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2010 DIGILAW 609 (JHR)

Ramesh Chandra Arora v. Murlidhar Kapsime

2010-05-17

PRASHANT KUMAR

body2010
JUDGMENT Prashant Kumar, J.- This civil revision filed against the Judgment and Decree passed by Sub Judge-II, Koderma dated 14.9.2007 and 27.9.2007 respectively in Eviction Suit No. 08 of 1995, whereby and where under, the suit has been decreed against the petitioner and proforma opposite parties. 2. The original plaintiff-Smt. Sakuntala Devi was the owner/land lady of the suit premises, details of which given in Schedule-'A' of the plaint. It is further stated that the suit premises let out to the petitioner in the year 1970 on a monthly rent of Rs.221/-. It is further stated that at the time of creation of tenancy husband of original plaintiff was alive and he used to collect rent from the petitioner on behalf of original plaintiff and used to issue rent receipt. Further case of original plaintiff is that the petitioner and proforma opposite parties are member, of joint family property and they are carrying a joint family business in the name and style of Chhabra Sweet House in the suit premises. It is further stated that after the death of husband of original plaintiff, her elder son Satyanarayan Prasad was looking after the affairs of the tenancy and he used to collect rent from the defendant and issued rent receipts on behalf of original plaintiff. It is further stated that from 1973, the rent receipts issued in the name of proforma opposite party Surendra Singh Chhabra, whereas, from 20.6.1980, the rent receipts issued in the name of proforma opposite party-Ashok Kumar Chhabra. 3. Further case of original plaintiff-Sakuntala Devi is that she had four sons namely Satyanarayan Prasad, Murlidhar Prasad, Manohar Prasad and Gourishankar Prasad. It is further stated that Rakesh Kumar Kapsime is the son of Satyanarayan Prasad, Vishal Kumar is the son of Manohar Prasad, Bhabesh Kumar and Vikash Kumar are the sons of Murlidhar Prasad. It is further stated that aforesaid grandsons of original plaintiff are educated, adult and unemployed and are sitting idle. It is stated that the aforesaid four grandsons of original plaintiff wants to start medical shop, general store, hardware shop and retail cloth shop respectively. It is further stated that the suit premises situated at Ranchi-Patna road, in the heart of city. Therefore, the same is most suitable for opening• aforesaid shops. Accordingly, the original plaintiff asked the petitioner and proforma opposite parties to vacate the shop' for her personal necessity. It is further stated that the suit premises situated at Ranchi-Patna road, in the heart of city. Therefore, the same is most suitable for opening• aforesaid shops. Accordingly, the original plaintiff asked the petitioner and proforma opposite parties to vacate the shop' for her personal necessity. It is stated that when the petitioner and other proforma opposite parties refused to vacate the same, an advocate notice was served upon them for vacating the suit premises, inspite of that petitioner and proforma opposite parties did not give any heed to her request, hence, the present suit filed for eviction of petitioner and proforma opposite parties. 4. It appears that during the pendency of the present suit, the original plaintiff transferred some portions of suit premises to Smt. Asha Devi, W/o Satyanarayan Prasad, Smt. Sushma Devi, W/o Gouri Shankar Prasad and Smt. Pushpa Devi, W/o Manohar Prasad by executing registered deed of gift. In view of aforesaid development, the plaint has been amended and the aforesaid three daughters-in-law of the original plaintiff were impleaded in the suit as plaintiff nos. 2, 3 and 4 respectively. It further appears that in paragraph no. 8 of the plaint, it has also been stated by amendment that the aforesaid deed of gift was virtually a family settlement to avoid complication amongst the family members after demise of original plaintiff. It is also stated that the personal necessity of plaintiff as mentioned in the original plaint is also common to newly added plaintiffs because the eviction is claimed for their sons. 5. It reveals that summons issued to the petitioner and proforma opposite parties, but after receiving notice, only petitioner appeared in the court and contested the suit by filing written statement. Therefore, the suit proceeded ex-parte against the proforma opposite parties. 6. Petitioner in his written statement admitted that original plaintiff was the owner/landlord of the suit premises. He further admits that he is the tenant of the suit premises and holds the tenancy of the suit premises jointly with his brothers namely Surendra Singh Chhabra, Ashok Kumar Chhabra and Krishna Lal Chhabra, father of Pradeep Chhabra and Satish Chhabra. It is further admitted that petitioner is running a joint family business in the suit premises in the name and style of M/s Chhabra Sweets. It is further admitted that petitioner is running a joint family business in the suit premises in the name and style of M/s Chhabra Sweets. It is further stated that at the time of filing of suit, the name of the business premises changed as M/s Chhabra Sweets House and name of Pradeep Kumar Chhabra entered as proprietor in the Sales Tax Department. It is further stated that Pradeep Kumar Chhabra had been recognized by the plaintiffs-opposite parties as tenant of the suit premises, which will be apparent from the notice issued by original plaintiff against the petitioner and proforma opposite parties. It is stated that Pradeep Kumar Chhabra and Satish Chhabra are necessary parties, but the plaintiffs not impleaded them as defendants, thus, the suit is bad for non-joinder of necessary parties. The further case of petitioner is that at the time of filing of suit, the three grandsons of original plaintiff namely Rakesh Kumar Kapsime, Bhabesh Kumar and Vikash Kumar are not sitting idle because they are employed. It is stated that Rakesh Kumar Kapsime was doing business of Sattu in the name and style of R.K. Sattu, whereas Bhabesh Kumar and Vikash Kumar were looking after the business of masala and flour mill. It is further stated that another grandson of original plaintiff namely Vishal Kumar was minor at the time of filing of suit and was a student of local college. Thus, it is submitted that the plaintiffs have not come to the court with clean hand and suppressed material facts from the court, therefore, the requirement of the suit premises on • the ground of personal necessity is not reasonable and bonafide. It is also stated • by the petitioner that during the pendency of suit, the suit premises was transferred to plaintiff nos. 2, 3 and 4, therefore, from • that day there are four owners of the suit premises including the original plaintiff. It is stated that the Schedule-'A' of the plaint has not been amended after the change of ownership. It is further stated that after the change of ownership of the suit premises, the original cause of action vanished, therefore, the present suit cannot proceed on the basis of previous cause of action and vague description of suit premises. Accordingly, it is stated that the suit is liable to be dismissed. 7. It is further stated that after the change of ownership of the suit premises, the original cause of action vanished, therefore, the present suit cannot proceed on the basis of previous cause of action and vague description of suit premises. Accordingly, it is stated that the suit is liable to be dismissed. 7. It appears that the learned court below after considering rival pleadings of the parties had framed the following issues for determination: 1. Is the suit maintainable in its present form? 2. Have the plaintiffs valid cause of action for the suit? 3. Whether the plaintiffs require the suit premises for their personal necessity, bonafidely? 4. Whether partial eviction of the defendant shall meet the requirement of the plaintiffs? 5. Are the plaintiffs entitled to the• claimed relief/reliefs? 6. Is the suit bad for non-joinder of necessary parties ?" 8. It further appears that the parties adduced oral and documentary evidence in support of their cases. It further appears that the learned court below after hearing counsels for the parties and considering the evidence available on record, decreed the suit on contest against the petitioner as also ex-parte against proforma opposite parties. 9. While assailing the impugned judgment of the court below, Sri. V. Shivnath, learned senior counsel submits that during the pendency of the suit, defendant no. 2 namely Surendra Singh Chhabra died, but his heirs have not been substituted. Therefore, the suit against him abated, but the learned court below passed ex-parte decree against him. It is submitted that decree against a dead person is non-est, therefore, on that very ground itself, the impugned judgment and decree can be set aside. It is further submitted that the learned court below has come to the con-elusion that at the time of filing of the suit, one of the grandson namely Rakesh Kumar was not unemployed and was doing business of Sattu in the name and style of R.K. Sattu. It is submitted that in-spite of that finding, the learned court below concluded that the requirement of plaintiffs-opposite parties is reasonable and bonafide. It is further submitted that the petitioner filed Ext-A series to show that during the pendency of the suit, number of shops in the vicinity of suit premises have been let out by the plaintiffs to different persons, which goes to show that plaintiffs have no bonafide requirement. It is further submitted that the petitioner filed Ext-A series to show that during the pendency of the suit, number of shops in the vicinity of suit premises have been let out by the plaintiffs to different persons, which goes to show that plaintiffs have no bonafide requirement. It is submitted that if the plaintiffs have bonafide requirement and if four grandsons of original plaintiff are really unemployed and plaintiffs wants to settle them in any business, then they ought to have started business in the premises, which were let out during the pendency of present suit. It is submitted that the aforesaid circumstance also shows that the need of plaintiffs-opposite parties is not reasonable and bonafide. It is submitted that learned court below failed to consider the aforesaid aspect and wrongly came to the conclusion that the personal necessity of the plaintiffs-opposite parties is reasonable and bonafide. It is further submitted that Pradeep Kumar Chhabra, who is tenant and joint owner of the joint family business, was not made party. The said Pradeep Kumar Chhabra is a necessary party, but he has not been impleaded in the suit as defendant. Thus, the suit is also bad for non-joinder of necessary party. 10. On the other hand, Sri. Manjul Prasad, learned senior advocate appearing for the opposite parties, submits that since Surendra Singh Chhabra has not contested the suit by filing a written statement, therefore learned court below had rightly exempted the plaintiffs from substituting his legal heirs as per the provisions contained under Order XXII Rule 4(4). He further submits that once the aforesaid exemption has been granted then, it is open for the court to pass judgment against Surendra Singh Chhabra notwithstanding his death and the said judgment and decree have the same force, as if, same have been passed before death took place. It is further submitted that in a eviction suit, the reasonableness and bonafide of the plaintiffs is required to be seen on the date of filing of the suit. The subsequent event i. e. creation of different tenancy by Ext-A series cannot be taken into account for holding that the requirement of suit premises by plaintiffs on the ground of personal necessity is not bonafide. The subsequent event i. e. creation of different tenancy by Ext-A series cannot be taken into account for holding that the requirement of suit premises by plaintiffs on the ground of personal necessity is not bonafide. It is submitted that the learned court below had rightly come to the conclusion that the requirement of suit premises by the plaintiff on the ground of personal necessity is reasonable and bonafide. It is further submitted that the suit premises has been let out to petitioner by executing an agreement for opening a Sweet Shop. It is submitted that the plaintiffs have no knowing that there was an internal arrangement by the petitioner for doing the said business. Thus, all the persons who are giving aid to the petitioner for doing the business are not necessary party. Therefore, the contention that Pradeep Kumar Chhabra is a necessary party cannot be entertained. Accordingly, it is submitted that the suit is not bad for non-joinder of necessary party. 11. After hearing the counsels of the parties in the present revision application, I find that the following points arose for determination:- (i) Whether the impugned judgment and decree is non-est and void ab initio because the same has been passed against a dead person? (ii) Whether the plaintiffs requirement of the suit premises on the ground of personal necessity is reasonable and bonefide ? (iii) Whether Pradeep Kumar Chhabra is a necessary party and the suit is bad for non-joinder of necessary party because he has not been impleaded in the suit ? Point No (i)-Whether the imougned iudgment and decree is non-est and void ab initio because the same has been passed against a dead person. 12. It is an admitted position that defendant no. 2 Surendra Singh Chhabra has not contested the suit by filing a written statement. From perusal of order sheet dated 12.8.2005, it appears that the petitioner filed an application in the court below disclosing that Surendra Singh Chhabra died on 19.9.2003, but his heirs have not been substituted within the period of limitation, therefore, the entire suit abates as per the provisions contained under Order XXII, Rule 4(3). It reveals that the plaintiffs-opposite parties appeared and submitted before the learned court below that since defendant no. It reveals that the plaintiffs-opposite parties appeared and submitted before the learned court below that since defendant no. 2 Surendra Singh Chhabra had not contested the suit by filing a written statement, therefore, in view of provision contained under Order XXII Rule 4(4), plaintiffs may be exempted from substituting the legal heirs of defendant no. 2. It appears that learned court below accepted .the plea of plaintiffs-opposite parties and exempted them from substituting the legal representatives of Surendra Singh Chhabra. 13. It is submitted by Sri Shivnath that the suit will automatically abate against Sri Surendra Singh Chhabra after the expiry of period of limitation prescribed under the Limitation Act. It is submitted that after the abatement of the suit, the provisions contained under Order XXII, Rule 4 (4) has no application. It is then submitted that the prayer for exemption as provided under Order XXII Rule 4(4) is required to be made before abatement. Accordingly, it is submitted that the order dated 12.8.2005 is illegal, therefore, can• not be sustained by this Court 14. Sri Manjul Prasad, submits that the prayer for exemption under Order XXII Rule 4 (4) can be made at any time before the pronouncement of judgment and the said power can be exercised by Court even after abatement of the suit. It is further submitted that the order dated 12.08.2005 passed by the court below has not been challenged by the defendant by filing a civil revision, therefore, the said order attained finality. He submits that correctness of the same cannot be challenged at this stage. 15. As per Section 105 of the Code of Civil Procedure if an appeal is filed against the final decree then it is open for the appellant to challenge any order on the ground of illegality and irregularity affecting the decision of the case provided the ground may be set forth as a ground of objection in the memorandum of appeal. In the present revision application at paragraph no. 14 (8), the petitioner has taken a specific ground that during the pendency of the suit, Surendra Singh Chhabra died and his heirs have not been substituted, therefore, the decree has been passed against the dead person. Thus, the petitioner has challenged the decree on the aforesaid grounds. In the present revision application at paragraph no. 14 (8), the petitioner has taken a specific ground that during the pendency of the suit, Surendra Singh Chhabra died and his heirs have not been substituted, therefore, the decree has been passed against the dead person. Thus, the petitioner has challenged the decree on the aforesaid grounds. It is well settled that any interlocutory order passed during the trial will merge with the final order, if the said interlocutory order has not been challenged in appeal or revision separately prior to passing of final order. In the instant case, it is an admitted position that the order dated 12.08.2005 has not been challenged by the petitioner by filing a civil revision and/or writ application. Thus, in the instant case doctrine of merger apply. Thus, I find that the order dated 12.08.2005 merged with the final judgment. Consequently, the same can be challenged in the present revision. Accordingly, I find that the objection raised by Sri. Manjul Prasad that the order dated 12.08.2005 has become final and cannot be challenged at this stage is misconceived, therefore, rejected. 16. Now, I am proceeding to determine as to whether the court has power to exempt the plaintiff from substituting legal representatives of defendant after abatement of the suit. The aforesaid question has already been settled by Hon'ble Patna High Court in a decision reported in 2000(3) PLJR 675 . In the said decision while interpreting the provisions contained under Order XXII Rule 4 (4), their Lordships held that:- "The said provisions leads to one interpretation that the power of exemption has to be exercised on the fulfillment of the condition mentioned therein at any stage even if abatement has taken effect. Sub Rule (4) is an exception to sub Rule (3) and in the cases covered by sub Rule (4), the suit will not abate against the deceased-defendant and the court may render a judgment against a dead person also and that judgment will have the effect as if it was passed during his life time. In other words, the sub Rule (4) is not controlled by sub Rule (3), on the other hand, sub Rule (3) has no application to the cases covered by sub Rule (4), meaning thereby in that situation the suit will not be treated to have abated against the deceased defendant." 17. In other words, the sub Rule (4) is not controlled by sub Rule (3), on the other hand, sub Rule (3) has no application to the cases covered by sub Rule (4), meaning thereby in that situation the suit will not be treated to have abated against the deceased defendant." 17. In view of the aforesaid Division Bench judgment of the Hon'ble Patna High Court, the contention of Sri. V. Shivnath has no leg to stand. In the instant case, it is an admitted position that defendant no. 2 namely Surendra Singh Chhabra had not contested the suit by filing• written statement. It is also not in dispute that the summons served upon him as per the direction of learned court below. Therefore, the condition required for application of provisions under Order XXII Rule 4 (4) has been fulfilled. Thus, I find that the learned court below had rightly exempted plaintiffs/opposite parties from substituting the legal heirs of defendant no. 2 namely Surendra Singh Chhabra. Therefore, the judgment passed against defendant no. 2 will have the same effect as if it was passed during his life time. Thus, the contention of Sri. V. Shivnath that the impugned judgment and decree is void ab initio and non-est in the eye of law cannot be accepted. Thus, the Point no. (i) decided against the petitioner. Point no (ii)-Whether the plaintiffs' requirement of the suit premises on the ground of personal necessity is reasonable and bonafide: 18. The original plaintiff stated that her grandsons namely Rakesh Kumar Kapsime, Bhabesh Kumar, Vikash Kumar and Vishal Kumar are unemployed and sitting idle. It is further stated that the aforesaid grandsons of original plaintiff want to start their medical shop, general store, hardware store and retail cloths shop respectively. It is further stated that the suit premises situated on Ranchi-Patna road, within the heart of the city, therefore, the same is most suitable for starting the aforesaid business. The plaintiff require the suit premises for her personal necessity. It is stated that the original plaintiff gave notice to the petitioner and proforma opposite parties, but in-spite of that they have not vacated• the suit premises. Hence, the present suit filed. 19. On the other hand, the petitioner-defendant no. 1 stated that the plaintiffs' requirement of the suit premises for the alleged personal necessity is not bonafide and reasonable. It is stated that the original plaintiff gave notice to the petitioner and proforma opposite parties, but in-spite of that they have not vacated• the suit premises. Hence, the present suit filed. 19. On the other hand, the petitioner-defendant no. 1 stated that the plaintiffs' requirement of the suit premises for the alleged personal necessity is not bonafide and reasonable. It is stated that the original plaintiff's grandsons namely Rakesh Kumar Kapsime, Bhabesh Kumar, Vikash Kumar are not unemployed at the time of filing of the suit. It is stated that at the time of filing of suit Rakesh Kumar Kapsime was doing the business of sattu in the name and style of R.K. Sattu, whereas Bhabesh Kumar and Vikash Kumar are doing the business of masala and flour mills. It is further stated that at the time of filing of suit, the fourth grandson of original plaintiff namely Vishal Kumar was minor. 20. I have gone through the record of the case. In the instant case, though the plaintiffs and plaintiffs' witnesses stated that Rakesh Kumar Kapsime, Babesh Kumar, Vikash Kumar, Vishal Kumar are unemployed but from perusal of Ext-B, Ext-G, Ext-H, it appears that Rakesh Kumar Kapsime was running a Sattu mill in the name and style of R.K. Sattu mills and for that purpose he has obtained a licence from Weight and Measure Department having Licence No. 2916 of 1982. Admittedly, the present case has been filed in the year 1995. Thus, at the time of filing of the suit Rakesh Kumar Kapsime is not an• unemployed man. So far Bhabesh Kumar is concerned, it was suggested to all the plaintiff witnesses that he is doing the business of spices in the name and style of Bhabesh Masala Udyog. The witnesses examined on behalf of defendant had also supported this fact that there is no cross-examination in this respect. Ext-L shows that a current account was also opened in the State Bank of India, Jhumri Telaiya in the name of Bhabesh Masala Udyog. This also goes to show that Bhabesh Kumar was also doing business, therefore, he is not unemployed. Defendant witnesses had stated in their deposition that Vikash Kumar is doing the business of flour and oil mills. This fact is also stated by P.W.-8 at paragraph no. 31. This also goes to show that Bhabesh Kumar was also doing business, therefore, he is not unemployed. Defendant witnesses had stated in their deposition that Vikash Kumar is doing the business of flour and oil mills. This fact is also stated by P.W.-8 at paragraph no. 31. He has categorically stated that Vikash Kumar has a flour and oil mill from last so many days. Thus, Vikash Kumar is also not unemployed. So far Vishal Kumar is concerned Ext-J shows that his date of birth is 01.03.1978. Thus, on the date of filing of suit he is aged about 17 years. Under the aforesaid circumstance, the statement of plaintiffs that on the date of filing of the suit Vishal Kumar was adult is not correct. In view of the aforesaid evidence available on record, I find that the plaintiff had not given true fact with regard to reasonableness of her personal necessity. 21. It is admitted by the plaintiffs that during the pendency of the suit, the original plaintiff Sakuntala Devi gifted the suit property to her three daughters-in-law namely Plaintiff nos. 2, 3 and 4. After the gift, an amendment was made in the plaint wherein it is stated that the said gift is not absolute, rather it is a family arrangement and it is also stated that the daughters-in-law of original plaintiff have the same personal necessity for eviction of the suit which the original plaintiff had. In my view, once the deed of gift is executed and registered before the Registrar, the donee will become the absolute owner of the gift property, therefore the contention of plaintiffs that it is a family settlement cannot be accepted. Moreover, Plaintiff witness no. 3-Sushma Devi at paragraph no. 38 had admitted that as per the deed of gift all the donee has become owner of the portion gifted to them. Thus, the aforesaid statement of Sushma Devi does not support the case of plaintiffs that the aforesaid gift deeds are virtually a family settlement. 22. It is also relevant to mention that the original plaintiff-Sakuntala Devi had four sons namely Satyanarayan Prasad, Murlidhar Prasad, Manohar Prasad Kapsime and Gouri Shankar Prasad. It is also not out of place to mention that the plaintiff nos. 2, 3 and 4 are wives of Satyanarayan Prasad, Manohar Prasad, Gourishankar Prasad respectively. 22. It is also relevant to mention that the original plaintiff-Sakuntala Devi had four sons namely Satyanarayan Prasad, Murlidhar Prasad, Manohar Prasad Kapsime and Gouri Shankar Prasad. It is also not out of place to mention that the plaintiff nos. 2, 3 and 4 are wives of Satyanarayan Prasad, Manohar Prasad, Gourishankar Prasad respectively. The record shows that no gift was made to the wife of Murlidhar Prasad. It is worth mentioning that Vikash Kumar is the son of Murlidhar Prasad. There is no specific pleading that the plaintiff nos. 2, 3 and 4 were also seeking eviction of defendant for the purpose of Vikash Kumar. At paragraph no. 8 of the plaint by amendment plaintiff nos. 2, 3 and 4 had stated that since suit premises required for opening of shops of their sons therefore their personal necessity is same. Because Vikash Kumar is not the son of Plaintiff nos. 2, and 4, therefore, it can safely be held that personal necessity of original plaintiff and plaintiff nos. 2, 3 and 4 are different. Under the said circumstances unless the description of suit premises, as mentioned in Schedule-'A' of the plaint, is amended, it is not clear which of the plaintiffs want to evict defendants from which part of the suit property. Thus, in my view, on the ground of vagueness of shit property it is not possible to pass a decree for eviction. 23. It is well settled principles of law that subsequent event can be taken into consideration for deciding the case of eviction. In the instant case Ext.-A/5 shows that Rakesh Kumar Kapsime let out a shop in favour of Upendra Kumar Dayal on 12.12.2005 of Jhun1ri Telaiya Municipality (Ward No.7) for opening a medical shop. In this connection, it is not out of place to mention that the suit premises also situates in ward no. 7 of Jhumri Telaiya Municipality. It is also worth mentioning that the plaintiffs have stated at paragraph no. 8 of their plaint that Rakesh Kumar Kapsime wants to start a business of medical shop. Thus, if Rakesh Kumar Kapsime wants to start a business of medical shop, he ought to have opened the shop in the premises let out by him because aforesaid Upendra Kumar Dayal took the said premises for opening of medical shop. 8 of their plaint that Rakesh Kumar Kapsime wants to start a business of medical shop. Thus, if Rakesh Kumar Kapsime wants to start a business of medical shop, he ought to have opened the shop in the premises let out by him because aforesaid Upendra Kumar Dayal took the said premises for opening of medical shop. This shows that the requirement of suit premises by the plaintiffs is not reasonable and bonafide. It has been set at rest, by various decisions of apex court and High Courts, that the reasonable requirement must be determined objectively and not on the basis of mere desire. If the landlord fails to establish that his requirement of suit premises is bonafide, then eviction decree can be set aside by the High Court. 24. I find that the original plaintiff suppressed the true fact that at the time of filing of suit Rakesh Kumar Kapsime, Bhabesh Kumar and Vikash Kumar were doing their own business. She also wrongly stated that Vishal Kumar was adult at the time of filing of the suit. Thus, the statement made in the plaint, showing the reasonableness of personal necessity, is not correct. Therefore, the plaintiffs' requirement is not bonafide. The subsequent events i.e. letting out shops to different persons by the plaintiffs, including the Rakesh Kumar Kapsime, goes to show that the personal necessity of plaintiff did not continue. Under the said circumstance, I conclude that the requirement of plaintiff is not bonafide and reasonable. Accordingly, I decide Point no. (ii) in favour of petitioner and against the plaintiffs-opposite parties. Point no. (iii)-Whether Pradeed Kumar Chhabra is a necessary party and because he has not been impleaded in the suit as defendant the suit is bad for non-joinder of necessary party: 25. The plaintiffs stated that the business of defendants in the name and style of Chhabra Sweets is their joint family business and they are doing the said business in the suit premises. From perusal of Ext-5,1 find that the notice for vacating the suit premises was also given to Pradeep Kumar Chhabra and Satish Kumar Chhabra, who are sons of Late Krishna Chhabra (the brother of defendant no. 1). It further appears from Ext. N,O and P series that Pradeep Kumar Chhabra is the licensee of Chhabra Sweets. From perusal of Ext-5,1 find that the notice for vacating the suit premises was also given to Pradeep Kumar Chhabra and Satish Kumar Chhabra, who are sons of Late Krishna Chhabra (the brother of defendant no. 1). It further appears from Ext. N,O and P series that Pradeep Kumar Chhabra is the licensee of Chhabra Sweets. Thus, from the Ext-5, it appears that plaintiffs recognized Pradeep Kumar Chhabra and Satish Kumar Chhabra as their tenant, therefore the notice for vacating the suit premises was given to them, but surprisingly Pradeep Kumar Chhabra and Satish Kumar Chhabra had not been made party in the suit. Under the said circumstance, I find that the suit is bad for non-joinder of necessary party. Accordingly, Point no. (iii) is decided in favour of petitioner and against the plaintiffs-Opposite parties. 26. In view of my findings on Point nos. 2 and 3, I conclude that the impugned judgment and decree suffers from material illegality and irregularity, therefore, same cannot be sustained. 27. In the result, this civil revision is allowed. The impugned judgment and decree set aside. In the facts and circumstances of the case parties shall bear their own cost.