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2024 DIGILAW 2472 (ALL)

Bon Ton Plastics Pvt. Ltd. v. Ramesh Chawala

2024-12-05

AJIT KUMAR

body2024
JUDGMENT : Ajit Kumar, J. 1. Hear Sri Divakar Rai Sharma, learned counsel for the revision- applicant and Sri Ashish Kumar Singh, learned Advocate appearing for the landlord-respondent. 2. This revision application is directed against the final judgment and decree dated 02.02.2022 passed by the Judge, Small Causes Court in the suit of landlord-respondents in S.C.C. No.75 of 2013 for arrears of rent and ejectment. 3. It is an admitted position of fact between the parties that during pendency of the suit, the defence of the present petitioner was struck off under Order 15 Rule 5 CPC by the order passed by the trial judge on 31.05.2016 which was unsuccessfully challenged at a higher forum. Thus, there was no defence available to the trial court while it tried the suit of the landlord-respondents. 4. The judgment passed by the Judge, Small Causes Court has been challenged on following grounds: (i) there being two separate tenancies in respect of two different plot numbers being Plots Nos.72/6-A and 72/6-B standing in the name of Ramesh Chawla and Rita Chawala as per own admission in the plaint taken in paragraph 2 thereof, a single suit in respect of two tenancies may be tenancy was executed in favour of the single tenant was not maintainable in view of the provisions as contained under Order 2 Rule 3 CPC and hence judgment and decree was bad; (ii) even if the defence was not available to the court, the court ought to have gone into the question of maintainability of the suit for there being absence of lawful notice at the instance of single landlord namely Ramesh Chawala through its power of attorney. According to him, no document was brought on record in the suit acknowledging any power of attorney executed by Smt. Rita Chawala in favour of Ramesh Chawala to have entitled him to execute power of attorney in favour of a third person and (iii) there is a manifest error in the findings arrived at by the trial judge treating the suit maintainable on the ground that in the will executed by late Ramesh Chawala, he admitted that both Ramesh Chawala and Rita Chawala were co-owners of plots with share of 50% each. 5. 5. In support of his above submissions, learned counsel for the revision-applicant has taken the Court to the plaint allegations more especially, paragraph 2 thereof, the power of attorney executed by the Ramesh Chawala on behalf of his wife and in favour of Shiv Charan Singh Chauhan on 28.11.2011 and also a subsequent power of attorney executed after institution of suit proceedings by both husband and wife on 22.10.2013 in supersession to the earlier power of attorney and also the notice issued by the power of attorney holder on behalf of landlord dated 01.08.2013. 6. Mr. Sharma has taken the Court to the finding part of the judgment of the trial court on ground no.(i) in which it has dealt with the will executed by Ramesh Chawala and the case set up for eviction of the tenant on the premise that there existed jural relationship between the landlord and the tenant. 7. Meeting the above submissions, Mr. Ashish Kumar Singh, learned Advocate appearing for the respondent- landlord placed a Division Bench judgment of this Court in the case of Jamiluddin v. Shamsuddin , 1999 (1) A.R.C. 46 , in which suit for several causes of action against the same defendant was held to be maintainable by interpreting provisions relating to joinder of causes of action as prescribed for under Order II Rule 3 CPC. Mr. Singh has further reiterated that the plaint allegations in paragraphs 2 & 3 to be more specific in asserting that although there were two deeds of tenancy created but the tenancy with the conduct of parties was taken to be one tenancy only as it was measured as one plot being area of 7000 sq.ft. and totaling to one rent at Rs.19,950/- per month. 8. Mr. Singh argued that one notice was sufficient in respect of two tenancies against one tenant in occupation of the tenanted premises more especially when there was a power of attorney executed. He further argued that in absence of defence of the revision-applicant being taken into consideration, the plaint allegations and the evidence led by the plaintiff had to be appreciated and which has been more judiciously done by the trial judge. He further argued that in absence of defence of the revision-applicant being taken into consideration, the plaint allegations and the evidence led by the plaintiff had to be appreciated and which has been more judiciously done by the trial judge. He submitted that in the absence of challenge to the jurisdiction to entertain a suit unless the jurisdiction is barred, the suit would be liable to be held maintainable and hence could be very well decreed in absence of defence as well. 9. Having heard learned counsel for the respective parties and their arguments raised across the bar, the main point that arises for consideration of this Court is, as to whether the trial judge erred in law or on facts in decreeing a suit filed by two landlords against one tenant. Since much emphasis was laid upon Order II Rule 3 CPC, same is reproduced hereinunder for its better appreciation: " 3. Joinder of causes of action: (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defenants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit." 10. From a bare reading of the aforesaid provision, following principles emerge: (a) a plaintiff can sue a defendant for several causes of action in a single suit; (b) the plaintiff can equally sue several defendants for several causes of action jointly in a suit; (c) more than one plaintiffs can join a suit in a cause of action in which they are interested against the same defendant and (d) same defendants may jointly unite also in such causes of action for the same suit. 11. The principle no.(c) as quoted above, is attracted in the setting of facts of the present case. 11. The principle no.(c) as quoted above, is attracted in the setting of facts of the present case. Even if it is taken that there were two separate tenancies created by husband and wife in respect of one tenant then by virtue of provisions as referred to and discussed above, they could have lawfully joined in a suit to sue the same defendant and I see no jurisdictional error, therefore, in entertaining such a suit. 12. In the case of Iswar Bhai C. Patel v. Harihar Behera , (1999) 3 SCC 457 , interpreting the provision, Supreme Court held that these two provisions, namely, Order 1 Rule 3 and Order 2 Rule 3 if read together indicate that the question of joinder of parties also involves the joinder of causes of action. The simple principle is that a person is made a party in a suit because there is a cause of action against him and when causes of action are joined, the parties are also joined. Again in the case of B.R. Patil v. Tulsa Y. Sawkar & Ors. 2022 SCC OnLine SC 240 , the Court relied upon the above authority and held that Order II Rule 3 permits the plaintiff to join together different causes of action. No doubt it is a different matter that if there is a misjoinder of causes of action, the power of the court as also the right of the parties to object are to be dealt with in accordance with law which is well settled. 13. In so far as the argument advanced regarding notice being not valid, I find that power of attorney once was executed by husband in his behalf and on behalf of his wife with recitals therein that wife has already executed a power of attorney in his favour. There was no defence set up at all to question this power of attorney. Any subsequent rectification or supersession of power of attorney, in my considered view, is not going to help the defence either. The notice, therefore, by one power of attorney holder in respect of two plots if literally speaking creating two different tenancies, is liable to be held to be valid notice. 14. Any subsequent rectification or supersession of power of attorney, in my considered view, is not going to help the defence either. The notice, therefore, by one power of attorney holder in respect of two plots if literally speaking creating two different tenancies, is liable to be held to be valid notice. 14. The judgment relied upon by the learned counsel appearing for the respondent in the case of Jamiluddin (supra) deals with the aspect of the matter where two different tenancies were questioned by same landlord. The answer is given in affirmative that suit is maintainable. In my considered view, this is also apparent from the very provisions of Order II Rule 3 CPC. 15. Coming to the interpretation part of the will according to which, it has come to be discussed in the order that both husband and wife were shareholder in the share of 50% each in both the plots, I find it to be based upon the material and in absence of any defence, if the appreciation of document has taken place or otherwise appreciation of facts has taken place, or any statement made by the plaintiff party in absence of any cogent material on record to question that, in my considered view, the revision-applicant could not have assailed the findings on the ground of perversity. One additional fact is important to notice that upon death of husband, wife substituted him also as plaintiff. In a suit filed by one of the plaintiffs' side and the other plaintiff succeeded as a natural heir of the first plaintiff , right to sue, therefore, continued and the suit was rightly contested and got decreed. 16. In view of the above, I do not find any manifest error either on law or facts in the judgment and decree dated 02.02.2022. The judgment and decree passed by the Small Causes Court is, accordingly, affirmed. 17. Petition fails and hence dismissed.