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2017 DIGILAW 1438 (HP)

Sunita Goyal v. Chamba Mal Bhagra

2017-12-22

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant petition stands directed by the petitioner against the orders recorded, on, 3.12.2016 by the learned Rent Controller (2), Shimla in case No. 167-6 of 16/14, whereby, it dismissed an application instituted there before, under the provisions of Order 1, Rule 10 of the CPC. 2. The demised premises is a commercial premises, comprising, of one shop approximately measuring 450 sq. feet, shop whereof exists on the ground floor of the building AND a godown/store, approximately carrying an alike area, godown whereof exists in the first floor, of, building No.48, situated at Ward No.13, Lower Bazar, Shimla. The initially inducted tenant therein, was, one Amar Nath, who, died intestate in the year 1962. Consequently, upon his demise, prima facie his tenancy rights, upon, the demised premises devolved upon his legal heirs, one amongst whom is the applicant/petitioner herein, one Sunita Goyal. However, when the landlord instituted rent petition borne in Annexure P-2, in the year 2012, he omitted, to implead in the array of respondents/tenants, all the legal heirs, of, the initially inducted tenant, in the demised premises, named, one Amar Nath. The aforesaid eviction petition, was, filed on the ground of the demised premises being bonafide required by the petitioner for his personal use and occupation, for, enabling him to establish his business therein. Subsequent to the institution of the rent petition, the applicant/petitioner herein, who admittedly, is the daughter of the initially inducted tenant, named one Amar Nath, filed an application before the learned Rent Controller, application whereof, was cast under the provisions of Order 1, Rule 10 of the CPC, wherein, she sought her impleadment, in the rent petition, as a co-respondent in the apposite array of respondents. However, her application was dismissed. Consequently, she is aggrieved by the dis-affirmative order pronounced by the learned Rent Controller, hence, is driven to institute the instant petition before this Court. 3. The learned Senior Counsel appearing, for, the respondent/landlord, has, made concerted endeavour, to validate the impugned pronouncement by contending that, on the tenant, impleaded as a sole respondent, in the rent petition, making liquidation, of, rent vis-a-vis the landlord, thereupon, his apposite attornments, being construable to be attornments, also on behalf of the applicant. 3. The learned Senior Counsel appearing, for, the respondent/landlord, has, made concerted endeavour, to validate the impugned pronouncement by contending that, on the tenant, impleaded as a sole respondent, in the rent petition, making liquidation, of, rent vis-a-vis the landlord, thereupon, his apposite attornments, being construable to be attornments, also on behalf of the applicant. He also proceeds to contend that even if the applicant, is, the legal heir of deceased Amar Nath, yet given the impleaded tenant, in the apposite rent petition, making the apposite attornment vis-a-vis the landlord qua the demised premises,for himself besides on her behalf, (i) hence begetting a further inference, of, the impleaded tenant, in the rent petition, also, representing the interests, of, the applicant herein, in the rent petition also any decree as may come to be pronounced upon the eviction petition and upon the tenant impleaded therein, being irresistible, rather it being executable even against the applicant/petitioner herein. Consequently, he contends that thereupon the impleadment of the applicant/petitioner herein, being, neither just nor essential, (i) nor hers being hence either a necessary or a proper party, in the rent petition, AND (II) that the dis-affirmative pronouncement recorded by the learned Rent Controller upon her application, warranting vindication. In making the aforesaid submission, he places reliance upon a judgment of the Hon'ble Apex Court rendered in a case titled as Ashok Chintaman Juker and others v. Kishore Pandurang Mantri and another, AIR 2001 SC 2251 , the relevant paragraph No. 16 whereof, is reproduced hereinafter:- “16. In the case on hand, as noted earlier, on the death of the original tenant Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of his widow Smt. Kishori Kesrinath Juker. It is not the case of the appellant no.1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed the appellant no.1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. Indeed the appellant no.1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the circumstances the decree passed in terms of the compromise entered between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid nor in executable against any person who claims to be a member of the family residing with the original tenant, and therefore, a tenant as defined in section 5(11)(c). The position that follows is that the appellants have no right to resist on the ground that the decree is not binding on them. Further, the trial court and the appellate court concurrently held that the appellant no.1 has not been residing in the premises since 1962 i.e. when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant no.1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. In that view of the matter the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle the appellants have no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court and the High Court rightly confirmed the said order. This appeal being devoid of merit is dismissed with costs which is assessed at Rs.10,000/-.” (p.2254 & 2255) He has also placed reliance, upon, a judgment of this Court rendered in a case titled as Leela Sood and others versus Manohar Lal, 2009(1) RLR 88, the relevant paragraph No. 26 whereof stands extracted hereinafter:- “26. This appeal being devoid of merit is dismissed with costs which is assessed at Rs.10,000/-.” (p.2254 & 2255) He has also placed reliance, upon, a judgment of this Court rendered in a case titled as Leela Sood and others versus Manohar Lal, 2009(1) RLR 88, the relevant paragraph No. 26 whereof stands extracted hereinafter:- “26. In the present case, Anita Sood is not residing in the premises in question since she is residing abroad. In view of the law laid down by their Lordships, as cited above and by the Delhi High Court and the Kerala High Court, it is held that the petition for eviction against the tenants was maintainable and Anita Sood was not a necessary party, since her interests were being watched by the other tenants, who inherited the tenancy from Joginder Sood.” (p....96) 4. Contrarily, the learned counsel appearing for the petitioner, has relied, upon verdicts rendered by this Court, in case titled as Vinod Kumar versus Rajesh Kumar and others, 1995(1)Sim. L. C., 452 and has also placed reliance upon another verdict of this Court rendered in a case titled as Balwant Rai versus Surjit Singh and others, 1996(2) Sim. L.C. 275, to make a vehement address before this Court that (a) when para materia therewith, the extant demised premises are commercial premises and (b) with the original initially inducted tenant in the demised premises, dying ab intestato, thereupon as mandated in the aforesaid verdicts, (c) devolution, of, rights of tenancies vis-a-vis the demised premises, occurring, in consonance with the general law of succession, rather upon all the legal heirs of the deceased tenant,, (d) thereupon, it was imperative for the landlord, to, also implead in the eviction petition, the applicant/petitioner herein, as a respondent/tenant along with, the already impleaded respondents/tenants, besides it was also incumbent upon the learned Rent Controller, to, pronounce an affirmative order upon the extant application. 5. The reliance placed by the learned counsel appearing for the petitioner upon the aforesaid verdicts, (i) is enfeebled by the factum of the aforesaid mandate, rather emanating, upon verdicts recorded by Civil Courts concerned, Courts whereof stood seized with disputes, a pertaining to the inheritability of commercial tenancies), besides with respect to devolution of tenancy rights, accruing, in consonance with the general laws of succession, upon, all the legal heirs of deceased/tenant concerned. Given the verdicts, as relied upon the learned counsel appearing for the petitioner, hence being pronounced upon civil suits, wherein, the Civil Courts, were, beset with the aforesaid controversyies, apparently, when hence hereat the trite precise factum, appertains, to, executability, of, decree of eviction pronounced, upon, eviction petitions, against, the legal heirs concerned, who, is excluded to be arrayed in the apposite arrays, of, respondents/tenants, in the apposite rent petition, (a) especially given the latter dying ab intestato, (b) AND rather were hence along with the impleaded tenant also enjoined to be impleaded, as respondents/tenants, in the apposite array, of, the tenants/respondents, remains not expostulated therein, (c) contrarily, with the factum of exclusion, of, one amongst all the legal heirs of the deceased/tenant, AND its effect, upon, the excitability, of, an order of eviction pronounced upon the impleaded tenant, rather stands firmly rested by verdicts relied, upon, by the learned counsel appearing, for the landlord/respondent, (d) besides when the verdicts pronounced in Ashok Chintman's case (supra) AND in Leela Sood's case (supra), apparently with aplomb stand rendered upon, para materia herewith apposite applications cast, during, the pendency of rent petitions, constituted, before the learned Rent Controller concerned also with the verdict, of, the Hon'ble Apex Court rendered in Ahsok Chitman's case (supra), though, is rendered qua residential premises, yet with its also (e) expostulating the principle of apposite attornments, of rent, by one of the legal heirs of the deceased original tenant, being attornments also on behalf of other legal heirs, of the deceased original tenant, who yet remain unimpleaded in the rent petition, (f) besides of impleadment of one amongst the legal heirs, of, the deceased original tenant, being mandated in Ashok Chintman's case (supra) rendered by the Hon'ble Apex Court, to be construable, to be a valid representation for himself besides on behalf of other unimpleaded legal heirs, of deceased original tenant, (g) AND of the decree pronounced vis-a-vis the demised premises being irresistible, (h) besides being executable upon all of them, does rather efface the vigour of the contention addressed before this Court by the learned counsel appearing for the petitioner. 6. 6. Consequently, the impeladment, of, the applicant/petitioner herein is neither just nor essential, neither she is a proper or a necessary party to the lis, (i) rather when she has not unfolded, in the petition, of her brother derelicting, in watching her interests in litigation, (ii) also when she has not adduced evidence, in respect of, hers, since 1962, when the demise of her father occurred, hence sharing the profits of business with him, (iii) thereupon also rather it is prima facie construed that she has abandoned besides waived her rights over the demised premises, nor hence she can claim for hers being impleaded as a respondent in the array, of, respondents, in the rent petition. 7. In view of the above, the instant petition is dismissed and the impugned order is maintained and affirmed. The parties are directed to appear before the learned trial Court on 12.01.2018. All pending applications also stand disposed off. No order as to costs. Records be sent back forthwith.