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2012 DIGILAW 448 (RAJ)

Krishna Devi v. Ahmad Ali

2012-02-15

BELA M.TRIVEDI

body2012
JUDGMENT 1. - The present appeal has been filed by the appellant-original plaintiff under Order 43, Rule 1 (u) of CPC challenging the judgment and order dated 6.10.94 passed by the Addl. Civil Judge (Sr.Div.), Jhunjhunu (hereinafter referred to as 'the appellate court')in Civil Appeal No. 26/85, whereby the appellate court set aside the judgment and decree dated 4.7.85 passed by the Munsiff & Judicial Magistrate, Chirawa, District Jhunjhunu (hereinafter referred to as 'the trial court') in Civil Suit No. 66/81 and remanded the case to the trial court for deciding the suit afresh after impleading the daughters of the deceased Ladu @ Allaudin as the party-defendants in the suit. 2. At the outset it may be stated that unfortunately the present appeal through of 1995 has remained pending for admission till this date, without any substantive hearing. Therefore, with the consent of the learned counsels for the parties, the same is decided finally at the admission stage. 3. The brief facts giving rise to the appeal are that the appellant-plaintiff had filed the suit being No. 66/81 before the trial court seeking eviction of the respondents-defendants from the suit shop which was originally let out to Shri Ladu @ Allaudin, who was the husband of the original-defendant No.1 and father of the original-defendants Nos. 2 to 5. The said suit was filed seeking possession of the suit shop on various grounds available under the Rajasthan Rent Control Act, 2001 (hereinafter referred to as 'the said Act'). The said suit was resisted by the defendants by submitting the written statement denying the allegations made in the plaint and further contending that there were two daughters of Late Shri Hazi Allaudin @ Ladu, who were necessary parties in the suit and they having not been joined as party-defendants, the suit was not maintainable. 4. The trial court from the pleadings of the parties had framed 6 issues out of which Issue No.5 reads as under:- " vk;k tokc nkos dh en ua0 3 ds fy, i{kdkj Jherh fcfLeYykg o jetkuh vko';d i{kdkj gSa] vkSj muds fcuk i{kdkj cuk;s nkok pykus ;ksX; ugha gS\ " 5. The trial court having regard to the evidence on record decreed the suit against the defendant Nos. The trial court having regard to the evidence on record decreed the suit against the defendant Nos. 1,3 and 4 and directed them to handover the vacant possession of the shop to the appellant-plaintiff and also directed them to pay the arrears of rent vide judgment and decree dated 4.7.85. In the said judgment the trial court decided the issue No. 5 against the defendants by holding that the daughters of late Shri Ladu named Smt. Bismillah and Smt. Ramjani were not necessary parties, as they were not carrying on any business in the suit shop at the time of death of Shri Ladu. Aggrieved defendants filed the appeal being No. 26/85 before the appellate court and the appellate court vide the impugned judgment and order passed on 6.10.94, set aside the judgment and decree passed by the trial court and remanded the case to the trial court for deciding the same afresh, by holding that the daughters of late Shri Ladu named Smt. Bismillah and Smt. Ramjani were necessary parties and were required to be joined as party-defendants in the suit. 6. It was sought to be submitted by the learned senior counsel Mr. R.K. Mathur for the appellant-plaintiff that there being specific finding arrived at by the trial court that the daughters of the deceased Ladu were not carrying on any business in the suit shop alongwith the defendants at the time of the death of Shri Ladu, they were not required to be joined as the party-defendants in the suit, however the appellate misinterpreting the definition of "tenant" contained in Section 2(i) of the said Act has remanded the case to the trial court. According to him the impugned judgment being ex-facie illegal and perverse, the same deserves to be set aside. 7. However, the learned counsel Mr. S.S. Naruka for the respondents, vehemently submitted that the appellate court has rightly considered the provisions contained in the said Act and has remanded the case to the trial court which does not call for any interference of this court. Referring to the deposition of the witnesses examined on behalf of the appellant, Mr. Naruka submitted that the defendant Ahmad Ali had specifically stated in his evidence that Shri Ladu @ Allaudin had two daughters named Smt. Bismillah and Smt. Ramjani and, therefore, the said daughters were required to be joined as party-defendants in the suit. 8. Referring to the deposition of the witnesses examined on behalf of the appellant, Mr. Naruka submitted that the defendant Ahmad Ali had specifically stated in his evidence that Shri Ladu @ Allaudin had two daughters named Smt. Bismillah and Smt. Ramjani and, therefore, the said daughters were required to be joined as party-defendants in the suit. 8. Considering the submissions made by the learned counsels for the parties and the impugned order passed by the appellate court as well as the judgment and decree passed by the trial court, it transpires that the deceased Ladu @ Allaudin was the original tenant of the suit shop which belonged to the plaintiff. After the death of the said Ladu, the appellant-plaintiff filed the suit against the wife and the sons of the said Ladu i.e. the defendants seeking possession of the said shop. As stated hereinabove, the said suit was decreed by the trial court, deciding the issue No.5 against the defendants holding that the daughters of the said Ladu were not necessary parties. The appellate court remanded the case to the trial court only considering the said issue No.5 and held that the said daughters were necessary parties. Thus, issue involved in the present appeal runs into very narrow compass, as to whether the appellate court was justified in holding that the daughters of the deceased Ladu were the tenants within the meaning of Section 2(i) of the said Act and, therefore, they were necessary parties required to be joined in the suit. 9. It is not disputed that the premises in question is the shop used for business purpose and not the residence. Section 2(i) of the said Act reads as under:- "2(i) "tenant" means-- (i) --------- (ii) in the event of death of the person referred to in sub-clause (i), --- (a) -------- (b) in case of premises let out for commercial or business purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily carrying on business with him in such premises as member of his family upto his death;and" 10. From the bare reading of the said definition clause, it clearly transpires that in the event of the death of the tenant, his surviving spouse, son, daughter or other heir, who were ordinarily carrying on business with him in the premises leased out for commercial or business purpose as the member of his family upto his death, would be the tenant. Hence, it was incumbent on the part of the defendants to prove that the said daughters of Shri Ladu were also carrying on the business alongwith the said Ladu in the suit shop upto the time of death of Shri Ladu. As evident, the said issue No.5 was raised on the basis of the contentions raised by the defendants in the written statement and hence the burden to prove the said issue was on the defendants. Now, if the evidence of the defendants in the suit is perused, there is not a single averment made by any of the witnesses examined on behalf of the defendants, to show that the said daughters were carrying on the business alongwith Shri Ladu at the time of his death. On the contrary, the respondent No.1 Ahmad Ali has categorically stated that he alongwith his mother were carrying on business in the suit shop. In absence of any evidence whatsoever adduced by the defendants, in the opinion of this court, the trial court had rightly held that the defendants had failed to prove that the said daughters were also ordinarily carrying on the business with the deceased in the suit shop upto his death and held the issue No.5 against the defendants. The appellate court misinterpreting the provisions contained in Section 2(i) of the said Act held that since the said Ladu had daughters, they were required to be impleaded as party-defendants in the suit. As observed earlier, on the death of the tenant in respect of the premises leased out for commercial or business purpose, only those sons or daughters or heirs of the deceased who were carrying on the business alongwith the deceased at the time of his death, were required to be treated as tenants and not the other heirs. Therefore, the finding arrived at by the appellate court on issue nO.5 being ex-facie illegal and perverse, the impugned order passed by the appellate court deserves to be quashed and set aside. 10. Therefore, the finding arrived at by the appellate court on issue nO.5 being ex-facie illegal and perverse, the impugned order passed by the appellate court deserves to be quashed and set aside. 10. In that view of the matter, the impugned order 6.10.94 is quashed and set aside. The appellate court is directed to decide the appeal afresh on merits. The appeal stands allowed accordingly.Appeal Allowed. *******