Rajasthan High Court - Jaipur
Sajjan Kumar Agrawal And Ors vs Rent Contral Appellate Tribu Ors on 22 February, 2011
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No. 14833/2010 Sajjan Kumar Agrawal & ors Vs Rent Control Appellate Tribunal, Jaipur & ors 22.2.2011 HON'BLE MR JUSTICE MN BHANDARI Mr MM Ranjan, Sr Adv with Mr Rahul Agrawal for petitioners Mr RK Agarwal, Sr Adv with Mr Alok Chaturvedi for respondents BY THE COURT:
It is a case where suit for eviction was decreed against Mahendra Kumar Agrawal respondent No.4 His appeal was also dismissed by the Appellate Rent Tribunal (for short 'appellate tribunal'). While the matter was taken up for execution, petitioners herein, raised objections regarding execution. It was precisely on the ground that rented premises was given to late Chaturbhuj Agrawal/Choudhary (father of petitioners and respondent No.4-Mahendra Kumar Agrawal) under rent note at Annexure-1. Rent note specifies that Chaturbhuj Agrawal would be called as tenant and shall include his executors and successors. Since petitioners are successors of late Chaturbhuj, they continued the business in the premises in dispute. An application for eviction was filed against respondent No.4-Mahendra Kumar Agrawal only. Looking to the aforesaid, a decree of eviction cannot be given effect to against petitioners. Objections, so raised by petitioners was rejected by the Rent Tribunal. Petitioners herein preferred an appeal before the appellate tribunal, however, same was also dismissed.
Learned counsel for petitioners submits that pursuant to the provisions of Order XXI Rule 97 of the Code of Civil Procedure (CPC), the court below was under an obligation to cause enquiry into the matter. However, in this case, no enquiry was effected before deciding the application. This was further in violation of Rules 101, 103 and 104 of Order XXI of the CPC. Petitioners were not given chance to lead evidence to show that after the original tenant late Chaturbhuj Agrawal, petitioners being successors, carried on the business. Accordingly, order of eviction passed against Mahendra Kumar Agrawal cannot be effected against them. This is more so when petitioners were not having cordial relations with Mahendra Kumar Agrawal at the later stage thus he did not inform about pendency of the suit for eviction and matter was not properly contested by him. Looking to all these reasons, objections, so raised by petitioners by moving an application under Order XXI Rule 97 of the CPC should have been allowed. Application for eviction can be decreed after hearing the petitioners herein. Learned Rent Tribunal committed illegality while ignoring various facts relevant to the case which were enough to show working of petitioners in the firm and, that too, from the rented premises in dispute. The Rent Tribunal, without causing an enquiry and granting an opportunity to lead evidence, recorded its finding holding that no case is made out. The Appellate Tribunal though taking note of various facts including the fact that petitioners are found to be involved in the business of late Chaturbhuj Agrawal /Choudhary, yet maintained the order passed by the Rent Tribunal holding that decree passed against joint tenant is and can be effected against others. Aforesaid finding by the Appellate Tribunal is not legally tenable in view of the judgment of the Apex Court in the case of Textile Association (India) Bombay Unit Vs Balmohan Gopal Kurup & anr reported as (1990) 4 SCC 700. Therein, similar situation came up for consideration before the Apex Court. It was held that ex parte decree of eviction obtained against one tenant cannot be given effect to against other tenants. The case in hand is having similar facts. This is more so when even as per the definition of 'tenant' given in the Rajasthan Rent Control Act, 2001 (for short 'the Act of 2001'), on death of erstwhile tenant, successor becomes the tenant. Since the petitioners are successors of erstwhile tenant late Chaturbhuj Agrawal, they fall under the definition of 'tenant' as defined in the Act of 2001. Without making them party to the application for eviction, if decree has been passed, it cannot be given effect to against them.
Petitioners even submitted documents which include electricity bills, telephone bills and other documents showing payment of amount on behalf of the firm by petitioners. However, all these documents were casually ignored by both the Tribunals below. In the light of submissions made aforesaid, it is prayed that impugned orders may be quashed and set aside.
Per contra, learned counsel for respondents submits that it is a case of concurrent finding of facts thus jurisdiction of the court under Articles 226 and 227 of the Constitution of India is quite limited. This court should re-appreciate and re-apprise findings recorded by the Tribunals below.
Reference of the judgment of Apex Court in the case of Ranjeet Singh vs Ravi Prakash reported as (2004) 3 SCC 682 and Jai Singh & ors Vs Municipal Corporation of Delhi & anr reported as (2010) 9 SCC 385.
Coming to the merits, it is submitted that the Tribunal is not bound by the provisions of the CPC. Reference of section 21 of the Act of 2001 has been given to show as to what extent provisions of CPC are made applicable. The objection regarding execution can be looked into by the Tribunal but not in the manner it is provided under the CPC. While adjudicating the matters, court should follow principles of natural justice and, in the present matter, Rent Tribunal as well as Appellate Rent Tribunal have guided themselves with the aforesaid. For deciding objections in execution, it is not necessary to cause enquiry as mandated under CPC. If the provisions of Order XXI rule 97 of the CPC are applied then it would amount to re-writing of the statutory provisions. Such jurisdiction does not exists with the court. Looking to the aforesaid, argument raised by learned counsel for petitioners regarding non-compliance of provisions of Order XXI Rules 97, 101, 103 and 104 of the CPC is of no consequence.
So far as the fact pertaining to working of the petitioners in the firm after death of late Chaturbhuj Agrawal is concerned, the Rent Tribunal meticulously considered the matter. After perusing the documents produced by the parties, finding of fact has been recorded giving out that petitioners could not support their contentions. This is more so when in another suit maintained by Mahendra Kumar Agrawal, shown himself to be only person looking after the business. Looking to his admission, there were nothing for the Tribunal to further enquire, yet the Tribunal has looked into all the documents produced by petitioners. It is, otherwise, a glaring case where petitioners are none else but real brothers and mother of Mahendra Kumar Agrawal-respondent No.4 and they are residing in the same premises which is clear from perusal of cause title of the case wherein address of petitioners and respondent No.4-Mahendra Kumar Agrawal is same. Litigation between plaintiff-respondent No.3 and Mahendra Kumar Agrawal remained pending for quite some years and, if, at all, petitioners were carrying out the business of Chaturbhuj, it becomes unusual not to get information of eviction suit form brother. This is more so when even alleged differences between family members is not pleaded from the date of filing of suit for eviction. The fact of differences between family members also incorrect as respondent No.4 is still carrying on business.
In any case, Appellate Tribunal has further taken note of the fact that even as per rent note at Annexure -1 after death of Chaturbhuj, successor becomes tenant. In that case, eviction order passed against one is binding against others also. This is without prejudice to the finding recorded by the Rent Tribunal and affirmed by the Appellate Tribunal.
Coming to the definition as provided under the Act of 2001, it is submitted that petitioners are not included in the definition of 'tenant' being successor, rather, being successor, they should ordinarily carrying out business in the premises as member of family upto the death of erstwhile tenant. Looking to the aforesaid, petitioners do not fall within the definition of tenant as they were not carrying on business.
I have considered rival submissions made by learned counsel for parties and scanned the matter carefully besides going through the judgments cited at the Bar.
Before considering the arguments raised by respective counsel for parties, it is necessary to look into the jurisdiction of this court to interfere in the orders having concurrent finding of fact. It is a case where both the Tribunals below have decided the matter against petitioners after recording finding of fact. In such circumstances, this court is having very limited jurisdiction to cause interference in such matters. Reference of the judgment in the case of Ranjeet Singh (supra) is relevant. Therein, it was held that the court, while exercising jurisdiction vested in it under Articles 226 and 227 of the Constitution of India should not re-evaluate and re-appreciate evidence as if it is exercising appellate jurisdiction. Same view has been taken in the case of Jai Singh & ors (supra). Therein also, exercise of jurisdiction under Article 227 of the Constitution of India is allowed only when there are flagrant abuse of fundamental principles of law or justice. It is also permissible where there is patent error and does not require lengthy and complicated arguments. In the case of Sadhana Lodh Vs National Insurance Company Limited & anr [2003 (3) SCC 524] same view has been taken. Paras 7 and 8 of the aforesaid judgment is quoted thus -
7. The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.
8.For the aforesaid reasons, we are of the view that since the insurer has a remedy by filing an appeal before the High Court, the High Court ought not to have entertained the petition under Article 226/227 of the Constitution and for that reason, the judgment and order under challenge deserves to be set aside. We, accordingly, set aside the judgment and order under appeal. The appeal is allowed. There shall be no order as to costs. However, it would be open to the insurer to file an appeal if it is permissible under the law.
Looking to the reference of the judgment aforesaid, it comes out that this court, while exercising jurisdiction under Article 226/227 of the Constitution of India, has very limited jurisdiction to interfere in finding of fact. Keeping aforesaid in mind, I have considered submissions raised by learned counsel for parties.
Perusal of Annexure-1- rent note, no doubt, shows that the tenancy was created in favour of late Chaturbhuj Agrawal and to include his successors as well. Petitioners are the successors of Chaturbhuj Agrawal along with Mahendra Kumar.
A question now comes as to whether successor becomes tenant automatically pursuant to definition of 'tenant' under the Act of 2001. For ready reference, definition of 'tenant' is quoted thus -
(i) "tenant" means-
(i) the person by whom or on whose account or behalf rent is, or but for a contract express or implied, would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by an order or decree for eviction passed under the provisions of this Act; and
(ii) in the event of death of the person referred to in sub-clause (i),-
(a) in case of premises let out for residential purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily residing with him in such premises as member of his family upto his death;
(b) in case of premises let out for commercial or business purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily carrying on business with him in such premises as member of his family upto his death.
Perusal of the aforesaid shows that if premises has been let out for commercial or business purposes, on the death of tenant, surviving spouse, son, daughter, mother and father who had been ordinarily carrying out business with him in the premises rented out as member of his family, upto his death can be considered to be tenant.
Learned counsel for petitioners has demonstrated that enough material was produced to show that at the time of death they were carrying out the business along with late Chaturbhuj Agrawal. The original tenant late Chaturbhuj Agrawal died in the year 1996, however, suit for eviction was filed in the year 2003 i.e. after a period of 7 years. The question come as to whether sub clause (b) of clause (i) of definition of tenant would remain applicable in those circumstances. If suit is filed immediately on death or before it, aforesaid clause can be applied but same determination may not remain, if the suit is filed at later stage because any change can take place in the intervening period thus definition of 'tenant' is required to be looked into completely. Perusal of sub clause (i) of definition of 'tenant' shows that a tenant would be person by whom or on whose account or behalf rent is, or but for a contract express or implied payable. Taking note of the aforesaid, it is relevant to see events up to the year 2003 from the date of death of late Chaturbhuj in the year 1996. Perusal of documents on record are not sufficient to demonstrate petitioners' participation in the business after the death. Largely, documents placed before me are of the period prior to death of Chaturbhuj Agrawal. Few documents are of the subsequent period but not sufficient to establish continuance of business by the petitioners. In the aforesaid background, section 2 (i) of the definition of 'tenant' has to be applied.
Since all the relevant documents have been looked into and finding of fact have been recorded by the Tribunal, I do not find any glaring mistake in the orders of the Tribunals calling for interference by this court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India. The material produced by the petitioner could show them to be working in the suit premises.
Now, the question remains as to what is the effect of the rent note. It extends to the successor of erstwhile tenant Chaturbhuj Agrawal. In view of the rent note, petitioners' claim remains as successor. At the first instance, it would be relevant to mention here that Chaturbhuj Agrawal died in the year 1996 whereas application for eviction was made in the year 2003 i.e., after seven years of his death. In between seven years, if rent became payable on behalf of one under a contract expressed or implied, then he becomes landlord. Accordingly, intervening period can change the position then existing under the earlier rent note. It is, however, presumed that the petitioners being successors of Chaturbhuj Agrawal are to be considered as co-tenants, then whether non-impleadment as a party respondents has any effect. It is not in dispute that the petitioners are residing in the same premises in which Mahendra Kumar Agrawal resides and against whom decree of eviction has been passed. In the aforesaid background and in the light of the lease deed, judgment of the Hon'ble Apex Court in the case of HC Pandey Vs GC Paul reported in (1989) 3 SCC 77 has to be considered first. In the aforesaid judgment, it was held that on the death of original tenant, if nothing contrary provided, tenancy right devolve on the heirs and if it is a case of single tenancy without division of the premises or rent payable thereon, heirs succeed to be joint tenant. Para 4 of the aforesaid judgment, it is quoted thus:-
It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under s. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed.
Perusal of the para aforesaid shows that issue therein was decided in reference to the notice under section 106 of the Transfer of Property Act. However, the para quoted aforesaid shows that in case of single tenancy, it becomes a case of joint tenancy of the successor. If the judgment in the case of Kanji Manji Vs The Trustees of the Port of Bombay reported in (1962) 3 Supp. SCR 461 is looked into, the issue raised herein has been decided completely. Therein, without impleading joint tenant, suit for eviction was filed and was held to be binding on the joint tenant.
Paras 6 & 7 of the aforesaid judgment are quoted thus:-
6.All these pleas were found against the appellant. It was held that the tenancy was a joint tenancy that a notice to one of the joint tenants was sufficient, and that the suit,also was not bad for non-joinder of the legal representatives of Rupji Jeraj. The trial Judger held that the present agreement was enforceable, inasmuch as this case was governed by sub-s. the(1) and not sub- s. 4 (a) of s. 4 of the Act. For same reason, the trial Judge also held that the suit was properly laid in the Bombay City Civil Court at Bombay, The same contentions were raised before us, and we shall deal with them in the same order.
7.The argument about notice need not detain us long. By the deed of assignment dated February 28, 1947, the tenants took the premises as joint tenants. The exact words of-the assignment were that........ the Assignors do and each of them both hereby assign and assure with the Assignees as Joint Tenants......... The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The trial Judge therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good. Mr. B. Sen, in arguing the 'case of the appellant, did not seek to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has no merit.
(emphasis supplied) Perusal of para 7 quoted above shows that in case of joint tenancy, not only notice to one tenant was sufficient but suit for the same reason was held to be good. As against the judgment, learned counsel for petitioners referred the judgment in the case of Textile Association (supra). Paras 3 & 4 of the aforesaid judgment are quoted thus:-
3. On August 13, 1979 respondent 1 filed a suit out of which the present appeal arises. He claimed that he was one of the tenants living in the premises at the time of death of his father Gopal Kurup and the ex parte decree obtained by the landlord was, therefore, not binding upon him. The Trial Court found that he was also one of the tenants who lived along with the father and declared that the ex parte decree for eviction was not binding on him. The appeal against the said decree was dismissed and so too the Writ Petition by the High Court.
4. Mr. Lalit, counsel for the appellants argued that the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decisions of this Court in Kanji Manji v. The Trustees of the port of Bombay (1962) 3 Supp. SCR 461 and H. C. Pandey v. G. C. Paul . Both the cases relate to the validity of the notice issued to one of the joint tenants. It was held that the notice issued to one of them would be valid. We do not think that the principle stated in those cases on the facts obtained are relevant to the present case. There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside. It is not sufficient as the Courts below have said that the decree was not binding upon the respondent. That decree cannot be kept alive against two other tenants and possession of the premises could be exclusively given to the respondent. The respondent cannot be put into exclusive possession of the premises since his mother and brother are also equally entitled to. It seems to us, therefore, the ex parte decree for eviction should be set aside and the petitioner should be impleaded as a party to that suit and it should proceed on merits.
Perusal of the paras referred aforesaid shows that judgment in the case of Kanji Manji (supra) and S.C. Pandey (supra) was not applied taking those cases only regarding effect of the service of the notice to a joint tenant. It seems that para 7 of Kanji Manji's judgment was not brought to the notice of the Hon'ble Apex Court. Because in that case not only service of notice to joint tenant, but even suit was held to be good and accordingly binding on the joint tenant in his absence as a party respondent. In the aforesaid background, judgment in the case of Kanji Manji (supra) cannot be ignored.
Looking to the aforesaid legal position and as has been taken into consideration by the court below, even if the petitioner is treated as joint tenant being successor for the sake of argument, then also he is bound by the eviction decree passed against other joint tenant. It is not disputed by learned counsel for petitioners that all the family members whether petitioner or Mahendra Kumar are leaving in one house though in the application moved by the petitioners, it was stated that they are not having good relation now with Mahendra Kumar. The facts aforesaid remained un-proved. Thus, in the light of the aforesaid discussion, no case is made out for causing interference of this Court. The writ petition is, accordingly, dismissed.
At this stage, learned counsel for petitioners prays two months' time to vacate the premises in dispute. The prayer aforesaid is granted.
(MN Bhandari) J.
bnsharma