JUDGMENT AND ORDER : Heard Mr. S. Banik, the learned counsel for the petitioners as well as Mr. P.K. Roy, the learned counsel for the respondents. The names of Respondents No. 3 to 9 were struck of by virtue of order dated 25.07.2016. 2. By filing this application under Article 227 of the Constitution of India, the petitioners, who are the defendants in TS No. 31/2015, has challenged the order dated 21.04.2016, passed by the learned Civil Judge, Tinsukia, in Misc. (J) Case No. 75/2015 arising in TS No. 31/2015, thereby dismissing the petition filed under Order VII Rule 11 read with section 151 CPC for rejection of plaint. 3. The petitioners herein are the defendants in TS No.30/2015, which was filed by the respondents herein. The said suit was for declaration that the plaintiffs are legal heirs of Late Abdul Hamid Ansari along with the proforma defendants in respect of his estate including the suit premises and for declaration of their rights along with the proforma defendants in respect of the suit premises, for declaration that the judgment and decree dated 05.03.2007 passed by the learned Court of Munsiff at Tinsukia in TS No. 21/1994 [TS 73/1989 (Old)] is non- operative and not maintainable against the plaintiffs for non- joinder of them as necessary parties and not executable as well as for perpetual injunction. 4. The suit premises is a shop house. The petitioners herein had filed TS No. 73/1989 (renumbered as TS 21/1994) for eviction of Abdul Hamid Ansari from the said shop and for recovery of arrear rent. During the pendency of the suit, the said defendant i.e. Abdul Hamid Ansari died on 10.10.2013. The defendants did not inform the Court about his death by filing petition under Order XXII Rule 10-A CPC. On an application filed by the petitioners, the deceased defendant was substituted by his 7 legal representatives (LRs. For short), viz., 4 sons and 3 daughters. Out of the said 7 substituted LRs, 3 sons only contested the suit and accepted the written statement filed by their father on 06.11.1990. However, the suit proceeded ex parte against the remaining 4 LRs as they did not contest the suit. TS 21/2007 was allowed by judgment and decree dated 05.03.2007 passed by the learned Court of Munsiff at Tinsukia. However, the suit proceeded ex parte against the remaining 4 LRs as they did not contest the suit. TS 21/2007 was allowed by judgment and decree dated 05.03.2007 passed by the learned Court of Munsiff at Tinsukia. The substituted LRs filed TA No. 3/2007, which was dismissed by the learned Court of Civil Judge, Tinsukia by judgment and decree dated 29.09.2007. Both the said concurrent judgments and decrees were assailed by the substituted defendants before this Court by filing CRP No. 25/2008. This Court by judgment and order dated 31.01.2015, dismissed the said revision and the said order was challenged before the Hon’ble Supreme Court of India by filing special leave petition, which was numbered as SLP(Civil) No. 17055/2015. The Hon’ble Supreme Court, by order dated 09.07.2015, dismissed the said SLP by allowing the defendants time till 31.01.2016 to vacate the suit premises by filing an undertaking in form of an affidavit. 5. In the meanwhile, after CRP 25/2008 was dismissed by this Court by order dated 31.01.2015, the respondents No.1 and 2 herein had instituted TS No. 30/2015, which is pending for disposal before the Court of Civil Judge, Tinsukia, claiming that they were two more daughters of Late Abdul Hamid Ansari and although they had right over the tenanted premises as heirs of their father, they were left out from being impleaded and, as such, the TS No. 21/2007 was bad for non-joinder of necessary parties and, as such, the decree was not executable. The nature of reliefs sought for has been stated herein before. 6. The petitioners filed an application under Order VII Rule 11 read with Section 151 CPC for rejection of the plaint, inter-alia, by alleging that the said suit was filed for obstructing the execution of the decree passed in TS 21/2007, which had attained finality. The said petition was registered as Misc. (J) Case No. 75/2015. The respondents No.1 and 2 filed their written objection. The learned Civil Judge, Tinsukia, by order dated 21.04.2016 rejected the said Misc. (J) Case No. 75/2015, which is the subject of challenge in this revision. 7. The said petition was registered as Misc. (J) Case No. 75/2015. The respondents No.1 and 2 filed their written objection. The learned Civil Judge, Tinsukia, by order dated 21.04.2016 rejected the said Misc. (J) Case No. 75/2015, which is the subject of challenge in this revision. 7. The learned counsel for the petitioners submit that for the purpose of considering the petition for rejection of the plaint under Order VII Rule 11 CPC, the trial court is only required to find out from the statements in the plaint as to whether the suit was barred by any law and whether it disclosed any cause of action. In support of his submissions, the learned counsel for the petitioners relied on the case of P.V. Guru Raj Reddy Vs. P. Neeradha Reddy, (2015) 8 SCC 331 . 8. It is submitted that the petitioners do not dispute whether the respondents No.1 and 2 were the daughters or not. The question was that all the legal representatives/heirs of Late Abdul Hamid Ansari had inherited the tenancy jointly, and such right of inheritance did not create tenancy in the nature of severable tenancy, common tenancy or a co-tenancy. In support of his submissions, the learned counsel for the petitioners has relied on the case of H.C. Pandey Vs. G.C. Paul, (1989) 3 SCC 77 . 9. By referring to the provisions of Order XXII Rule 4(2) CPC, the learned counsel for the petitioners submit that the substituted LRs, i.e. defendants No. 1, 3 and 4 had relied on the written statement filed by their father on 06.11.1990 and even if the respondents No.1 and 2 was impleaed in the said TS No. 21/2007, in view of the said provisions of Order XXII Rule 4(2) CPC, they could not have been permitted to take any stand not appropriate to their legal character. Hence, they would still be a joint tenant together with all other LRs of the original defendant. In this context, it is further submitted that the categorical findings of both the courts below was that the defendants were defaulters and it was not the case of the defendants that at any point of time they had paid any monthly rent to the petitioners and, as such, the issue of the defendants being a defaulter included their father, as well as all the joint tenants, being the LRs of the original defendant. Hence, notwithstanding that the petitioners were not made defendants in the suit, but even if they were impleaded, they could not have improved the said fact. 10. It is also submitted that all LRs of the original tenant would inherit joint tenancy, and as the respondents No.1 and 2 had impleaded 7 LRs on record, the non- joinder of the petitioners in the suit cannot be said to be fatal because the estate of the deceased father of the respondents No.1 and 2 was substantially represented by 7 of his LRs and, as such, the respondents No.1 and 2 as well as any other LRs who may be inadvertently left out were also bound by the decree. In support of his submissions, the learned counsel for the petitioners has relied on the case of (1) Mohd. Hussain (Dead) by LRs & others Vs. Occhavlal & Ors., (2008) 3 SCC 233 , (ii) Surayya Begum (Mst) Vs. Mohd. Usman & Others, (1991) 3 SCC 114 . 11. Per contra, opposing the present application, the learned counsel for the respondents No.1 and 2 has read over the petition of Misc. (J) Case No. 75/2015 arising out of TS 30/2015 under Order VII Rule 11 CPC to press home the point that there was no averment that the plaint was barred by any law or that there was no cause of action for the suit. Therefore, it is submitted that the impugned order was rightly passed. It is further submitted that although there was a total absence of any statement that the plaint/ suit was barred by any law, yet, the learned trial court had evaluated each and every statement made in the plaint and arrived at a conclusion that there was no ground to reject the plaint. 12. It is submitted that it was a question of fact as to whether the interest of the respondents No.1 and 2 were really represented by others, which must be decided by framing issues and by leading evidence. In support of his submissions, the learned counsel for the respondents No.1 and 2 has also relied on the case of Surayya Begum (supra). 13. In support of his submissions, the learned counsel for the respondents No.1 and 2 has also relied on the case of Surayya Begum (supra). 13. It is further submitted that the petitioners have approached this court under Article 227 of the Constitution of India, where the jurisdiction of this court is very limited to see only whether any jurisdictional error was committed by the learned trial court and to keep it within its legal bounds. It is submitted that even if the decision by the learned trial court was erroneous, yet, this court under Article 227 of the Constitution of India would not have power to substitute its view over the discretion exercised by the learned trial court. 14. At the outset, this court had put a pointed question to the learned counsel for the respondents No.1 and 2 as to how many legal heirs did the father of the respondents No.1 and 2 had left at the time of his death. On consulting their records, the learned Counsels for the respondents No.1 and 2 had submitted that at the time of his death, the father of the petitioners had left behind 7 sons and 5 daughters, out of which only 5 sons and 3 daughters were impleaded. Therefore, going by the nature of suit filed, this Court finds that the respondents No.1 and 2 had themselves only impleaded 7 siblings as defendants No. 3 to 9 in TS No. 31/2015. Therefore, from the said submission, it appears to this court that there is still scope for 3 remaining siblings to also come forward to challenge the decree, passed in TS No. 21/2007 and also to challenge the decree, if any, passed in TS No. 31/2015. 15. Upon hearing the learned counsels for both sides, the following point of determination arises in the present case:- (i). What are the materials on which the learned trial Court is to rely while deciding an application under Order VII Rule 11 CPC? (ii). Whether the respondents are bound by the decree passed in TS No. 21/2007 (formerly TS 73/1989) and, whether the order dated 08.09.2015 passed by the learned trial court is vitiated by jurisdictional error for not rejecting the plaint of TS No. 30/2015? 16. The aforesaid points of determination are taken up together. (ii). Whether the respondents are bound by the decree passed in TS No. 21/2007 (formerly TS 73/1989) and, whether the order dated 08.09.2015 passed by the learned trial court is vitiated by jurisdictional error for not rejecting the plaint of TS No. 30/2015? 16. The aforesaid points of determination are taken up together. As per the respondents No.1 and 2, the petitioners, who are the married daughters of Late Abdul Hamid Ansari, the original tenant and defendant in TS No. 21/2007 were a necessary party, required to be impleaded as one of the substituted LRs of the said original defendant in TS No. 21/2007. (i). First of all, if the plea of the respondents No.1 and 2 that they also inherited the estate left behind by their father is at all acceptable, then the said inheritance must be under the principles of Mohammedan Law. The petitioners, being two out of 5 sisters would get their share as a reversionary and, as such, they do not inherit a separate share but they acquire their shares jointly. Hence, under the principles of Mohammedan Law, if tenancy is inherited, all the legal heirs take the estate jointly and the tenancy partakes the character of joint tenancy and the respondents No.1 and 2 do not become tenants in common or acquire any right of co-tenancy. (ii). As the respondents No.1 and 2 take the character of joint tenants, as such, the estate left behind by the father of the respondents No.1 and 2 must be deemed to be sufficiently represented by seven out of nine legal heirs (for time being on record). Notwithstanding that the learned counsel for the respondents No.1 and 2 had submitted that the original defendant/ tenant in TS No. 21/2007 had 12 children, but at this stage, in the absence of any material on record, this court does not take cognizance of remaining 3 legal heirs who are left out by the respondents No.1 and 2 in TS No. 31/2005. (iii). At this stage, it would be relevant to refer to the provisions of Explanation-VI of Section 11 CPC. (iii). At this stage, it would be relevant to refer to the provisions of Explanation-VI of Section 11 CPC. It provides that “Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating.” Therefore, when 7 legal heirs of original defendant were made parties in TS No. 21/2007, it can be deemed that the right so agitated/ defended comes within the scope of Explanation-VI of Section 11 CPC. (iv). As an example, assuming that the respondents No.1 and 2 had jointly inherited the tenancy, then they are also deemed to be aware that her father, when alive, was litigating with his landlord. Yet, at the relevant time, the said respondents did not come forward to get themselves impleaded. It is not their projected case in the plaint of TS No. 31/2015 that there was any collusion between the petitioners- landlord and the 7 substituted LRs of sole defendant in TS No. 21/2007. Therefore, under the provisions of Explanation-VI of Section 11 CPC, all the LRs arrayed as substituted defendants in TS No. 21/2007 are deemed to be litigating for the respondents No.1 and 2. For this proposition, this Court relies on the case of Surayya Begum Vs. Mohd. Usman, (1991) 3 SCC 114 (para-9), where the appeal arising out of the claim of daughters of tenant was dismissed. The said paragraph is quoted below:- “9. The principle of representation of the interest of a person, not impleaded by name in a judicial proceeding, through a named party is not unknown. A karta of a Joint Hindu Family has always been recognised as a representative of the other members of the Joint Hindu family, and so has been a trustee. In cases where the provisions of Order I, Rule 8 of the Civil Procedure Code are attracted a named party in a suit represents the other persons interested in the litigation, and likewise a receiver appointed in one case represents the interest of the litigating parties in another case against a stranger. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision. Examples can be multiplied. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision. Examples can be multiplied. It is for this reason that we find Explanation VI in the following words in Section 11 of the Code of Civil Procedure: “Explanation VI. — Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” This, of course, is subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, his interest has been looked after in a bona fide manner. If there be any clash of interests between the person concerned and his assumed representative or if the latter due to collusion or for any other reason, mala fide neglects to defend the case, he cannot be considered to be a representative. The issue, when it becomes relevant, has, therefore, to be answered with reference to the facts and circumstances of the individual case. There may be instances in which the position is absolutely clear beyond any reasonable doubt one way or the other and the question can be settled without any difficulty; but in other cases the issue may have to be decided with reference to relevant evidence to be led by the parties. Surayya Begum's case is of this class while Renu Sharma's appeal belongs to the first category.” (v). Hence, non- impleading of the respondents No.1 and 2 in TS No. 21/2007 cannot be said to be fatal to the executablity of the decree passed in the said suit. (vi). The plaint of TS No. 31/2015 does not disclose that which of the LRs of the father of the respondents No.1 and 2 were doing business from the suit premises. It is certainly not projected that the respondents No.1 and 2 are receiving any share from the profit or loss arising from the said business. It is not even pleaded that the respondents No.1 and 2 are paying any rent to the petitioners- landlord. It is certainly not projected that the respondents No.1 and 2 are receiving any share from the profit or loss arising from the said business. It is not even pleaded that the respondents No.1 and 2 are paying any rent to the petitioners- landlord. Moreover, as per the statements made in paragraph 14 of the plaint of TS No. 31/2015, there is a specific statement that the petitioners are residing in the suit premises, which is admittedly a commercial shop even as per the schedule described in the plaint. Therefore, there has been a definite change of the use of the shop. This is a situation which is covered by Proviso (a) of Section 5(1) of The Assam Urban Areas Rent Control Act, 1972, being an act covered by Clause (o) of Section 108 of the Transfer of Property Act, 1882. But save and except passing a comment, for the present the said issue has not influenced this Court. (vii). In course of hearing another interesting facet has cropped up. The learned counsel for the petitioners had sought oral leave to produce certified copies of documents filed along with the plaint of TS No. 31/2015 to show collusion between the defendants therein by showing that the photocopy of certified copies of documents would indicate that such copies were available with the petitioners several years prior to the institution of the suit and, as such, the plea that the respondents No.1 and 2 came to know about the decree only on 20.04.2015 was false. However, as no leave was granted, at present, this issue has not influenced this court. (viii). As the estate of the father of respondents No.1 and 2 is found to be represented 7 (seven) legal heirs in TS No. 21/2007, the estate must be held to be sufficiently represented in the suit and the omission to array the two respondents No.1 and 2, as the deceased’s legal heirs, who had never asserted her right over the shop or participated in its management or in sharing profits and loss, cannot be permitted to defeat the decree passed in TS No. 21/2007 (formerly TS 73/1989) after 28 years of litigation as on this day, after such decree has been upheld by the Hon’ble Supreme Court. In absence of any proof to the contrary, it must be deemed by necessary implication that the respondents No.1 and 2 had surrendered their respective rights, if there be any, in favour of the defendants made parties in TS No. 21/2007. (ix). The respondents No.1 and 2 were neither a necessary nor a proper party in TS No. 21/2004 and, as such, the said suit cannot be said to be bad for their non-joinder as a co-defendants in the suit, as the estate of their father was sufficiently represented by the defendants already impleaded as LRs in the suit. (x). It would be relevant to refer to the Constitution Bench of the Hon’ble Supreme Court of India, in the case of N.K. Mohd. Sulaiman Sahib Vs. N.C. Mohd. Ismail Saheb, AIR 1966 SC 792 (para 14) has held that “…Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or at even partially, in the absence of fraud or collusion or other ground which taint a decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion.” Thus, there being no taint on the decree in TS No. 21/2007, the non-impleading of any remaining LRs of the original tenant including the respondents No.1 and 2 does not vitiate the decree passed in TS No. 21/2007 (formerly TS 73/1989), as the decree has been upheld by the Hon’ble Supreme Court of India as indicated above. The orders of the Hon’ble Supreme Court of India cannot be permitted to be diluted by filing of subsequent suit i.e. TS No. 31/2017. (xi). The categorical finding by this Court are (i) TS No.21/2007 (formerly TS 73/1989) was maintainable despite the respondents No.1 and 2 not being arrayed because the remaining LRs of deceased defendant were sufficiently representing the estate of the deceased. (xi). The categorical finding by this Court are (i) TS No.21/2007 (formerly TS 73/1989) was maintainable despite the respondents No.1 and 2 not being arrayed because the remaining LRs of deceased defendant were sufficiently representing the estate of the deceased. If the respondents No.1 and 2 has any grievance, it can be agitated without impleading the petitioners herein, if so advised, (ii) The decree passed in TS No. 21/2007 (formerly TS 73/1989), which has been upheld by the Hon’ble Supreme Court binds not only the respondents No.1 and 2, but also any other LRs of the original defendant Late Abdul Hamid Ansari, if at all they have been left out. Thus, the second suit i.e. TS No. 21/2007 (formerly TS 73/1989) is hit by the principles of res-judicata. (xii). Hence, the cumulative result of the discussions above is that the plaint of TS No. 31/2015 was not maintainable as there was no cause of action for the suit and the suit was barred by law, for which the plaint of TS No. 31/2015 was liable to be rejected. 17. The Points of determination are answered as follows:- (i). As regards the first point of determination, as to What are the materials on which the learned trial Court is to rely while deciding an application under Order VII Rule 11 CPC?, this court is of the opinion that the Hon’ble Supreme Court of India has already settled the said issue in the case of P.V. Guru Raj Reddy (supra), for which the said issue need not be answered again. The relevant paragraph 6 and 7 of the said case are quoted below:- (ii). On the second point of determination, i.e. whether the respondents are bound by the decree passed in TS No. 21/2007 (formerly TS 73/1989) and, whether the order dated 08.09.2015 passed by the learned trial court is vitiated by jurisdictional error for not rejecting the plaint of TS No. 30/2015?, for the reasons as assigned in paragraph 16 above and as briefly summed up in paragraph 19, 20 and 21 below, this court is of the opinion that the respondents No.1 and 2 are bound by the decree passed in TS No. 21/2007 (formerly TS 73/1989) and therefore, the order dated 08.09.2015 passed by the learned trial court is vitiated by jurisdictional error for not rejecting the plaint of TS No. 30/2015. 18. 18. There is one more aspect of the matter. Both the Courts below have held that the Defendants were a defaulter. This is a concurrent finding of fact. Thus not only the Defendants in TS No. 21/2007, but anyone who has inherited the estate of Late Abdul Hamid Ansari are bound by the said finding as well as the decree. Therefore, even if the respondents No.1 and 2 herein were impleaded in the suit, the said finding of defaulter cannot be wished away as admittedly they never tendered any rent to the petitioners- landlord at any point of time. A defaulter legatee cannot be permitted to file successive suits to scuttle a lawful decree passed in TS No. 21/2007 (formerly TS 73/1989). The subsequent suit is not maintainable on this Court. 19. As a result, the first appellate court is found to have exercised jurisdiction with material irregularity by incorrectly appreciating the facts and law. Amongst other reasons as stated herein before, the impugned order appears to be contrary to the Constitution Bench judgment of the Hon’ble Supreme Court of India in the case of N.K. Mohd. Sulaiman Sahib (supra) and moreover, the said learned court has also failed to appreciate the provisions of Explanation-VI of Section 11 CPC. Thus, the subsequent suit, i.e. TS No. 31/2015 appears to have been filed in order to frustrate the lawful decree passed in TS No. 21/2007 [TS No.73/1989 (Old)], and the non- joinder of the present respondents No.1 and, namely, Smt. Fatima Begum and Smt. Asgari Begum or any other legal heir of Late Abdul Hamid Ansari is not fatal to the TS No. 21/2007 as their interest was sufficiently represented by other 7 legal heirs of their father. Moreover, the lawful decree passed in TS No. 21/2007 has attained finality, having been upheld by the highest Court of the land i.e. Supreme Court of India, which must be respected as the said decree is not found to be tainted in any manner. Hence, the learned Civil Judge, Tinsukia, is held to have committed jurisdictional error as indicated above. 20. Hence, the learned Civil Judge, Tinsukia, is held to have committed jurisdictional error as indicated above. 20. Therefore, in view of the discussions above, the TS No.21/2007 [TS No.73/1989 (Old)] is found to be maintainable and the said suit is not hit by non- joinder of the present respondents No.1 and, namely, Smt. Fatima Begum and Smt. Asgari Begum or any other legal heir of Late Abdul Hamid Ansari as the estate of the deceased is found to be sufficiently represented in the said suit and such decree which has attained finality after about 26 years of litigation which started in the year 1989 cannot be allowed to be frustrated. The TS No.31/2015 is therefore, barred by the principles of res-judicata and lack of cause of action. The decree passed in TS No. 21/2007 [TS No.73/1989 (Old)] is not liable to be interfered with, because it has been upheld by the Hon’ble Supreme Court of India by order dated 30.01.2015, passed in SLP (Civil) No. 17055/2015. 21. Therefore, for the reasons as indicated above, the order dated 21.04.2016, passed by the learned Civil Judge, Tinsukia, in Misc. (J) Case No. 75/2015 arising in TS No. 31/2015 is not sustainable and the same is set aside, being vitiated by jurisdictional error. Consequently, Misc. (J) Case No. 75/2015 arising in TS No. 31/2015 stands allowed and the plaint of TS No. 31/2015 stands rejected. 22. As the Hon’ble Supreme Court of India by order dated 30.01.2015, passed in SLP (Civil) No. 17055/2015, had directed the defendants in TS No. 21/2007 to grant time till 31.01.2016 to vacate the suit premises, the petitioners have the liberty to move the learned Executing Court to do the needful. 23. This application stands allowed. The parties are left to bear their own cost.