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2022 DIGILAW 1057 (GUJ)

Kamlaben Doulatram Khatri v. Devidas Dulhannomal

2022-09-21

A.S.SUPEHIA

body2022
JUDGMENT : 1. The present revision application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Rent Act) emanates from the judgment and order dated 27.04.2015 passed by the appellate bench of Small Causes Court, Ahmedabad in Regular Civil Appeal No.104 of 2010, whereby the appellate court has allowed the appeal filed by the opponent-original defendant No.2 by setting aside the judgment and decree dated 29.09.2010 passed by the trial Court in HRP Suit No.727 of 2005. The parties shall be referred as per the original status in the suit proceedings. 2. The plaintiffs instituted HRP Suit No.725 of 2005, being landlords of the suit premises i.e. Shop No.2, admeasuring about 146.81 sq.yard, situated at the Ground Floor of Kandhari Apartment, in Survey Nos.54, 57 and 58 paiki, situated at Saijpur Bogha, District-sub-district Ahmedabad. 2.1 It is the case of the plaintiffs that the defendant No.1, had sublet the suit premises to the defendant No.2 and accordingly the suit was instituted seeking recovery of possession of the suit premises as well as for recovery of mesne profit and for permanent injunction for handing over the possession of the suit premises. 2.2 From the judgement of the trial Court, it appears that since the plaintiffs did not take care to effect the summons upon the defendant No.1, the trial Court dismissed the suit of the plaintiffs against the defendant No.1 on 08.09.2005. The defendant No.2 appeared before the trial Court below and contested the suit. After examining the evidence both - documentary as well as oral, the trial Court framed issues at Exh.50 and allowed the suit filed by the plaintiffs and directed the defendant No.2 to handover the vacant and peaceful possession of the suit premises. 2.3 Being aggrieved by the aforesaid judgment and decree passed by the trial Court, the defendant No.2 filed Regular Civil Appeal No.104 of 2010, which came to be allowed and the judgement and decree passed by the trial Court was set aside, which has given rise filing of the present revision application. 3. Learned advocate Mr. Dave appearing for the appellants-original plaintiffs has submitted that both the courts below have held in favour of the plaintiffs however, the appellate Court has allowed the appeal only on the point that the suit was liable to be dismissed since it was dismissed qua the original tenant-defendant No.1. 3. Learned advocate Mr. Dave appearing for the appellants-original plaintiffs has submitted that both the courts below have held in favour of the plaintiffs however, the appellate Court has allowed the appeal only on the point that the suit was liable to be dismissed since it was dismissed qua the original tenant-defendant No.1. He has submitted that the judgment and decree passed by the appellate court is required to set aside since the evidence on record reveals that the defendant No.1 had sublet the property to the defendant No.2 against the agreement executed between the plaintiffs and the defendant No.1. He has referred to such rent agreement dated 01.11.1988 (Exh.60). 3.1 Learned advocate Mr. Dave has submitted that the evidence clearly reflects that the original tenant i.e. defendant No.1 had sublet the suit shop and hence, as per the provision of Section 16 of the Rents Act, the defendant No.1 had no right to sublet / transfer the possession of the suit shop without prior consent of the plaintiffs or landlord. He has submitted that the appeal since is allowed only on the sole point with regard to dismissal of the suit apropos the defendant No.1, the order requires to be set aside since the suit can always be contested and proceeded against the defendant No.2, who was the tenant. It is submitted that the plaintiff No.1, who is widow and aged about 72 years is waiting for the suit premises to be utilized by her. 3.2 Learned advocate Mr. Dave has placed reliance on the judgement of the Apex Court in the case of Joy Nath Goala & Ors. vs. Bhabani Prasad Choudhary & Ors., (1997) 10 S.C.C. 276 , while distinguishing the judgement in the case of Raghuram Rao Vs. ERIC P. Mathias, (2002) 2 S.C.C. 624 , on which the reliance is placed by the appellate court. He has submitted that the said decision will not apply to the facts of the present case since before the Apex Court, the issue with regard to lease was under examination whether the condition was for the benefit of the leaser or those claiming under him, as provided under Section 10 of the Transfer of Property Act, 1882. He has submitted that the said decision will not apply to the facts of the present case since before the Apex Court, the issue with regard to lease was under examination whether the condition was for the benefit of the leaser or those claiming under him, as provided under Section 10 of the Transfer of Property Act, 1882. It is submitted that in case before the Apex Court, the heirs of the deceased lessee were not joined as party defendants in the suit proceedings, whereas in the present case, the entire proceedings are governed by the terms and conditions of the agreement Exh.60. It is submitted that the defendant No.1 had sublet the suit property to the defendant No.2 without their consent. Thus, he has submitted that the appellate order is required to be set aside and the judgement and decree passed by the trial Court in HRP Suit No.727 of 2005 may be confirmed. 4. Per contra, learned advocate Mr. Gandhi appearing for the defendant No.2 has submitted that the impugned order does not require any interference. He has referred to the observations made by the appellate court in the order and has submitted that in fact the evidence reveals that the defendant No.2 was in possession of the suit premises. It is submitted that once the suit against the defendant No.1, who was the original tenant, is dismissed, the defendant No.2, even if it is assumed that the property is sublet, cannot be proceeded against him. Learned advocate has submitted that in fact the error committed by the trial Court is corrected by the appellate court and hence, the plaintiffs are not entitled for decree of eviction in wake of the fact that the suit was dismissed apropos the defendant No.1. CONCLUSION: 5. The fact as stated hereinabove reflects that HRP Suit No.727 of 2005 was instituted by the plaintiffs seeking peaceful possession and permanent injunction of the suit premises, which was allowed vide judgement and decree dated 29.09.2010, wherein the defendant No.2 was directed to handover the vacant and peaceful possession of the suit property. It is an established fact that the summons on the defendant No.1 was not served by the plaintiffs and the Court dismissed the suit against the defendant No.1 on 08.09.2005 and the suit proceeded further against defendant No.2, who contested the suit. It is an established fact that the summons on the defendant No.1 was not served by the plaintiffs and the Court dismissed the suit against the defendant No.1 on 08.09.2005 and the suit proceeded further against defendant No.2, who contested the suit. The trial Court, after examining the evidence which was produced on record, answered issue Nos.1 and 2, framed below Exh.50, in “affirmative”. Issue Nos.1 and 2 framed below Exh.50 are as under : “1. Whether the plaintiff proves that the defendant No.2 has unlawfully sublet, assigned or otherwise transferred the suit premises to the defendant No.2 and thereby profiteering? 2. Whether the plaintiff is entitled to possession ? 6. There were in all five issues framed by the trial Court, however, adjudication of the relevant issues would issue Nos.1 and 2 as narrated hereinabove. Plaintiffs instituted the suit for recovery of possession of the suit premises from the defendants under the provisions of Section 13(1)(e) of the Rents Act i.e. unlawful subletting, assigning and transfer of the suit premises to defendant No.2 and thereby profiteering by subletting such suit premises without consent of the landlord i.e. plaintiffs. After examining the evidence both – oral as well as documentary, the suit was decreed in favour of the plaintiffs. The defendant No.2 was examined below Exh.82, wherein he had produced documents in support of his defence at Exh.83 to 90, 92 and 98. He has also examined witnesses at Exh.102, 104 and 106 to establish that his business is running, which was being purchased from the defendant No.1. From the evidence on record, it is manifest that defendant No.2 has in fact proved that he has been running the business in the suit premises and defendant No.1 had sublet the suit premises to him. No documentary evidence was produced, which would suggest that such subletting of premises was with the consent of the plaintiffs. 7. It would be apposite to refer to the Court Commissioner’s Report at Exh.100. The Commissioner was appointed for local inspection by the trial Court, who took the visit of the suit shop and at that time the defendant No.2 was present and two panchas were also present and it was found that in the suit shop articles like incense stick, paste, fast-food, cold-drinks, etc. were stored in the suit shop. 8. This Court has perused the evidence of the witnesses produced by the defendant No.2. were stored in the suit shop. 8. This Court has perused the evidence of the witnesses produced by the defendant No.2. The witnesses and defendant No.2 have asserted that the said suit premises has been used by the defendant No.2 for running the business of sunmica and plywood, etc., which runs contrary to the report of the Commissioner. It is pertinent to note that both – the trial Court as well as the appellate Court have arrived at a conclusive findings on the basis of the evidence that the defendant No.2 was running the business, which he purchased from the original tenant – defendant No.1. 9. It is also observed by the appellate Court that defendant No.2 is not entitled to retrain the possession of the suit shop and it is observed that looking to the report of the Commissioner since defendant No.2 is not running the business of sunmica and plywood, which he has purchased, he has committed breach of condition of notification issued by the Government under section 15 of the Rents Act and, therefore, he is not entitled to retrain the possession of the suit shop. The appellate Court has in fact recorded and confirmed that the trial Court is found correct in concluding that defendant No.2 is entitled to retain the possession of the suit shop and is required to be evicted the same, however, the appeal is only allowed by observing thus : “23. In view of all the above discussion, the appeal deserves to be allowed on the point that the suit was liable to be dismissed, because of the suit against original tenant-in-chief, i.e. original ‘defendant No.1’ is dismissed, hence the suit against only sub-tenant is not tenable. Therefore, the judgment and decree passed in H.R.P. Civil Suit No.727 of the year 2005 is liable to be set-side. Hence the answer comes to point no.1 is ‘in the affirmative’. Hence the following order is passed.” 10. The appellate Court has allowed the appeal and set aside the judgement and decree passed by the trial Court only for sole reason that since the suit against the defendant No.1 is dismissed, the suit again the tenant is not tenable. Hence the answer comes to point no.1 is ‘in the affirmative’. Hence the following order is passed.” 10. The appellate Court has allowed the appeal and set aside the judgement and decree passed by the trial Court only for sole reason that since the suit against the defendant No.1 is dismissed, the suit again the tenant is not tenable. While placing reliance on the judgement of the Apex Court in the case of Raghuram Rao (supra) in Paragraph No.19 of the judgement and order the Appellate Court has recorded thus : “ … … … It is not in dispute that the plaintiffs joined the chief tenant as defendant No.1. But as the plaintiffs failed to serve the summons to him, the suit against him is dismissed for default under Order 9 Rule 5 of the Code of Civil Procedure, 1908. The effect of that would be that the plaintiff not joined the chief tenant ab-initio. On the vary moment, the suit against defendant No.1 dismissed, the defendant No.2 became sole defendant and not remain as defendant No.2. Merely because initially the chief tenant was joined as party-defendant, it cannot be said that the suit dismissed against him would not change the circumstances. Therefore, in view of the judgment of Hon. Supreme Court in the case of “RAGHURAM RAO” (supra) and in light of the circumstances of the case, the suit suffers from non joinder of necessary party, i.e. the original tenant. … … …” 11. Thus, the Appellate Court has specifically observed that since the suit against defendant No.1 is dismissed for default under Order IX Rule 5 of the CPC, effect of that would be that the plaintiff, who has not joined the Chief tenant ab-initio and hence on the very moment, when the suit against the defendant No.1 is dismissed, the defendant No.2 became the sole defendant and has not remained defendant No.2. Finally, it is observed that in view of the judgement of the Apex Court in case of Raghuram Rao (supra) since the suit suffers from non-joinder of the necessary party i.e. original tenant, the suit cannot be decreed in favour of the plaintiffs. 12. The established fact is that the suit was dismissed qua defendant No.1, the original tenant due to default vide order dated 08.09.2005, passed below Exh.36 since the plaintiffs, who did serve the summons and process of the Court. 12. The established fact is that the suit was dismissed qua defendant No.1, the original tenant due to default vide order dated 08.09.2005, passed below Exh.36 since the plaintiffs, who did serve the summons and process of the Court. The suit thereafter, continued against the defendant no.2, who was in possession of the suit property. The entire suit is instituted on the premise that the defendant no.1 has sublet the suit property to the defendant no.2 de hors the contract or the agreement, Exh.60 without taking any consent from the plaintiffs. At this stage it will be apposite to refer to the provision of Order IX Rules 5 and 11 of the C.P.C. The same read as under : “5. Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons. [(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of 6 [seven days] from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that— (a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.] (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit. 11. Procedure in case of non-attendance of one or more of several defendants.—Where there are more defendants than one, and one or more of them appear and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.” 13. A conjoint reading of the provisions of Order IX Rule 5 and 11 of the CPC will propose that if there are more than one defendants in a suit and one or more of them appear and other do not appear, the suit has to be dismissed against “such defendant” or the suit can proceed against the other defendants. The language of Order IX Rule 5 of the CPC specifically uses the expression dismissal of the suit against “such defendant” to whom the plaintiff is unable to serve the summons. There is no provision under Order IX of the CPC, which prescribes dismissal of the entire suit in case one of the defendants chooses not to appear or the plaintiff does not serve the process on such defendant. Hence, the trial Court has fallen in error in dismissing the entire suit in wake of the fact that the suit will survive against the defendant no.2, who was occupying the suit premises. 14. The plaintiffs cannot be put to any adverse decision only because the suit against defendant No.1-original tenant is dismissed for default. The plaintiffs can still assert their right over the property, being the owners, by filing the suit and continue the suit seeking decree of eviction and to hand over peaceful possession of the suit property against the defendant no.2, who is in actual possession and is enjoying the suit property. 15. The judgement in the case of Raghuram Rao (supra), which has been relied upon by the appellate Court would reveal that the same would not apply to the facts of the present case as the decision of the Apex Court in the case of Raghuram Rao (supra) reveals that the same pertains to the provisions of section 10 of the Transfer of Property Act, where the property is transferred in case of lessee where the condition is for benefit of lesssor or under him. The facts also suggest that the heirs of the deceased lessee were not joined as party defendants, whereas in the present case defendant No.1-original tenant was joined as a party respondent, however, he was subsequently deleted. In the case of Joy Nath Goala & Ors. (supra), the Apex Court has observed thus : “We find force in the contention of shri N.R. Choudhury, learned counsel for the appellants, that the view taken by the High Court is wholly incorrect. In the case of Joy Nath Goala & Ors. (supra), the Apex Court has observed thus : “We find force in the contention of shri N.R. Choudhury, learned counsel for the appellants, that the view taken by the High Court is wholly incorrect. As regards the first point, Bhuban choudhury was a tenant at one point of time and, in fact, in the prior suit filed in 1947, he had not claimed any interest and had remained only proforma defendant to the suit and the respondents had suffered consent decree. It was also admitted position that the suit was filed against the respondents and not against Bhuban Choudhury who disclaimed interest. In the cross-examination of the appellant it has been suggested that: "I do not know where Bhuban Choudhury is. After getting written statement I did not made enquiry about Bhuban Choudhury." This suggestion amounts to an implied admission that Bhuban Choudhury was not residing in the premises in question. It clearly appears that Bhuban Choudhury was not claiming any interest as a licensee under the compromise decree, dated January 26,1948 nor was he in possession of the suit premiss. As a consequence, the omission to implead Bhuban Choudhury was of no consequence and the suit was not bad for non-joinder of necessary parties.” 16. In the aforesaid judgement, the Apex Court has observed that omission to implead defendant, who does not claim any interest and was not in possession of the suit premises and only had remained a pro forma defendant to the suit his non-joinder as necessary party was of no consequence. In the present case, the defendant No.1 has claimed no interest in the suit premises, as evidence reveals and it is in fact admitted by defendant No.2 that the suit premises was sublet to him by defendant No.1. 17. I have also perused the conditions of the agreement below Exh.60 executed between the plaintiffs and defendant No.1. The condition No.4 thereof specifically bars subletting or transferring or assigning the right of benefits by way of goodwill or to handover the suit premises without the consent of the owners, i.e. the plaintiffs. 17. I have also perused the conditions of the agreement below Exh.60 executed between the plaintiffs and defendant No.1. The condition No.4 thereof specifically bars subletting or transferring or assigning the right of benefits by way of goodwill or to handover the suit premises without the consent of the owners, i.e. the plaintiffs. The defendant No.2 has in fact examined the witnesses in his favour, who had deposed that he was in possession of the suit premises and is carrying out the business after the said suit premises was sublet by the defendant No.1 for carrying out the business. In view of the concurrent findings of fact by both the trial court and the appellate court that the defendant no.2 was using the suit property without the consent of the plaintiffs, by carrying out the business, which was not also as per the agreement between the plaintiffs and the defendant No.1, the decree of eviction passed by the trial Court was not required to be disturbed by the appellate Court only on the sole reason that the suit against the defendant No.1-original tenant was dismissed. 18. On the substratum of the aforenoted observations and analysis of evidence, the Civil Revision Application merits acceptance. The impugned judgment and decree dated 27.04.2015 passed in Regular Civil Appeal No.104 of 2010 is hereby quashed and set aside. The judgment and decree dated 29.09.2010 passed in HRP Suit No.727 of 2005 by the Small Causes Court No.7 at Ahmadabad is ordered to be restored. 19. Rule made absolute. No Orders as to Cost. Record and proceedings shall be returned.