Calcutta High Court (Appellete Side)
Md. Shahbaz Alam & Anr vs M.H. Bhiwarawalla & Ors on 27 July, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 2188 of 2011
Md. Shahbaz Alam & anr.
Versus
M.H. Bhiwarawalla & ors.
For the petitioners : Mr. Krishna Das Poddar, Advocate
For the opposite parties 1 and 2 : Mr. Indra Nath Mukherjee, Advocate
Mr. R.C. Paul, Advocate
Heard on : July 18 and 20, 2011
Judgment on : July 27, 2011
1. The opposite parties 1 & 2 (hereafter the landlords) had inducted as tenant
one Abdul Wahab (since deceased) (hereafter the tenant) in respect of a
room on the ground floor of premises no. 13, Bow Street, Kolkata at a
monthly rental of Rs.75/-, payable according to English calendar month. A
suit for eviction of the tenant and recovery of khas possession of the suit
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room followed at the instance of the landlords. It was registered as
Ejectment Suit No. 154 of 2000. The suit was contested by the tenant. In
course of trial, two witnesses testified in support of the defence case, -
DW-1 being the tenant himself and DW-2, one of the sons of the tenant,
Md. Shahnawaz, the proforma opposite party no. 3 (hereafter Shahnawaz).
In his examination-in-chief on affidavit, the tenant stated that he was
running business of raw papers from the suit room. Shahnawaz in his
examination-in-chief on affidavit stated that the tenant was "dealing in raw
paper business of selling and purchasing from the suit room and the said
business is only source of our livelihood and earning of bread of our family
members". He further stated that he and his father were running business
of raw papers from the suit room.
3. During the pendency of the suit, the tenant passed away intestate on 19th
August, 2006. The lawyer of the landlords on their behalf addressed a
notice dated 25th August, 2006 to Shahnawaz with the request to let him
know who the legal heirs of the tenant are within 7 days failing which it
shall be presumed that he is the only legal heir of the tenant. The notice of
the lawyer was despatched by speed post and duly served on Shahnawaz.
4. No response to the aforesaid notice, however, was received by the lawyer of
the landlords from the side of Shahnawaz. Steps were taken by the
landlords for effecting substitution by filing an application on 8th
September, 2006. In due course of time, Shahnawaz was substituted as
the defendant in the suit.
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5. The suit was decreed on 27th April, 2007. Shahnawaz did not prefer any
appeal and as such the decree attained finality.
6. The landlords thereafter put the decree into execution, giving rise to
Ejectment Execution Case No. 172 of 2007. The bailiff having failed to
deliver possession of the suit room to the landlords due to resistance
offered at site allegedly by one Manjoor Alam, an application under Order
21 Rule 97 of the Code of Civil Procedure was filed by them on 4th January,
2008, giving rise to Misc. Case No.1 of 2008.
7. Soon thereafter, the two petitioners filed an application under Order 21,
Rules 99 and 101 of the Code (hereafter the said application), giving rise to
Misc. Case No.35 of 2008. It was their case that they are the son and the
widow respectively of the tenant. With the death of the tenant on 19th
September 2006, the petitioners along with Shahnawaz and the proforma
opposite party no.4, Md. Imtiaz, being the other sons of the tenant
inherited the tenancy and jointly became the tenants in respect of the suit
room under the landlords. On 11th December, 2007, the Court bailiff had
come to the suit room and asked the petitioner no. 1 to vacate the same in
terms of the decree passed in the concerned suit. On the basis of the
grounds urged in the application, it was contended by the petitioners that
the decree in question is not binding on them. One of the grounds was that
the decree was a collusive one. Accordingly, it was prayed as follows:
In the aforesaid circumstances, your petitioner humbly prays for :-
a) Declaration that the petitioners herein are the monthly tenants in
respect of the suit room under the opposite party no. 1 & 2.
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b) For further declaration that the decree passed on 27/4/2007 in
Ejectment Suit No. 154/2000 against Suit No. 154/2000 against
the opposite party no. 3 is fraudulent, Collusive and not binding
upon or enforceable against the Petitioners and to pass further
order or orders as Your Honour may deem fit and proper.
8. The said application was opposed by the landlords by filling a written
objection. The material allegations were denied and disputed. In particular,
in paragraph 2 (H) of the said objection, the landlords asserted that the
petitioners have no individual right in respect of the suit room and that
they should prove that they are the legal heirs of the tenant. It was further
asserted that Shahnawaz, being one of the heirs of the tenant, had not
disclosed the names and particulars of other heirs of the tenant and,
therefore, the petitioners are estopped from contending to the contrary. The
allegation of collusion between the landlords on the one hand and
Shahnawaz on the other was specifically denied.
9. A reply affidavit was filed by the petitioners, sworn by the petitioner no.1.
While reiterating the contentions raised in the said application, the
petitioners referred to the incident of 11th December, 2007 and pleaded
that the Court bailiff had been to the suit shop room in terms of the order
of the executing Court when for the first time, the petitioners came to learn
about the decree passed in the suit.
10. The said application was considered by the executing Court. By order no.
29 dated 23rd March, 2010, the learned Judge rejected the same on
contest.
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11. The order dated 23rd March, 2010 was carried in appeal by the petitioners,
giving rise to Misc. Appeal No. 24 of 2010. On contested hearing, the lower
appellate Court by judgment and order dated 23rd May, 2011 dismissed the
appeal, thereby affirming the order impugned.
12. This revisional application under Article 227 of the Constitution is directed
against the said judgment and order dated 23rd May, 2011.
13. Mr. Poddar, learned advocate representing the petitioners contended that
the landlords obtained the decree for eviction in collusion with Shahnawaz,
being the substituted defendant and, therefore, the said decree is not
binding on them since they were not impleaded as additional defendants in
the suit. To highlight the point of collusion, it was submitted by him that
Shahnawaz despite suffering the decree of eviction did not prefer an appeal
thereagainst and allowed it to attain finality and this by itself is sufficient
indication of the landlords having won him over.
14. It was next contended by Mr. Poddar that the petitioners being the other
heirs of the tenant, the landlords were legally obliged to implead them in
the suit as substituted defendants but the landlords, with a view to obtain
a virtual walk-war, intentionally did not do so despite having full
knowledge of their relationship with the tenant. Referring to the decision of
the Apex Court reported in AIR 1990 SC 2053 : Textile Association (India),
Bombay Unit vs Bal Mohan Gopal Kurup and anr., and a Division Bench
decision of this Court reported in 2006 (1) CHN 513 : Jaharlal Saha and
ors. vs Pradip Saha and ors., it was submitted that the suit could not have
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been decreed without impleading the petitioners as substituted defendants
and he urged me to interfere on the authority of the said decisions.
15. Referring to the objection raised by the landlords that the petitioners were
not the other heirs of the tenant, Mr. Poddar produced the EPIC issued in
favour of the petitioner no. 1 by the Electoral Registration Officer, duly
authorized by the Election Commission of India to support the plea that he
is, in fact, the son of the tenant.
16. The decision in (1995) 1 SCC 164 : Kumar Jagdish Chandra Sinha and ors.
vs Eileen K. Patricia D' Rozarie (Mrs.) was relied on by Mr. Poddar in
support of his contention that the tenant being a contractual tenant, all his
heirs including the petitioners inherited the tenancy and the question as to
whether the petitioners were residing with the tenant at the time of his
death is redundant. Mr. Poddar further relied on the decision in (2009) 17
SCC 769 : Abdul Ajij Shaikh Jumma and another vs Dasharath Indas
Nhavi and ors. in support of his contention that there was no surrender of
tenancy and since the petitioners were residing in the suit room along with
the tenant at the time of his death, they were necessary parties to the suit
and the decree passed behind their back would not have the effect of
binding them. Reliance was also placed on the decision of the Supreme
Court reported in (2009) 17 SCC 334 : M.V. Karunakaran vs Krishan for
the proposition that being the obstructionists having some interest in the
suit room, the subordinate Courts erred in not granting them relief.
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17. He, accordingly, prayed for an order to set aside the impugned judgment
and order as well as the order passed by the executing Court and to grant
the prayers made in the said application.
18. The application was opposed by Mr. Mukherjee, learned advocate for the
landlords. According to him, the landlords had done all that was within
their disposal to ensure that all the heirs of the tenant are brought on
record of the suit by way of impleadment as substituted defendants and
that there being no response from Shahnawaz, they were left with no other
option but to implead only Shahnawaz as the substituted defendant. Every
effort having been made for ensuring that the estate and interest of the
tenant is fully represented, omission to implead the petitioners as
substituted defendants cannot be held to be fatal.
19. It was next contended by Mr. Mukherjee that the petitioners could not
prove before the executing Court that they were, in fact, the heirs of the
tenant. In the absence of such proof, according to him, the said application
was not maintainable in law and was thus rightly rejected.
20. Countering the decision in Textile Association (supra) and Jaharlal Saha
(supra), Mr. Mukherjee referred to the decision of the Supreme Court
reported in (2007) 3 SCC 123 : Shkuntala Vasant Pahadi and ors. vs
Purushottam Vasant Pethe and ors., and placed heavy reliance on
paragraph 5 thereof. According to him, the Apex Court accepted the
submission of learned counsel for the appellants to the effect that if an
original tenant dies leaving behind more than one heir, it is not necessary
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under law to implead all the heirs in a suit for eviction but the same can be
filed only against one of the heirs who could have represented the interest
of the deceased tenant. In the process, the earlier decision of the Supreme
Court reported in (1991) 3 SCC 114 : Surayya Begum (Mst) v. Mohd.
Usman was noticed and approved. It was contended that the decision in
Shkuntala Vasant Pahadi (supra) being one rendered by a Bench of three
learned Judges of the Apex Court and the latest on the point, the decision
in Textile Association (supra) and Jaharlal Saha (supra) are no longer good
law.
21. Next, Mr. Mukherjee referred to the oral testimony of the tenant and
Shahnawaz to project that the suit room was being used for business
purpose and that there is not an iota of evidence that the tenant or
Shahnawaz or the petitioners was/were residing thereat. Stress was also
laid on the averment in the reply affidavit where the petitioner no.1 referred
to the suit room as "suit shop" in paragraph 5 thereof. Drawing my
attention to the admitted fact that after the tenant's death it was
Shahnawaz who was tendering rent, and that there has been implied
surrender of tenancy by other heirs, if any, support was drawn from the
decision of the Apex Court reported in AIR 1994 SC 774 : Pushpa Rani and
ors. vs Bhagwanti Devi and ors.
22. Finally, it was Mr. Mukherjee's contention that the orders of the
subordinate Courts are based on proper appreciation of the evidence on
record and due application of mind and are also well reasoned for which
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interference in exercise of power under Article 227 of the Constitution is
not warranted. Accordingly, he prayed for dismissal of the revisional
application.
23. I have heard learned advocates for the parties and perused the materials
on record together with the decisions cited at the bar.
24. For rendering proper decision on the controversy involved in this
application, it would be relevant to read the definition of tenant in the West
Bengal Premises Tenancy Act, 1956 (hereafter the 1956 Act) since the suit
was filed at a time when the same was in force. Sec 2(h) defines a tenant
and reads as follows:
" 'Tenant' means any person by whom or on whose account or behalf,
the rent of any premises is, or but for a special contract would be
payable and includes any person continuing in possession after the
termination of his tenancy or in the event of such person's death, such
of his heirs as were ordinarily residing with him at the time of his
death, but shall not include any person against whom any decree or
order for eviction has been made by a court of competent jurisdiction."
25. There could be no dispute that after determination of the contractual
tenancy by issuance of the notice to quit, status of the tenant was that of a
statutory tenant. Even after the determination of the tenancy, the tenant
continued to have an estate or interest in the tenanted premises.
Considering the provisions of the Delhi Rent Control Act, 1958, a
Constitution Bench of the Supreme Court in its decision reported in AIR
1985 SC 796 : Gian Devi Anand vs Jeevan Kumar ruled that tenancy rights
both in respect of residential premises and commercial premises are
heritable and the heirs of the deceased tenant in the absence of any
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provision in the Act to the contrary would step into the position of the
deceased tenant and all the rights and obligations of the deceased tenant
including the protection afforded to the deceased tenant under the Act will
devolve on the heirs of the deceased tenant. It was further ruled that in the
absence of any provision regulating the right of inheritance, and the
manner and extent thereof and in the absence of any condition being
stipulated with regard to the devolution of tenancy rights on the heirs after
the death of such tenant, the devolution of tenancy rights must necessarily
be in accordance with the ordinary law of succession.
26. It follows from the above ruling that in the event the petitioners could prove
that they are the heirs of the tenant, they would step in the shoes of the
tenant and be entitled to enjoy all rights and protection that the 1956 Act
affords to a tenant facing eviction and hence, their impleadment in the suit
as substituted defendants was absolutely necessary. Let me now consider
whether on the materials before the executing Court, the petitioners could
be treated as heirs of the tenant or not.
27. Shahnawaz is admittedly a son of the tenant and being an heir of the
tenant was duly substituted in place of the tenant. However, since he did
not respond to the lawyer's notice that was served on him at the instance
of the landlords, none else was impleaded as substituted defendant apart
from him. One of the objections to the said application taken by the
landlords was that the petitioners are not the heirs of the tenant. As has
been noticed above, such objection is pleaded in paragraph 2(H) of the
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objection. The petitioners in their reply affidavit did not deal with such
objection. In his oral testimony the petitioner no.1 produced only an EPIC
to establish that he was one of the sons of the tenant. He was candid in
saying that he had no other evidence to prove his assertion. The petitioner
no.2, allegedly the widow of the tenant, did not also step in the witness box
to testify that she is indeed the widow of the tenant and that the petitioner
no.1 is the son born in her wedlock with the tenant. The EPIC that was
produced was issued in favour of one 'Shaibaz' and not in the name of the
petitioner no.1. It appears therefrom that his address is different from the
address of the suit property. He did not bring it to the notice of the
subordinate Courts or to my notice that any step for correcting his name or
address in the EPIC has been taken by him. This being the state of affairs
in respect of the point in issue as to whether the petitioners could at all
claim to be the heirs of the tenant, I have no hesitation to hold that they
had utterly failed in their attempt to prove their assertion that they are the
heirs of the tenant. On this ground alone, the claim of the petitioners is
liable to fail.
28. However, I do not wish to rest my decision only on the above ground.
Assuming for the sake of argument that the petitioners are the heirs of the
tenant, I am of the further considered view that there are other weighty
grounds which disentitle the petitioners to any relief.
29. It appears from the cross-examination of the petitioner no.1 that after the
death of the tenant, particulars of his heirs and successors had not been
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informed to the landlords in writing. The petitioner no.1 also testified that
after the death of his father, "Shahnawaz used to deposit rent in the office
of the Rent Controller at Calcutta". He also admitted it as "a fact that the
tenancy and business in the suit tenancy was looked after by Md.
Shahnawaz". It also surfaced from his evidence that "Md. Azam, Md. Amin,
Md. Rafique, Md. Zaved, Md. Danish are residing at the case premises". He
then added that "I am also residing at the case premises", but did not file
any document to show that he was residing thereat. The petitioner no.2,
being the mother of the petitioner no.1, did not come forward to depose
and support the claim of the petitioner no.1. Similar is the case with Md.
Imtiaz, being the other son who is proforma opposite party no.4. All these,
taken cumulatively, would lead to the inference of an implied surrender by
the petitioners and the proforma opposite party no.4 of their rights of
tenancy. The ratio of the decision in Pushpa Rani (supra) is squarely
applicable here and there being a surrender of the tenancy rights at the
instance of the petitioners, there can be no two opinions that the said
application was filed as an afterthought to thwart the decree.
30. That apart, the evidence on record do seem to suggest that the landlords
did whatever it was incumbent in law on them to do to ensure that the
estate and interest of the tenant is duly represented and that they did not
intend to steal a march over the heirs of the tenant without impleading
them in the suit.
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31. As has been noticed above, Shahnawaz was called upon to furnish
particulars of the other heirs of the tenant to which he did not respond and
further that the petitioner no.1 admitted in his evidence that on their own,
they did not inform the landlords that they are the other heirs of the
tenant. It does not also appear from the records that steps in terms of
Order XXVI Rule 10 of the Code were taken. In such a scenario, it would be
unfair to hold the landlords to be at fault and not to allow them to reap the
fruits of the decree passed by the trial Court.
32. In view of the above discussion, the petitioners' allegation that Shahnawaz
had colluded with the landlords and that there was absence of proper
representation arising out of mala fide conduct of Shahnawaz is considered
immaterial and irrelevant and unworthy of further consideration.
33. Before I conclude, a word or two about the decisions that were cited before
me ought to be said.
34. The ratio of the decisions in Textile Association (supra) and Jaharlal Saha
(supra) no doubt support the view that at any time before hearing is
concluded in an eviction suit, in the event of death of the tenant defendant,
all his heirs ought to be impleaded and any decree passed behind the back
of any of such heirs would not be binding on him. It is equally well-settled
that it is the rule deducible from the application of law to the facts and
circumstances of a case which constitutes its ratio decidendi and not some
conclusion based upon facts which may appear to be similar, for, one
additional or different fact can make a world of difference between
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conclusions in two cases even when the same principles are applied in
each case to similar facts (see AIR 1976 SC 1766 : The Regional Manager &
anr. vs Pawan Kumar Dubey). Bearing in mind the above salutary
principle, I have not been able to persuade myself to accept the contention
advanced by Mr. Poddar on the basis of the ratio in Textile Association
(supra) and Jawaharlal Saha (supra).
35. In so far as the decision in Textile Association (supra) is concerned, one
sentence of paragraph 4 thereof is crucial. It reads "(t)here is a finding in
this case that the respondent was as much a tenant as the mother and the
other brother". Considering such position, the ex-parte decree for eviction obtained against the respondent's mother and brother without impleading him was set aside. Having regard to the finding arrived at in the present case that there has been an implied surrender of tenancy rights by the petitioners, I am of the view that the decision in Textile Association (supra) must be held to be confined to the facts before the Court.
36. The decision in Jaharlal Saha (supra) followed the decision in Textile Association (supra) although a contrary view was expressed in the subsequent decision of the Supreme Court reported in (1991) 3 SCC 114 :
Surayya Begum vs. Md. Usman & ors. In Surayya Begum (supra), Their Lordships had the occasion to consider the decision in Textile Association (supra), which was heavily relied on by the appellants. Even then, the Division Bench of this Court preferred the law laid down in the decision in Textile Association (supra) to the law laid down in the decision in Surayya 15 Begum (supra) on the ground that the former decision was rendered by a bench of three learned Judges whereas the latter was rendered by a bench of two learned Judges. I need not enter into the controversy as to whether in such a situation the decision in Textile Association (supra) could be preferred or not. However, it is to be noted that the latest decision on the point in Shkuntala Vasant Pahadi (supra), rendered by a bench of three learned Judges, took the view that the case before it is fully covered by the decision in Surayya Begum (supra). The conflict of view does not seem to end.
37. I am inclined to the view on consideration of all the decisions on the point that there is no rule of thumb that whenever an heir of a deceased tenant/defendant is left out and a decree is passed behind his back, the decree cannot be enforced against him. It depends on several factors and the question of enforceability of the decree has to be decided on the facts of each case. If upon appreciating the evidence recorded and on consideration of the facts and circumstances in its totality the conduct of the landlord/plaintiff is found to be such that an intention of stealing a march over an heir, not duly represented, is evinced, the decree would be suspect entitling the Court to interfere. I can conceive of two other possible situations, which would call for the Court's examination. A recent trend is discernible amongst tenants, i.e. they have been vacating possession of the portions under tenancy upon acceptance of handsome sums from their respective landlords, which in cases is more than the amount of rent paid 16 over the years since inception of the tenancy. It might so happen that one of the heirs of the deceased tenant without disclosing the names of the other heirs projects himself as the sole heir and allows the landlord to obtain a decree for eviction on a pseudo contest in lieu of valuable consideration. In such eventuality, if the Court is approached by the others heirs and it is satisfied that other heirs have been left out mala fide, it would be justified in its interference and to grant relief on the authority of the dceisions in Textile Association (supra) and Jaharlal Saha (supra). There could also be a case where all the heirs of the deceased tenant, with a mala fide motive and to procrastinate proceedings and continuous stay at the tenanted premises for years together, may divulge only names of some of the heirs so that after substitution is effected by impleading such of the heirs whose names have been divulged and a decree is obtained behind the back of the others and is ultimately put into execution, such others might question the legality and validity of the decree. If in such a case the ratio decidendi of the decisions in Textile Association (supra) and Jaharlal Saha (supra) are applied, justice would be the first casualty. Therefore, it is for the concerned Court to guard against unscrupulous litigants and to activate itself to secure justice by ensuring that the estate and interest of the deceased tenant is duly represented. The situations discussed above are only illustrative and not meant to be exhaustive.
38. Interestingly, one of the grounds on which the Division Bench in Jaharlal Saha (supra) dismissed the second appeal was that despite a specific plea 17 taken in the written statement that the suit was not maintainable in the absence of necessary party and that the appellant had admitted that two of the heirs of the original tenant had been left out, no steps to implead the heirs left out were taken. It is in those circumstances that the Division Bench ruled that the estate and interest of the original tenant had not been properly represented. That is not the case here in view of the finding as above and, therefore, I do feel inclined to hold that the decision in Jaharlal Saha (supra) is also distinguishble.
39. The decision in Abdul Ajij Shaikh Jumma (supra) does not lay down any principle of law that could bind this Court as a precedent. From the short judgment, it appears that there was a specific procedure for surrender of tenancy in terms of the Bombay Tenancy & Agricultural Lands Act, 1948 and an order in respect thereof was required to be passed by a competent authority under that Act evidencing the surrender in accordance with the provisions thereof. However, there was no such order and therefore the contention that there was a surrender of tenancy by the father of the respondents (who was the tenant) was not accepted and it was held that the Tribunal was right in finding that he had been dispossessed not in accordance with law. The materiality of the decision to the facts of the present case has not been established and is, therefore, of no assistance.
40. The decision in M.V. Karunakaran (supra) is also distinguishable. It was held therein that once the title in respect of the property in question is found to be existing in the obstructionist, the application for removal of 18 obstruction as envisaged under Order XXI Rule 97 of the Code had been rightly determined. Rights of auction purchasers and rights of obstructionists not party to the suit were discussed. The point in issue, as it appears from the decision, is absolutely different from the one dealt with hereinabove.
41. I, therefore, find no merit in the revisional application and accordingly, it stands dismissed. However, the parties shall bear their own costs. Urgent photostat certified copy of this judgment and order shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)