Cyriac John v. Jacob Cherian — 1997 DIGILAW 191 (KER)

Judgment :- Ramakrishnan, J. These two revisions arise out of an eviction petition RCOP 23 of 1983, filed by the petitioner in C.R.P. 454 of 1993 landlord, before the Rent Control Court, Kottayam under S.11(3),11(4) (i) and 11(4) (h) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the act). Originally there were only three cr. petitioners impleaded as tenants of the building sought to be evicted. Thereafter 2 more persons were impleaded as addl. cr. Petitioners 4 and 5. During the pendency of the revision cr. petitioners 1 and 5 died and their legal representatives have been impleaded as addl. respondents 6 to 13 in CRP 454 of 1993. RCOP was dismissed by the Rent Control Court. Both the petitioner and cr. petitioners filed appeals, numbered as RCA 105 and 106 of 1989 respectively. Both appeals were dismissed by a common judgment. CRP 454 of 1993 is a revision filed by the landlord against the dismissal of RCA 105 of 1989. CRP 1115 of 1993 is the revision filed by the cr. petitioners against the dismissal of RCA 106 of 1989. We are disposing of the revisions by this common order as the revisions arise out of one and the same proceedings. We may refer to the parties in the order in which they are arrayed in CRP 454 of 1993. 2. The building in respect of which the eviction petition was filed is a two storied building with 20 rooms, each having an attached bath room and toilet and abutting K.K. Road, opposite to the District Hospital, Kottayam. The said building and another building with door Nos, 6 and 8, both situated in a plot of land measuring 741/4 cents were let out by the petitioner to late A.C. Jacob on 1.3.1956, the rent being Rs. 1000/ - per month. Sri. Jacob conducted a Bar attached Hotel by name 'Hotel Ambassador' in the buildings. Jacob died on 19.2.1978. The hotel was being conducted even after his death. While so, on 16.1.1980, the petitioner sold 26.596 cents of land from 74 I/ 4 cents and the building with door Nos. 6 and 8 and a car shed to respondents 1 to 3 who are the sons of Shri. Jacob. Thereafter also the rent of the building was revised and fixed as Rs. 1000/-. 3. While so, on 16.1.1980, the petitioner sold 26.596 cents of land from 74 I/ 4 cents and the building with door Nos. 6 and 8 and a car shed to respondents 1 to 3 who are the sons of Shri. Jacob. Thereafter also the rent of the building was revised and fixed as Rs. 1000/-. 3. RCOP was filed alleging that the petitioner needs the building for the purpose of conducting a lodging house by his two sons who are unemployed and dependent upon him as the sons are not owning and possessing any other building either as owners or tenants. It was also alleged that the respondents have made some unauthorised constructions 6n the top portion of the building whereby the value and utility of the building were materially and permanently destroyed and that they have sub let two rooms in the building without the knowledge and consent of the petitioner. It was based upon the above allegations that the RCOP was filed. Originally RCOP was filed only against the 3 sons of late Jacob as the sole tenants of the petition schedule building. Each of them was described as partner, Hotel Ambassador, K.K. Road, Kottayam. We may also quote here itself the averments contained in paragraph 3 of the petition as it may be relevant to refer to it specifically while discussing the point arising for consideration in the revisions. They are thus: "Hotel Ambassador conducted formerly by late Sri. A.C. Jacob in the buildings is now being conducted by his sons, Respondents as partners with first respondent as Managing Partner, since the death of the said A.C. Jacob in 1978". The prayer in the petition was to direct respondents 1 to 3 to put the petitioner in possession of the petition schedule building. 4. Respondents 1 to 3 contested the petition by filing a detailed written objection dated 7.12.1993. Apart from disputing the grounds alleged in the petition and the bonafides of the need alleged, they have taken up a contention to the effect that the petitioner is not entitled to evict them. It is to be noted that such a contention was raised without indicating the specific ground on which it was raised. Apart from disputing the grounds alleged in the petition and the bonafides of the need alleged, they have taken up a contention to the effect that the petitioner is not entitled to evict them. It is to be noted that such a contention was raised without indicating the specific ground on which it was raised. It is further relevant in this connection to note that respondents 1 to 3 have not raised any objection regarding the description contained in the cause title to the effect that they are partners of Hotel Ambassador of the allegation specifically made in paragraph 3 of the petitioner. It is also important to note that respondents 1 to 3 have not raised any specific contention that they are not the only persons to be impleaded in the petition as tenants or that there are other persons to be impleaded as necessary parties. However, after closing the evidence and when the case was posted for hearing on 26.9.1985, respondents 1 to 3 have filed a petition for receiving in evidence two documents produced along with the said petition. One of the documents was a deed of partnership and the other was the income tax returns of the firm. The above documents were produced mainly because during the examination of RW.1 he had admitted that Hotel Ambassador is a partnership firm and he is having the Partnership Deed and the same can be produced, if necessary. On such production of the Partnership Deed, according to the petitioner he came to know that late Jacob has three sons and two daughters and that from 1977 onwards Jacob, his children and 4th respondent were conducting the hotel business forming themselves into a firm. After the death of Jacob, one of the daughters retired from the partnership on 21.2.1978 and the firm was reconstituted with respondents 1 to 3 and the two persons impleaded as respondents, 4 and 5. As such LA. 3518 of 1985 was filed to implead two other partners also when the RCOP was posted for hearing. However, that application was dismissed on 26.9.1985. After dismissing the said I.A. RCOP was also dismissed on merits on 30.6.1985. Against the dismissal of LA. and RCOP two appeals were filed asrcas 65 and 66 of 1985. Both appeals were allowed by a common judgment. However, that application was dismissed on 26.9.1985. After dismissing the said I.A. RCOP was also dismissed on merits on 30.6.1985. Against the dismissal of LA. and RCOP two appeals were filed asrcas 65 and 66 of 1985. Both appeals were allowed by a common judgment. The appellate Authority allowed the I. A. finding that the two other partners of the firm Hotel Ambassador are also necessary parties to the RCOP and the disposal of the RCOP without them on the party array cannot be legally sustained. Accordingly, respondents 4 and 5 were allowed to be impleaded and the RCOP was remanded for fresh consideration and disposal in accordance with law. After remand, 4th respondent who is not a legal heir of Jacob, but impleaded in his capacity as a partner of the firm filed a counter affidavit raising inter ax's a contention in paragraph 9 to the effect that" all the proper and necessary parties who are the real tenants have not yet been impleaded". However the reason for raising such a contention and the names of the parties to be impleaded as tenants were not indicated in the counter affidavit. 5. On remand, when the matter came up for arguments, an additional issue was framed during non-joinder of necessary parties on the basis of the contention to that effect raised by the 4th respondent. The Rent Control Court, on a detailed consideration of the pleading and evidence in the case, found that the petitioner has established the need alleged in the petition and its. bonafides and that the tenants are not entitled to the protection of the second proviso to S.11(3) of the Act. As regards the grounds under S.11(4)(i), it was found that the petitioner has not adduced any evidence at all. Regarding the ground under S.11(4)(h) the same was not pressed at the time of hearing. However, the Rent Control Court dismissed the RCOP finding that the tenancy right belonging to late Jacob had devolved upon his children and that two daughters of late Jacob who are necessary parties to the proceedings had not been make parties to the RCOP. Against the dismissal of RCOP, on the basis of the above findings, both the tenants and landlord filed appeals as RCA s 105 and 106 of 1989 respectively. Against the dismissal of RCOP, on the basis of the above findings, both the tenants and landlord filed appeals as RCA s 105 and 106 of 1989 respectively. As per the common judgment impugned in the revisions, the appellate Authority has dismissed both the appeals confirming the findings of the Rent Control Court. (Paras. 6 to 18 omitted being statement of facts) 19. Even assuming that late Jacob was the tenant till his death and the tenancy right being heritable under the Act, had devolved in law on all his children on his death in 1978, still we are inclined to take the view that the dismissal of the RCOP on the ground of non joinder of necessary parties is unsustainable in the peculiar facts and circumstances of the case. In spite of the absence of a specific plea on behalf of respondents 1 to 3 and 5 that Mrs. Mary Chacko had a share in the tenancy right, if the authorities were of the view that Mrs. Mary Chacko had tenancy right along with her brothers and sisters who are on the party array, the petitioner should have been given a further opportunity to implead her also as a party to the RCOP before dismissing it on that ground, accepting his prayer to that effect, in the facts and circumstances of the case. The prayer should not have been declined on the ground of either delay or negligence or recalcitrance on his part as has been done by the authorities below, especially the appellate Authority. In this view of the matter, we would have given the petitioner an opportunity to implead Mrs. Mary Chacko, the only daughter who is not on the party array also as a party to the RCOP by ordering a remand of the case. However, in this case, it may not be necessary to do so in view of the conclusion we are inclined to take regarding the applicability of the doctrine of substantial representation to this case, differing from the review taken by the appellate Authority in its judgment. 20. As regards the applicability of the doctrine of substantial representation, the Rent Control Court has not considered the question at all. The appellate Authority on the other hand, has considered the question in great detail and has held that the said doctrine has no application to the facts of the case. 20. As regards the applicability of the doctrine of substantial representation, the Rent Control Court has not considered the question at all. The appellate Authority on the other hand, has considered the question in great detail and has held that the said doctrine has no application to the facts of the case. While holding that the doctrine of substantial representation has no application to the instant case, the appellate Authority has relied mainly upon the decision reported infinite Commercial Banfev. Dharam Pal Singh (AIR 1989 HP 56) and Joseph v. Joseph (1958 KLT 957) wherein this court has held that the doctrine cannot apply to a suit or other proceedings when it is laid. The appellate Authority proceeded on the basis that the doctrine will apply only in a case where, pending proceedings impleadment of legal representatives of a deceased party is sought for. The appellate Authority has also found that since the petitioner was fully aware of of the existence of a legal heir and has not chosen to implead such legal heir, there is no question of applying the doctrine to the facts of the case. Further, it was also found by the appellate Authority that the respondent cannot be treated as representing the interest of Mrs. Mary Chacko, daughter of late Jacob, who has not been impleaded in the proceedings as a party since, respondents 1 to 3 were also not impleaded in the proceedings in their capacity as legal heirs of deceased Jacob. 20A. As regards the law relating to impleadment of legal representatives of a deceased party in a pending proceedings, Supreme Court has in Day a Ram v. Shy am Sundari (AIR 1965 SC 1049) stated thus:. The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bonafide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, mere is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record.." Further in Mohd. Sulaiman v. Mohd. Sulaiman v. Mohd. Ismail (AIR 1966 SC 792) following Day* Ram's case (supra) the Supreme court has specifically held thus: "In a suit instituted against the heirs of a deceased debtor, it is the creditor, who take"if the responsibility to bring certain persons as heirs and legal representatives ( the deceased on record. If he has proceeded bonafide and after due enquiry and under a benefit that the persons who are brought on record are the only legal representative, it would make no difference in principle that in the former case, the heirs have been brought on the record during the pendency of the suit, the creditor having died since the institution of the suit, and in the other at the instance of the plaintiff certain persons are impleaded as legal representatives of the deceased person. In either case, where after due enquiry cretin persons are impleaded after diligent and "bonafide enquiry in the genuine belief that they are the only persons interested in the estate, the whole estate of the deceased will be duly represented by those persons who are brought on the record or impleaded. and the decree will be binding upon the entire estate. This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real trial, or that the absent heir Bad a special defence which was not and could not be tried in the earlier proceeding". (emphasis supplied) 21. The Supreme Court has specifically pointed out in the above decision that representation of the estate of a deceased person in a proceeding is a matter of procedure and has further observed thus in the same decision: " If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bonafide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interest in the estate. The Court will undoubtedly investigate, if invited, where the decree was obtained by fraud, collusion or other means intended to overreach the court. The Court will undoubtedly investigate, if invited, where the decree was obtained by fraud, collusion or other means intended to overreach the court. The court will also enquire whether there was a real consent in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however, on account of a bonafide 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 even partially, in the absence of the fraud or collusion or other ground which taint the 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 record. This principle applies to all parties irrespective of their religious persuasion". The above two decisions have been followed consistently in later decision of the Supreme Court reported in Dolai Maliko v. Krushna Chandra (AIR 1967 SC 49), I.T. Officer Gudur v. M. Sulochanamma (AIR 1971 SC 37), Harihar Prasad v. Balmiki Prasad (AIR 1975 SC 733) and N. Jayaram Reddi v. Rev. Divisional Officer (AIR 1979 SC 1393). 22. In Dolai Maliko 's case (supra) on the death of one of the plaintiffs appellants in the appeal his widow and a major son were substituted on record as heirs. It was later discovered that; the deceased had left some other heirs besides the two recorded in the 1997(1) appeal. The respondents raised an objection that as some of the heirs of the deceased had been left out and there could be no question of want of knowledge of the existence of those heirs 6n the part of the widow and son who had applied for being brought on record and as such the appeal is abated. The Supreme Court has with reference to the above facts of the case observed thus: "In such a case, there is no question of any diligent or bonafide enquiry for the deceased appellant's heirs must be known to the heirs who applied for being brought on the record. The Supreme Court has with reference to the above facts of the case observed thus: "In such a case, there is no question of any diligent or bonafide enquiry for the deceased appellant's heirs must be known to the heirs who applied for being brought on the record. Even so, we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or .that against the absent heir there was a special case which was not and could be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist". (emphasis supplied) In Jayaram Reddi's case (supra) Desai, J. has formulated 5 conclusions after analysing various decisions rendered by the various courts under Rules 3 and 4 of O. XXII of the CPC. Two of them are relevant and can usefully be quoted. They are the following: "(1) If all legal representatives are not impleaded after diligent search and some are brought on record and if the Court is satisfied that the estate is adequately represented meaning thereby that the interests of the deceased party are properly represented before the court, an action would not be abate. (2) If the legal representatives is on record in a different capacity, the failure to describe him also in his other capacity as legal representative of the deceased party would not abate the proceeding". 23. (2) If the legal representatives is on record in a different capacity, the failure to describe him also in his other capacity as legal representative of the deceased party would not abate the proceeding". 23. From the above analysis, it is fairly clear that the principle of substantial representation applies equally to cases where legal representatives are impleaded in a pending proceeding to represent the estate of the deceased or where suits or other proceedings are laid against, the legal representatives of a deceased person so as to bind the estate of the deceased. Of course, in both cases, the conditions required to be satisfied for the application of the principles must be satisfied and the party who omits to implead all the legal representatives take the risk of a challenge at the instance of the excluded legal representatives on limited grounds mentioned in the decisions. In the light of the statement of law on the point contained in Mohd. Sulaiman's case (supra) the decision in Joseph v. Joseph (1958 KLT 957) cannot be treated as laying down correct law on the point any more. 24. Bearing in mind the relevant principles as analysed above contained in the decisions of the Supreme Court, we may now examine whether it is a case where the principle of substantial representation can legitimately be applied or not. 25. In this case, the petitioner has at all relevant time proceeded on the basis that the tenant of the building at the time of death of Jacob as well as at the time of filing of RCOP 23 of 1988 was and is a firm originally constituted by late Jacob and later reconstituted on his death with respondents alone as its partners. It was for that reason the petitioner has not chosen to implead Mrs. Mary Chacko as a necessary party. If it is held that that was an erroneous assumption, non-impleadment of Mrs. Mary Chacko in the proceedings can only be treated as an omission due to a bonafide mistake, in the facts and circumstances of the case. At any rate, it cannot be held that omission to implead all the heirs of late Jacob was because of any failure or lack of care or caution on the part of the petitioner to make bonafide and due enquiries to ascertain the particulars of the heirs of late Jacob before filing the RCOP. At any rate, it cannot be held that omission to implead all the heirs of late Jacob was because of any failure or lack of care or caution on the part of the petitioner to make bonafide and due enquiries to ascertain the particulars of the heirs of late Jacob before filing the RCOP. All the heirs of late Jacob were parties to the proceedings as partners of the firm except Mrs. Mary Chacko. They have in fact defended the proceedings taking all possible contentions claiming that they are the tenants of the building in question including the statutory protection available to tenants under the Act. They have not contended that Mrs. Mary Chacko had rights as a co-tenant or joint tenant or in any other capacity and that she should be impleaded as a necessary party. They have also no case that the firm of which they were partners was not having the tenancy right as one of its assets. As such if it is to be held as held by the authorities below that late Jacob was the tenant of the building and on his death, the tenancy right has devolved on his legal heirs, it is a case where all the heirs, except Mrs. Mary Chacko, were made parties to the proceedings with all bonafides. There is also no scope for pleading any fraud or collusion between the petitioner and the heirs impleaded in the proceedings. The heirs who were made parties to the proceedings had full opportunity to defend the tenancy right. Mrs. Mary Chacko, who was once a partner of the firm and has gone out of the firm at the time of reconstitution has also not chosen to get herself impleaded in the proceedings to claim any right in the tenancy which is sought to be put an end to as per the eviction proceedings. In the circumstances, we find that the authorities below have acted quite illegally and irregularly in dismissing the petition on the ground of non joinder of Mrs. Mary Chacko, one of the heirs of late Jacob, finding that she is a necessary party and that the principle of substantial representation is not applicable to the facts of the case. In the circumstances, we find that the authorities below have acted quite illegally and irregularly in dismissing the petition on the ground of non joinder of Mrs. Mary Chacko, one of the heirs of late Jacob, finding that she is a necessary party and that the principle of substantial representation is not applicable to the facts of the case. We are inclined to take the view that even if the tenancy right of late Jacob had vested in his heirs the interest of all the heirs including that of Mrs. Mary Chacko was represented by respondents 1 to 3 and 5 and as such there was substantial representation of the estate of the deceased Jacob in the proceedings and 1997(l) 26. Before concluding the discussions, we may also deal with the two decisions relied upon by the learned counsel for the respondents. We find that the decision relied upon namely Textile Assn. (India) Bombay Unitv. Balmohan GopalKurup (AIR 1990 SC 2053) and Mahmood v. Kerala Corporation (AIR 1945 Madras 181) may not be of any assistance to the learned counsel in substantiating his contentions in this case. Textile As soon case (supra) was a case where an ex parte order of eviction was obtained in an eviction proceedings against 2 out of 3 heirs of a tenant of a building and the excluded heir has sought for a declaration that the expiate order is not binding on him by filing a fresh suit. The fact that the order of eviction passed in that case was an ex parte one and that it was at the instance of the excluded heir that the order was set aside by the Supreme Court would show that on facts the said decision is clearly distinguishable and cannot be applied to the facts of the case on hand. 27. Similarly, we find that the decision in Mahamood's case (supra) also may not apply to the facts of the case on hand. Being a proceeding initiated bonafide against all the heirs of late Jacob except Mrs. Mary Chacko and defended by them raising all possible defences and without raising a specific contention that there are other parties to be impleaded as co-tenants or joint tenants, it may not be possible to hold the an order of eviction passed against the respondents will be a'brute fulgent as held in Mahmood's case, (supra). Mary Chacko and defended by them raising all possible defences and without raising a specific contention that there are other parties to be impleaded as co-tenants or joint tenants, it may not be possible to hold the an order of eviction passed against the respondents will be a'brute fulgent as held in Mahmood's case, (supra). It the view which we have taken regarding the applicability of the principle of substantial representation it is possible to pass an order of eviction binding even on the excluded heir and as such there is no scope to apply the decision to the facts of the case. In this connection it may be useful to refer to the following statement of statement of law contained in Jayaram Reddi 's case (Supra) regarding the nature of a decree passed against a dead person: "The basis fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So, while the law treats such a decree as a nullity qua the legal representatives of the deceased defendant or respondent there is nothing to prevent him from deciding that he will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits...". Though the principle is one stated with reference to a decree passed against a dead person, it may have application even in a case like the one on hand where an order or Sudarsanan any decree is sought for against some of the heirs of a deceased person excluding some others. In the view expressed by the Supreme Court with regard to a decree passed against a dead person it may not be possible to contend that a decree passed in a proceeding initiated bonafide against some heirs of the deceased alone will always be totally ineffective or 'brutum fulmen' as contended by the learned counsel for the respondents relying upon the decision in Mahmood's case (supra). At best a decree or order passed in such proceedings can be treated if at all as one liable to be avoided by the excluded legal heir at his option and subject to the conditions indicated in the decisions of the Supreme Court referred to above. We may also refer to the decision reported in United Commercial Bank v. Dharam Paul Singh (AIR 1989 HP 56) relied strongly by the appellate Authority as an authority for the position that the doctrine of substantial representation applies only to a pending proceeding. On going through the above decision, we find that the said decision is only an authority for the proposition that O. XXIII R.4 may not be applicable to a case where impleadment of legal representatives is sought for of a party who has died prior to the institution of the suit or proceedings itself. In our view that decision cannot be treated as an authority for the proposition that by the doctrine of substantial representation may not apply to a case where a suit or other proceedings is laid against some of the legal representatives alone. 28. In the circumstances and for the reasons given above, we would set aside the orders under challenge to the extent of rejection of the prayer for eviction and would allow RCOP 23 of 1990 on the ground of bonafide need alleged by the petitioner reversing the finding that the petition is liable to be dismissed for non joinder of necessary parties. As such there will be a direction to the tenants (respondents 1 to 5 in RCOP 23 of 1990) to put the landlord (petitioner in RCOP 23 of 1990) in possession of the petition schedule building within a period of two months from today. C.R.P.454 of 1993 is thus allowed. CRP1115 of 1993 is dismissed as without any merit The parties are directed to bear their respective costs.