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2005 DIGILAW 568 (GUJ)

BATULBAI JAFARALI v. MARIYAM ABBASBHAI

2005-08-18

R.S.GARG

body2005
( 1 ) THE dissatisfied tenants being aggrieved by the judgement and decree dated 25. 09. 1996 passed in Regular Civil Appeal No. 15 of 1991 by the learned Assistant judge, Morvi reversing the judgement and decree dated 30. 04. 1991 passed in Civil suit No. 144 of 1982 by the Court of learned Civil Judge (Junior Division), morvi, is before this Court under section 29 (2) of the Bombay Rents, Hotel and lodging House Rates Control Act, 1947 (hereinafter referred to as "bombay Rents act" ). ( 2 ) THE facts in the nutshell are that one Abbasbhai has leased out the premises to one, Alibhai Rajbhai. After the death of Abbasbhai, his legal representatives filed a suit against the legal representatives of Alibhai submitting, inter alia, that Vora Jafarali and Vora Mohmadali Alibhai had succeeded to the tenancy being the sons of deceased-Alibhai Rajbhai, but a part of the premises has been sublet by them in favour of Fatmabai, who happens to be married daughter of the original tenant, Alibhai. Apart from this the ground of non payment of rent was also pressed into service. During pendency of the suit Vora Jafarali, son of Alibhai also died and his six legal heirs were substituted on record. The plaintiff, by way of amendment submitted before the Court that during pendency of the suit the tenant has constructed a house which is suitable for his residence, therefore also under section 13 (1) (l) of the Bombay Rents Act the tenants were liable to be evicted. The defendant submitted before the Court that the tenancy rights were succeeded by Vora Jafarali and Vora Mohmadali as sons and Fatmabai as daughter as joint tenants. They submitted that all the three were living together with the deceased-tenant, Alibhai Rajbhai, therefore, each of them had become tenant under section 5 (11) (c) of the Bombay Rents Act. The factum of sub-tenancy was denied and for the other ground it was submitted that in the year 1979 because of heavy floods the house belonging to Alibhai which was in existence when he had taken premises on lease suffered great damages and was virtually demolished, therefore, after getting the map sanctioned, same and similar house was constructed. The factum of sub-tenancy was denied and for the other ground it was submitted that in the year 1979 because of heavy floods the house belonging to Alibhai which was in existence when he had taken premises on lease suffered great damages and was virtually demolished, therefore, after getting the map sanctioned, same and similar house was constructed. It was submitted that when Alibhai had taken the suit premises on lease, the house which later on was washed in the floods was already in existence and Alibhai finding that it was not suitable for his whole family had opted for the suit house. ( 3 ) THE learned Trial Court, after hearing the parties found that Jafarali Mohmadali and Fatmabai succeeded to the tenancy under section 5 (11) (C) of the Bombay Rents Act and there was no sub-tenancy. It also observed that grounds under sec. 13 (1) (l) of the Bombay Rents Act was not available to the landlord to seek eviction of the tenant. ( 4 ) BEING aggrieved by the said judgement and decree the plaintiffs took up the matter in appeal. The learned Appellate Court allowed the appeal and set aside the judgement and decree passed by the learned Trial Court and decreed the suit on the ground of section 12 (1) and 13 (1) (l) of the Bombay Rents Act. Being aggrieved by the said judgement and decree, the tenants are before this Court. Learned counsel for the appellants, Vora Mohamadali Alibhai and the legal heirs of Vora Jafarali Alibhai submitted that from the cause title of the appeal memo it would clearly appear that Fatmabai, daughter of Alibhai who was joined as opponent no. 3 before the Trial Court was not joined as respondent in the Appellate Court. The submission is that if the Court has found that two sons and a daughter had jointly succeeded to the tenancy and the case of sub-tenancy was negatived, then the appeal should have been filed against all the defendants and if the plaintiffs chose not to file an appeal against one of the defendants, who had succeeded in the Trial Court, then the appeal would not be maintainable, because it would suffer non-joinder of necessary parties and because a person who has secured an order in his favour could not be heard. It is also submitted that in a case like the present, where the Appellate Court allowed the appeal in absence of necessary party, judgement and decree would lead to an inconsistent decree, because on one side Fatmabai would be held to be a tenant in possession and as the judgement and decree granted in her favour has not been challenged, she cannot be evicted, but at the same time in execution of the appellate decree the two brothers would be evicted. The submission is that in our judicial system inconsistent decrees cannot be allowed to stand. ( 5 ) LEARNED counsel for the respondent-plaintiffs submits that Fatmabai was joined as a party not in her capacity as a successor-tenant, but was joined as a sub-tenant. It is submitted that a sub-tenant neither is a necessary party nor a proper party in a suit for eviction between the landlord and the tenant. It is also submitted that non-joinder of Fatmabai, daughter of the deceased-tenant would not affect the merits of the matter, because decree has been granted on the ground available to the landlord under section 13 (1) (l) of the Bombay Rents Act. ( 6 ) IT cannot be disputed that an appeal is a continuation of a suit. The plaintiffs being dominus litis would be entitled to join the defendants as they want subject to the risk but they cannot be forced to join any particular person as a defendant. Nobody can force the plaintiff to join a particular party. Once the plaintiff joins a particular party and obtains judgement in his favour or against him, then such a party for the purposes of appeal would be a necessary party unless the plaintiff in his appeal gives up his right against a particular defendant and submits to the Court that he does not wish to join such a defendant as party-respondent because in such an appeal the plaintiff would not be claiming any reliefs against such defendant. In a given case when the plaintiff joins a particular party with a particular allegation and allegation is denied and a plea raised by the defendant that he is occupying the premises not as a sub-tenant but as a successor of the tenant, then the Court would be obliged to cast an issue and decide the question in light of section 5 (11) ( c) of the Bombay Rents Act. The Bombay Rents Act provides that tenant means any person by whom or on whose account rent is payable for any premises and includes in relation to any premises let for residence, any member of his family residing with the tenant at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of the agreement by the Court. In the present matter, the plaintiff alleged that defendant no. 3, Fatmabai, daughter of original tenant was inducted as a sub-tenant by the two sons of the deceased-Alibhai. Three defendants jointly submitted that Fatmabai was not a sub-tenant, but in fact she was in possession of the premises in her independent right as a successor of the deceased. ( 7 ) THE learned Trial Court has held that Fatmabai was residing with the deceased as his daughter and it also held that in relation to the premises which were let out for residence, Fatmabai would be deemed to be a tenant under sec. 5 (11) ( c) of the Bombay Rents Act. If according to the findings of the learned Trial Court the two brothers and the sister, namely, Fatmabai became joint tenants after death of Alibhai and such finding was recorded by the learned Trial Court to non-suit the plaintiffs on the ground of creation of sub-tenancy, then the said finding would be binding upon the plaintiffs, so also on the defendants. If the said finding is not challenged by the plaintiffs before the Appellate Court and he feels content and accepts that Fatmabai was also a tenant under section 5 (11) ( c) of the Bombay Rents Act and does not file any appeal against Fatmabai, then appeal against the two tenants, namely, Vora Mohmadali Alibhai and Vora Jafarali, son of Alibhai would not be maintainable because grant of appeal would certainly lead to inconsistent decrees. If the appeal filed by the landlord against two of the tenants only is allowed, then those two persons would be liable to be evicted, but the third tenant who has not been joined as a party-respondent in the appeal cannot be evicted, because the judgement in favour of the third person had attained finality. If the appeal filed by the landlord against two of the tenants only is allowed, then those two persons would be liable to be evicted, but the third tenant who has not been joined as a party-respondent in the appeal cannot be evicted, because the judgement in favour of the third person had attained finality. The landlord cannot seek a decree against some of the tenants leaving behind the other tenant, who now undisputedly is a joint tenant and because of the no challenge to the findings recorded by the Trial Court. In the present case, when the Trial Court had held that Fatmabai, a daughter of deceased was living jointly with the deceased and became a tenant under section 5 (11) ( c) of the Bombay Rents Act, then the plaintiff was obliged to join that joint tenant as a party respondent. It was for the plaintiff to accept the findings that she became joint tenant or continue to allege that she was a sub-tenant. In any case, present was not a case of a third party, where sub-tenant was not required to be joined, but present is a case where one of the legal representatives/ successors of the deceased-tenant was shown to be a sub-tenant. If the finding is that Fatmabai succeeded to the tenancy and became a tenant under section 5 (11) ( c) of the Bombay Rents Act, then the suit for eviction ought to have been filed against Fatmabai. In the present matter when no appeal has been filed against Fatmabai, the appeal filed against few of the joint tenants out of many, would not be maintainable. ( 8 ) FOR the reasons aforesaid, I hold that the appeal filed by the landlord against two of the joint tenants without joining the third tenant, namely, Fatmabai was not maintainable as passing of the decree in favour of the landlord would lead to making of inconsistent decrees. ( 9 ) THE judgement and decree passed by the learned Appellate Court deserve to be and are accordingly set aside. It is held that the appeal filed by the appellant-landlord was not maintainable, and the Court had no jurisdiction to proceed with the merits of the matter. The Revision is allowed. No costs. .