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[Cites 10, Cited by 0]

Himachal Pradesh High Court

Gurbachan Kaur vs Brahmin Sabha on 29 August, 2019

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

                                                               1

     s IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                  Civil Revision No.:                        235 of 2015




                                                                                            .

                                                  Reserved on:                                31.07.2019

                              Decided on:                  29.08.2019
______________________________________________________________________





Gurbachan Kaur                                        ......Petitioner.

                                                         Vs.





Brahmin Sabha, Shimla and another                                                       .....Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge

Whether approved for reporting?1 No.

For the petitioner:                               Mr. G.C. Gupta, Senior Advocate, with
                                                  Ms. Meera Devi, Advocate.
For the respondents:                              Mr. R.K. Sharma, Senior Advocate, with
                                                  Mr.   Arun    Kumar,   Advocate,   for


                                                  respondent No. 1.

                                                  Respondent No. 2 is ex parte.




Ajay Mohan Goel, Judge (Oral):

By way of this petition, the petitioner has challenged order, dated 01.12.2015, passed by the Court of learned Appellate Authority­II, Shimla in Case No. 38­S/13(b) of 2013, titled as M/s Beant Singh & Sons Vs. Brahamin Sabha, Shimla, vide which, an application filed by the petitioner under Order I, Rule 10 of the Code of Civil Procedure for being impleaded as a party in the case, stands rejected.

2. Brief facts necessary for the adjudication of present petition are that the petitioner herein filed an application under Order I, 1Whether the reporters of the local papers may be allowed to see the Judgment?

::: Downloaded on - 29/09/2019 02:51:30 :::HCHP 2

Rule 10 of the Code of Civil Procedure before the learned Appellate Authority­II, Shimla in Rent Appeal No. 38­S/13(b) of 2013, on the .

ground that tenants in the premises in issue initially were M/s Beant Singh in partnership concerned. The father of the applicant was one of the partner and tenant in the premises. Sh. Beant Singh expired in the year, 2002 and tenancy rights in the premises were inherited by the applicant being legal heir of Beant Singh. Applicant was married to Shri Jeewan Kukreja and was residing in Mangir and thereafter in Sangam Vihar in Delhi. Her husband expired in the year, 2009. She came to Shimla permanently in September, 2014, as she had no source of survival in Delhi. After coming to Shimla, she came to know that the non­ applicant had filed a petition for eviction of the brother of the applicant Sh. Jaspal Kukreja from Shop No. 83. Since the applicant was one of the tenants in the disputed premises, therefore, her presence was required in the proceedings, so that she may not be condemned unheard. It was further mentioned in the application that brother of applicant had intentionally not disclosed the factum of her tenancy rights in the demised premises with a view to cause prejudice and harm to her. As per the applicant, as soon as she came to know about the pendency of the proceedings, she filed an application for her impleadment as one of the party in the case.

3. Non­applicant/landlord filed reply to the said application objecting the same. It was mentioned in the reply that except ::: Downloaded on - 29/09/2019 02:51:30 :::HCHP 3 Sh. Jaspal Kukreja, who was the sole proprietor of M/s Beant Singh & sons and who was tenant in the demised premises, none else had any .

right over the same and Gurbachan Kaur, i.e., the applicant had nothing to do with the tenanted premises. According to the non­applicant, Jaspal Kukreja was the proprietor and tenant in possession of the said premises for all intents and purposes. After the death of late Shri Beant Singh, Jaspal Kukreja, being the proprietor, was in possession of the premises and therefore, eviction petition was also filed only against him. Applicant Gurbachan Kaur never remained as tenant under the non­applicant and the application was otherwise also not maintainable, as the same was filed at a belated stage after a span of more than nine years. It was further mentioned in the reply that the Court of learned Rent Controller had also decided the issue of legal heirs against Sh. Jaspal Kukreja and even otherwise, in law, it was clear that all legal hears need not be arrayed as party in eviction proceedings. On these grounds, the application was resisted.

4. By way of rejoinder, the applicant reiterated the averments made in the application. It was further submitted that as the premises were commercial in nature, tenancy had to devolve in accordance with the provisions of law and further it was duty of the landlord to have had impleaded all the tenants including the applicant as party respondents in the Rent Petition.

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5. Vide impugned order, learned Appellate Authority has rejected the application. It held that the applicant was a married lady, .

who was residing out of Shimla and there was a vague case pleaded in the application that in the month of September, 2014, she came to Shimla permanently. It further held that there was nothing on record to demonstrate that applicant was one of the proprietors of M/s Beant Singh and sons, i.e., the original tenant and she actually remained in possession of the suit premises, being legal heir up till the death of Shri Beant Singh. It further held that at the time of death of Beant Singh, applicant was residing out of Shimla being a married lady with her husband as per own pleaded case. There was nothing on record to demonstrate that brother of the applicant initially had not disclosed the factum of her tenancy rights in the suit premises with a view to cause prejudice and harm to her. Reply filed to the Rent Petition as well as evidence led before the Rent Controller demonstrated that the appellant, i.e., brother of the applicant, had protected the interest and rights being a tenant, which could not be termed as having caused any harm to the rights of the applicant. Relying upon the judgment of the Hon'ble Supreme Court of India in 1995(1) RCR 217, learned Appellate Authority held that tenancy devolved upon the heirs of deceased tenant jointly and legal heirs do not become tenants under or independent tenant in their own rights. It further held that no circumstance was brought to the notice of the Court that applicant being one of the proprietor of M/s ::: Downloaded on - 29/09/2019 02:51:30 :::HCHP 5 Beant Singh and sons was in actual possession or remained in possession of the suit premises at any time. On these bases, learned .

Appellate Authority rejected the application.

6. Feeling aggrieved, the applicant has filed the present Review Petition.

7. I have heard learned counsel for the parties and have also gone through the impugned order as well as record of the case.

8. The eviction petition was filed by the landlord against M/s Beant Singh & sons through its proprietor Sh. Jaspal Kukreja in January, 2006. The same was decided by the Court of learned Rent Controller on 28.03.2013. A perusal of the reply filed by the tenant before the learned Rent Controller demonstrates that it was mentioned therein that the petition was bad for non­joinder of necessary parties, as respondent was a partnership firm and other partners of the firm had not been joined as respondents. It was further mentioned in para­3 of the preliminary objections that after the death of Shri Beant Singh, the premises, which were commercial in nature, were inherited by all his heirs.

9. On the basis of pleadings of the parties, learned Rent Controller framed the following issue as Issue No. 6:

"6. Whether the present application is bad for non­joinder of necessary parties, i.e., legal heirs of Lt. Shri Beant Singh? OPR ::: Downloaded on - 29/09/2019 02:51:30 :::HCHP 6 This issue was answered against the respondent/tenant by the learned Rent Controller, inter alia, by holding that interest of the remaining .
alleged heirs was taken care of by the tenant, as partners as well as legal heirs, who had inherited the property from the same predecessor­in­ interest, stand in the capacity of tenants­in­common qua each other and it was settled law that if the respondent was one of the heirs of a previously deceased tenant and they have together inherited the tenancy, they are in fact tenants­in­common and accordingly, notice to one of the heirs is sufficient as a notice to all.

10. Now, in this background, when one peruses the averments which were made in the application filed under Order I, Rule 10 of the Code of Civil Procedure by the petitioner before the learned Appellate Authority, one finds that the reasons as to why the petitioner wanted to be impleaded as a party in the proceedings were that she was not able to protect her interest in the lis, because according to her, her brother had intentionally not disclosed the factum of her tenancy rights in the demised premises with a view to cause prejudice and harm to her.

11. As I have already mentioned above, the Rent Petition was filed by the landlord in the year 2006, which stood decided by the learned Rent Controller in favour of the landlord in the year 2013. The application for being impleaded as a party was filed by the petitioner before the learned Appellate Authority in the year 2014. Reasons mentioned in the application as to why the applicant earlier did not file ::: Downloaded on - 29/09/2019 02:51:30 :::HCHP 7 an application for her being impleaded as party in the lis do not inspire any confidence. The fact that the petitioner was residing out side Shimla .

and purportedly she came to Shimla only in the year, 2014, does not confer upon her any right to file a belated application to be impleaded as party in a lis. As has been rightly held by the learned Court below while dismissing her application, it is duly borne out from the record of the case that there has been no concealment by the impleaded tenant before the learned Courts below of any fact to the prejudice of the present petitioner. On the contrary, the tenant/respondent took a specific objection with regard to the maintainability of the petition, inter alia, on the ground that all legal heirs of deceased Beant Singh were not impleaded as respondents and this plea of the respondent stands negated by the learned Rent Controller on reasons which I have already mentioned in above part of the judgment and this issue shall again be looked into by the learned Appellate Authority while deciding the appeal on merit. Even otherwise, it is settled law that heirs of original tenant succeeded to his tenancy on his death as joint tenants and the tenancy cannot be split as it devolves upon the heirs. Service of notice of proceedings to one of the tenants is sufficient notice to all and this position of law was reiterated by this Court in Civil Revision No. 62 of 2019, titled as Shri Rajesh Kumar Vs. Shri Raj Kumar Mehra and others, decided on 19th August, 2019 by following the judgment of Hon'ble Co­ordinate Bench of this Court in Asha Vs. Raj Kumar Mehra ::: Downloaded on - 29/09/2019 02:51:30 :::HCHP 8 and others, (2018) 1 SLC 186, in which, Hon'ble Co­ordinate Bench has held as under:

.
"24. That apart, the impleadment of the petitioner is not at all necessary because eventually if the eviction petition is found to be bad for want of non­joinder of necessary parties, the landlord would obviously bear the consequences.
25. At this stage, learned senior counsel for the respondents/landlords has sought a direction to the learned Rent Controller to decide the eviction petition expeditiously by relying upon a recent judgment of the Hon'ble Supreme Court in Hameed Kunju v. Nazim, 2017 8 SCC 611, wherein it has been categorically held that the object of the Rent laws is to ensure speedy disposal of eviction cases between the landlord and tenant and especially those cases where the landlord seek eviction for his bona fide need.
26. Obviously, there can be no quarrel with the aforesaid submission, but taking into consideration the fact that another petition inter se the same landlords and different tenants is already pending adjudication before a coordinate bench of this court, where the trial in the eviction petition has actually been ordered to be stayed, therefore, this Court is not in a position to accede to the request of the learned senior counsel.
27. For the forgoing discussion, I find no merit in this petition and rather find the ::: Downloaded on - 29/09/2019 02:51:30 :::HCHP 9 application under Order 1 Rule 10 CPC filed by the petitioner to have been filed with mala fide intention simply in order to delay the outcome of .
eviction proceeding that has been initiated by the respondent No.1 against the proforma respondent and consequently, dismiss the present revision petition with costs of Rs.10,000/­. Pending application(s), if any, also stands dismissed."

12. Learned Senior Counsel appearing for the petitioner, during the course of arguments, relied upon the following judgments to press home his contention that the tenancy of the premises, being commercial in nature, had devolved upon even the present petitioner:

1. Damadilal and others Vs. Parashram and others, AIR 1976 Supreme Court 2229.
2. Vinod Kumar Vs. Rajesh Kumar and others, 1995(1) Sim. L.C. 452.
3. Balwant Rai Vs. Surjit Singh and others, 1996(2) Sim. LC 275.
4. O.P. Gupta Vs. R.K. Sharma, 2001(2) RCR 240.
5. Chaman Lal Bali Vs. State of Himachal Pradesh and another, Latest HLJ 2016 (HP) 1099.
6. Pardeep Kumar Ohari son of Smt. Ram Dulari and Anr. Vs. Purna Devi wife of Kishori Lal & Ors., 2016(3) Civil Court Cases 135 (H.P.).

I am not in detail dealing with the judgments so relied upon by the learned Senior Counsel for the petitioner, because the law as has been laid down in the said judgments, is about the inheritance of the tenancy ::: Downloaded on - 29/09/2019 02:51:30 :::HCHP 10 of premises, which are commercial in nature, by all the legal heirs, because this Court has not adjudicated on the issue whether the .

petitioner has inherited the tenancy or not to the prejudice of the petitioner. What this Court is holding is that as one of the tenants was served notice of the eviction proceedings, then it is not necessary that all the tenants are to be impleaded as parties, because service of notice on one of the legal heirs is sufficient service of notice of proceedings to all.

13. As this Court concurs with the findings returned by the learned Court below that service of notice on one of the legal heirs is sufficient service of notice of proceedings to all and as further it is evident from the record of the case that the impleaded respondent is not only looking after his interest in the lis, but also the interest of other legal heirs of deceased Beant Singh, this Court finds no infirmity in the impugned order, dated 01.12.2015 and as the petition is without any merit, the same is dismissed, so also pending miscellaneous applications, if any.

(Ajay Mohan Goel) Judge August 29, 2019 (bhupender) ::: Downloaded on - 29/09/2019 02:51:30 :::HCHP