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2015 DIGILAW 1164 (GAU)

Dindayal Agarwal v. Ramesh Dholani

2015-09-09

INDIRA SHAH

body2015
JUDGMENT : Indira Shah, J. 1. The judgment and decree passed by the learned Civil Judge No. 2, Kamrup, in Title Appeal No. 59 of 2012 arising out of judgment and decree dated 27.03.2012 passed by the learned Munsiff No. 3 in Title Suit No. 21 of 1982 has been challenged in this revision petition. I have heard Mr. B.K. Das, learned Senior Counsel assisted by Mr. G. Jalan, learned counsel for the petitioner and also heard Mr. O.P. Bhati, learned senior counsel assisted by Mr. J. Bhati, learned counsel appearing on behalf of the respondents/ defendants. 2. The appellant as plaintiff filed the Title Suit No. 21 of 1982 praying for decree of eviction as well as for recovery of arrear of rent as well as for compensation. The plaintiff's case, in brief, is that Late Rukmini Devi Jalan was the owner and proprietor of the house and premises known as 'Jalan House'. She let out the suit premises mentioned in Schedule-A of the Plaint to Late Shankardas Dholani for one year i.e. from 01.07.1958 to 30.06.1959 at a monthly rent of Rs. 265/- per month on written agreement entered upon between the parties. 3. Even after expiry of one year, Rukmini Devi herself allowed Late Shankardas Dholani to occupy the premises as holding over tenant at 'will' and the rent was payable within 1st Week of each calendar month. There was condition stipulated that in case of default, the plaintiff can re-enter with one month's notice. Late Rukmini Devi Jalan used to collect the rent herself by issuing receipt and Late Shankardas Dholani used to put his signature on the back of counterfoil of the receipt. The further case of the plaintiff is that Late Shankardas Dholani became a defaulter since January, 1976 and the suit premises is required bona fide by the plaintiff for use and occupation of her grandson, Dindayal Agarwal @ Jalan. 4. Late Rukmini Devi sent a notice to Late Shankardas Dholani on 15.07.1976 terminating the tenancy and determining his tenancy by holding over at 'will' and asked Late Shankardas Dholani to vacate the suit premises by 31.12.1976. Late Shankardas Dholani in his reply to the said notice raised many false allegations against the plaintiff. Thereafter, Rukmini Devi filed the present title suit against the Shankardas Dholani. 5. Late Shankardas Dholani in his reply to the said notice raised many false allegations against the plaintiff. Thereafter, Rukmini Devi filed the present title suit against the Shankardas Dholani. 5. Shankardas Dholani contested the suit by filing written statement wherein he denied his relationship with Rukmini Devi as landlord and tenant. According to him, Choutmal Jalan (Defendant No. 2, since deceased) for all purpose was his landlord in respect of the suit premises and he used to collect the rent all along. The original agreement was executed between him and Choutmal Jalan only. He also averred that rent was not payable monthly. The receipts of payment of rent were issued only on demand and no receipt was issued from January, 1976 till October, 1976. He denied that he defaulted in payment of rent and according to him, he had been paying rent in the court since November, 1976, as the landlord and his agent refused to accept rent from him. He denied the bona fide requirement of the plaintiff. 6. Defendant No. 2 Late Coutmal Jalan (since deceased) in his written statement also denied the case of the plaintiff and claimed himself as landlord in respect of the suit premises. He stated that rent was always collected by him. According to him, the plaintiff being an old ailing lady was completely under the influence of her eldest son Bhaniram Agarwal. He also claimed that the suit premises fell in his share after a family partition in 1957. 7. During pendency of the suit, plaintiff Rukmini Devi Jalan died and the present plaintiff i.e. her grandson Dindayal Agarwal @ Jalan was substituted in her place. Defendant No. 1, Shankardas Dholani also died and he was substituted by his two sons, namely, Sushil Kumar Dholani and Ramesh Kumar Dholani. Thereafter, Sushil Kumar Dholani expired and the suit abated against him as the plaintiff failed to substitute his legal heirs. The defendant No. 2 Choutmal Jalan also expired. However, defendant Nos. 2(a) to 2(h), were substituted in place of defendant No. 2 Choutmal Jalan. 8. The learned trial Court framed the following issues:- "1) whether there is any cause of action for the suit? 2) Whether the suit is maintainable in the present form and manner? 3) Whether there is any relationship of landlord and tenant between Late Rukmini Devi Jalan and late Shankardas Dholani? 8. The learned trial Court framed the following issues:- "1) whether there is any cause of action for the suit? 2) Whether the suit is maintainable in the present form and manner? 3) Whether there is any relationship of landlord and tenant between Late Rukmini Devi Jalan and late Shankardas Dholani? 4) Whether late Shankardas Dholani defaulted in paying monthly rents to late Rukmini Devi Jalan from Jan, 1976 till October, 1976? 5) Whether the suit premises are required bona fide by the plaintiff? 6) Whether the plaintiff is entitled to get a decree for ejectment of defendants No. 1(a) to 1(b) from the suit premises? 7) To what reliefs is the plaintiff entitled?" 9. While deciding the issue No. 2, the learned trial Court held that after the death of original defendant No. 1, Shankardas Dholani, his 2 (two) sons defendant Nos. 1(a) and 1(b) were running the business from the suit premises. Defendant No. 1(a) had expired and the suit abated against him. The Court observed that presumption can be drawn that defendant No. 1(a) has left behind himself his legal heirs apart from defendant No. 1(b) and even if the suit is decreed, it would be non executable. 10. While deciding issue No. 3, the learned trial Court held that the plaintiff could not establish that Late Rukmini Devi Jalan was the sole proprietor of Jalan House and she was landlord in respect of suit premises, the suit filed by the plaintiff was dismissed on the basis of these two issues. 11. Being aggrieved, the petitioner-appellant filed an appeal before the Civil Judge No. 2, Kamrup, Guwahati, the learned Civil Judge, affirmed the judgment and decree passed by the learned trial court and dismissed the appeal. 12. It is submitted by the learned counsel for the petitioner that the appellate court dismissed the appeal on the ground of abatement without considering the fact that the deceased defendant No. 1(a) had failed to contest the suit during his life time by filing written statement. The Courts below were not justified to abate the suit against defendant No. 1(a) inasmuch as D.W.I. in his deposition has categorically stated that he is running the business as proprietor of the suit premises and therefore, the presumption that legal heirs of deceased defendants were also occupying the suit premises was perverse and contrary to the evidence on record. 13. 13. The learned trial Court was not justified to doubt about the authenticity of rent receipts. Rent receipts were issued on behalf of Rukmini Devi Jalan as proprietor of Jalan House. The courts below completely overlooked the fact that vide orders dated 27.01.2009 and 24.03.2009, the respondents/defendants were directed to furnish the name of legal heirs of deceased defendant No. 1(a) whereas for non furnishing of such names, the learned court below ought to have held that no legal heirs exists of the deceased defendant No. 1(a). 14. Order XXII Rule 4 of the Code of Civil Procedure, 1908 reads as under:- "Sub-Clause (4) to Rule 4 allows the Court to exempt the plaintiff from the necessary substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." 15. Rule 10 A, Order XXII cast a duty of pleader to communicate to Court about the death of a party. Here in this case, on such information regarding death of defendant No. 1(a), communicated to the court, the petitioner/plaintiff filed an application to direct the defendant's side to furnish the list of names of legal heirs of defendant No. 1(a). The learned trial Court allowed the petition and directed the defendant to disclose the names of legal heirs of deceased defendant No. 1(a) and since the defendant failed to furnish the names of legal heirs of deceased defendant No. 1(a), the learned trial Court in exercise of its jurisdiction under sub-Rule (4) of Rule 4 to Order XXII proceeded with the case but ordered that the suit would abate against defendant No. 1(a). 16. It also appears that though the defendant No. 1(a) was brought on record but he failed to contest the suit by filing written statement. Therefore, the finding of the learned courts below that suit abated against defendant No. 1(a) and the decree even if it is passed in favour of the plaintiff would be non executable decree was wrong and the decision on issue No. 2 liable to the set aside and quashed. 17. Therefore, the finding of the learned courts below that suit abated against defendant No. 1(a) and the decree even if it is passed in favour of the plaintiff would be non executable decree was wrong and the decision on issue No. 2 liable to the set aside and quashed. 17. On perusal of the decision on issue No. 3, it appears that the plaintiff claimed that there was an agreement between Late Rukmini Devi Jalan and Late Shankardas Dholani whereby late Shankardas Dholani was allowed to remain in occupation of the suit premises as holding over tenant on monthly rent. The learned trial Court has discussed the aforesaid agreement exhibited as Ext. 4, which shows that late Choutmal Jalan was shown as Lessor and Late Shankardas Dholani as Lessee. The learned trial Court also noticed that there is no mention in the said agreement that Late Choutmal Jalan was acting on behalf of Late Rukmini Devi Jalan. The rent receipts exhibited by the plaintiff also shows that it were issued on behalf of Jalan House. 18. Admittedly, Late Choutmal Jalan was collecting rent in respect of the suit premises. Section 2(c) of the Assam Urban Areas Rent Control Act, defines the terms 'landlord', which says that landlord means any person who is in the time being receiving or entitled to receive rent in respect of any house whether on his own account or on account on behalf of for the benefit of any other person or as a trusty, guardian or receiver or any other person etc. 19. From the evidence on record, it appears that the plaintiff failed to prove that Late Rukmini Devi Jalan, was the sole proprietor of Jalan House or that she was landlord in respect of suit premises and therefore, the learned trial Court rightly held that since the plaintiff could not establish the relationship of landlord and tenant between Late Rukmini Devi Jalan and Late Shankardas Dholani, the suit is liable to be dismissed. The discussions made by the learned trial court while deciding the issue No. 3 does not suffer from any infirmity or illegality since issue No. 3 goes reach of the case, no relief can be given to the plaintiff-petitioner. Thus, affirming the decision of issue No. 3, this Court declines to interfere with the judgment and decree passed by the learned trial Court. Thus, affirming the decision of issue No. 3, this Court declines to interfere with the judgment and decree passed by the learned trial Court. This revision petition stands dismissed and disposed of. No costs. Send a copy of this judgment and order to the learned trial Court.