iii. Taking judicial notice of the sky-high market rent now prevailing, and
as laid down by the Hon’ble Apex Court in the case of Rattan Arya V.
CRP 520/2015 & CRP 526/15 Page 26 of 26
State of Tamil Nadu, AIR 1986 SC 1444: (1986) 3 SCC 385, in the said
undertaking, this Court also directs that the Defendants shall also bind
themselves to henceforth pay monthly rent of Rs.4,000/- per month
every month to the Petitioner- Plaintiff, which shall not constitute any
further tenancy or create any right whatsoever in favour of any of the
defendants.
38) It is made clear that if any of the defendants does not give an
undertaking to bind themselves on any of the above conditions mentioned in
paragraph- 37 (i), (ii) and (iii) above, or in the event if any of those conditions
are violated or not complied with, the petitioner- Plaintiff shall become entitled to
enforce the decree even prior to 31.12.2017.
39) This revision stands allowed. The parties are left to bear their own
cost all throughout.
40) Let the LCR be returned back.
JUDGE
Mkumar.