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2000 DIGILAW 1391 (ALL)

United Hotels Alias-r-alias v. Irtiza Hussain

2000-11-06

I.M.QUDDUSI

body2000
Judgment I.M. Quddusi, J. (1) The above revisions have been filed against the different orders passed by the Judge, Small Causes Court (District Judge), Denradun in S.C.C. Suit No. 41 of 1974, Irtiza Hussain vs. Ram Prasad. Since these revisions have been filed in connection with one S.C.C. suit, therefore, they are being disposed of by a common judgment. (2) Civil Revision No. 54 of 1996 has been filed against the order dated 28.10.1996 passed by the learned District Judge rejecting the application of the defendant-revisionist (Application No. 3022-C) by which prayer for amendment in written statement was made. Civil Revision No. 388 of 19% has been filed against the order of same date passed on the applications of defendant-revisionist (Application Nos. 3016-C, 3024-C and 3025-C) by which the prayer for making additional issues and seeking interrogatories was rejected. (3) Civil Revision No. 30 of 1997 has been filed against the order passed on the same date by which the application No. 3009-C filed by R. Srinivas Murthy for amendment under Order I, Rule 10(2) CPC read with Section 151 was rejected. (4) Civil Revision No. 66 of 1997 has been filed against the order dated 10.10.1996 passed by the District Judge by which the application No. 2084-C of the defendant-applicants for amendment in written statement was rejected. I have heard learned Counsel for the parties. (5) First of all this is a matter of serious consideration that the SCC suit in question is pending since 1974 and more than 3000 applications have been filed. It is also to be noticed that all the applications have been moved after the closure of the evidence by the parties and at the stage when the case was fixed for final arguments. Hence at this stage if an application is moved the same is liable to be considered in the light of its necessity to move the same. (6) Application No. 3022-C was jointly filed by the defendant No. 2 and 3 who are revisionists before this Court for seeking amendment in the written statement. Earlier also the defendant No. 2 moved an application for amendment but the same was not pressed and got dismissed on 24.10.1996. Thereafter, joint application in question has been moved later on. The amendment application has been moved on the ground that Jan Mohammed was the owner of Hakman Estate. Earlier also the defendant No. 2 moved an application for amendment but the same was not pressed and got dismissed on 24.10.1996. Thereafter, joint application in question has been moved later on. The amendment application has been moved on the ground that Jan Mohammed was the owner of Hakman Estate. Jan Mohammed had one son namely Razzak who had also one son namely Sultan Mohammed. Jan Mohammed had gifted the estate to his grand-son Sultan Mohammed. After the death of Sultan Mohammed, 4 Aana share went to his widow Sarvari Khatoon while 12 Aana share reverted back to Razzak Mohammed. Razzak Mohammed transferred his share to Zahida Khatoon in lieu of her dower, Sarwari Khatoon sold 2 paisa share out of her share to Raziunnisha who in turn transferred this 2 paisa share to Irtiza Hussain and that Sarwari Khatoon sold her retraining 7/32nd share to Irtiza Hussain in the year 1982. Zahida Khatoon orally gifted a cottage known as Poweys cottage to Irtiza Hussain and Lawrence Bank Building to Murtuza Hussain. Murtuza Hussain is the previous husband of Zahida Khatoon and plaintiff No. 1 and 3 are his sons and that Zahida Khatoon re married Razzak Mohammed. It was contended that in view of these facts the suit in its present form is not maintainable as the plaintiffs cannot be the owners and landlords of the entire Hakman Estate. The learned District Judge has ob served in his order that defendant No. 3 appeared as defence witness in the case and in Paragraph 12 of his written statement he has admitted the fact that the plaintiffs are the landlords and in this situation, it becomes irrelevant where and when interest or part of interest in the suit property was transferred from one person to other and in this suit for rent and eviction, the ownership is not to be considered. (7) At this stage the revisionist want to take the plea that the plaintiff is a fictitious person and in fact the real person namely Sarwari Khatoon has migrated to Pakistan in the year 1946-47 and never came back to India. (7) At this stage the revisionist want to take the plea that the plaintiff is a fictitious person and in fact the real person namely Sarwari Khatoon has migrated to Pakistan in the year 1946-47 and never came back to India. While opposing the application on the side of the plaintiffs it is denied and mentioned that she is alive and living at her permanent address i.e. Burlington Hotel, Lucknow and the facts mentioned in the amendment application, as new disclosures were from the facts already available in the documents on record of the case. The defendant No. 3 is the sub-tenant and could not raise all these pleas. (8) The suit is pending since 1974. The plea that the plaintiff No. 4 Sarwari Khatoon had migrated to Pakistan in the year 1946-47 and Sarwari Khatoon is a fictitious person could be taken earlier also and it was not a secret fact, if it was really a fact. Hence, I have come to the conclusion that only to adopt dilatory tactics this plea has been taken which is an after thought. Therefore, I am of the view that no interference is required in the order passed by the learned District Judge/judge, Small Causes Court. The revision No. 54 of 1996 is, therefore, liable to be dismissed. In Civil Revision No. 388 of 1996, the defendants No. 2 and 3 who are revisionists before this Court had moved application No. 3016-C, for framing of additional issues to the effect as to whether the sale-deed referred in Paragraph 10 of the plaint in favour of Irtiza Hussain is valid, if so its effect. (9) As discussed above, the status of tenant and landlord has not been specifically disputed and the question of title or ownership cannot be gone into, as the suit in question is for recovery of rent and ejectment. (10) Once defendant No. 3 in Paragraph 12 of his written statement has admitted the fact that the plaintiffs are the landlords, the same cannot be denied now at this stage. Once a party has admitted the fact it is not open for him at a subsequent stage to deny the same. It is also irrelevant for the purpose of decision of a suit for recovery of arrears of rent and ejectment to decide the ownership, which can also not be decided in such a suit. Once a party has admitted the fact it is not open for him at a subsequent stage to deny the same. It is also irrelevant for the purpose of decision of a suit for recovery of arrears of rent and ejectment to decide the ownership, which can also not be decided in such a suit. Hence, there was no relevancy to decide additional is sues. Hence I am of the opinion that the learned District Judge/judge, Small Causes Court has rightly rejected the application for framing of additional issues. Therefore the revision No. 388 of 1996 is also liable to be dismissed. Civil Appeal No. 30 of 1997 has been filed by R. Srinivas Murthy, revisionist against the order rejecting the application for impleadment, being Application No. 3009-C. (11) The impleadment application was moved on the ground that the applicant is in possession of two shops included in the litigation in question. He claimed to be the tenant of these shops since 1958 and entered in the shop with the consent of Smt. Zahida Khatoon, plaintiff No. 2 and he is paying rent to M/s. United Hotels Pvt. Ltd. which is in accordance with the conditions of the lease deed executed in favour of M/s. United Hotels and in case decree is passed against United Hotels, he will also be ejected. Learned District Judge/judge, Small Causes Court has rejected his application holding that the applicant neither appears to be necessary nor proper party in the case. To my mind, a person claims his occupation in such a situation in either of two ways. One is that he can claim possession over the property occupied by him independently. The other way is that he can claim his possession on behalf of the party who has occupied the accommodation validly. (12) In the present situation, in case a person claims his rights independently then of course without a decree of eviction against him, he cannot be evicted and for his purpose he should be a party in the suit without that no decree can be passed against him. Moreover, for termination of tenancy a notice under Section 106 of Transfer of Property Act would also be required. Moreover, for termination of tenancy a notice under Section 106 of Transfer of Property Act would also be required. In the second situation i.e. claiming rights on behalf of a person legally entitled to occupy the premises, would be dependent on that person and he could not claim his independent rights in such a situation and in case person on whose behalf he is claiming his right is a party to the suit and a decree is passed for eviction against him, certainly he will have to vacate the same as he has no independent claim to occupy the property in that situation. In view of the above, I am of the opinion that the revisionist was not necessary party as he has no independent claim over the shop in question allegedly occupied by him, rent of which is being paid to United Hotels, who is a party to the suit in question. Hence, I find no illegality or jurisdictional error in passing the order under revision rejecting the application by the Judge Small Causes Court. Therefore, this revision is also liable to be dismissed. (13) Civil Revision No. 66 of 1997 has been filed alongwith application for condonation of delay in filing the revision. The delay has been condoned vide order dated 7.2.2000 passed by this Court. The revision has been filed against the order rejecting the application No. 20840-C, seeking amendment in the written statement. (14) The defendant No. 3 moved the amendment application and according to the allegations of the plaintiffs, defendant No. 3 was the sub-tenant. Defendant No. 3 wanted to raise plea of further encroachment by the plaintiffs and wanted to raise a plea defending the rights of defendant No. 1 and 2. In the amendment application it has been mentioned that D.W. 1 has in his statement mentioned about these encroachments. Learned District Judge has held that the pleadings are not to flow from the evidence but evidence is to be confined to the pleadings and hence the proposed amendment do not appear to be bona fide. (15) Further defendant No. 3 wanted to raise a plea of restoration of possession to defendant No. 1 and 2. Learned District Judge has held that the pleadings are not to flow from the evidence but evidence is to be confined to the pleadings and hence the proposed amendment do not appear to be bona fide. (15) Further defendant No. 3 wanted to raise a plea of restoration of possession to defendant No. 1 and 2. Learned District Judge has held that this relief cannot be granted in the present case and in case the defendant No. 1 and 2 feel that they were forcibly dispossessed in any illegal manner from any portion, they have a right to bring separate action for getting their possession restored. It has also been observed by the learned District Judge that the proposed amendments were vague and ambiguous for want of particulars, time and date when these encroachments were made as learned Counsel for the plaintiffs had urged before the Court below that some of the encroachments mentioned in the proposed amendment have already been mentioned in the written statement filed at the beginning of the suit. (16) In view of the above mentioned facts and circumstances, Civil Revision No. 66 of 1997 is liable to be dismissed even at the admission stage, as no illegality, impropriety or jurisdictional error has been found in the impugned order of the learned District Judge/ judge, Small Causes Court. In the result, the above Civil Revisions (Civil Revisions No. 54 of 1996, 388 of 1996, 30 of 1997 and 66 of 1997) are dismissed. No order as to costs. (17) It is provided that the revisionist may challenge the orders passed at interlocutory stage at the time of challenging the final decision in the matter, if they are so advised. Revisions dismissed.