Allahabad High Court
Smt. Indra Sharma vs Lt. Col. S.K. Sharma And Ors. on 11 July, 2005
Equivalent citations: 2005(4)AWC3122, AIR 2006 (NOC) 52 (ALL), 2005 ALL. L. J. 2824, (2006) 1 CIVILCOURTC 480, (2005) 2 RENCR 666, (2005) 2 ALL RENTCAS 450, 2005 A I H C 4018, (2006) 1 RECCIVR 27, (2005) 60 ALL LR 422, (2005) 4 ALL WC 3122
Author: Poonam Srivastava
Bench: Poonam Srivastava
JUDGMENT Poonam Srivastava, J.
1. Heard Sri R. N. Singh, senior advocate, assisted by Sri Rahul Sripat and Sri Rajul Bhargava, advocates appearing for the revisionist Smt. Indra Sharma in Civil Revision No. 83 of 2005. Sri Ravi Kant, senior advocate, assisted by Madhav Jain, advocate appearing for the plaintiff respondents. Sri Murlidhar, senior advocate, assisted by Sri R. P. Singh, advocate appearing for the M/s. Guruji Motors Pvt. Ltd. in Civil Revision No. 84 of 2005 and one of the respondent in Civil Revision No. 83 of 2005.
2. The Civil Revision No. 83 of 2005 is filed by Smt. Indra Sharma and Civil Revision No. 84 of 2005 is on behalf of M/s. Guruji Motors Pvt. Ltd. and others. Two revisions are consolidated. Counter and rejoinder-affidavits have been exchanged. Record of the lower court was summoned by a special messenger, which is also placed before me. The record is available as such I proceed to decide these revisions finally.
3. Both the revisions have been filed challenging the ex parte judgment and decree dated 31.1.2005 passed by Additional District Judge, Court No. 1, Agra in S.C.C. Suit No. 9 of 2004 instituted by the Col. S. K. Sharma against the defendants M/s. Guruji Motors Pvt. Ltd. and others for eviction and arrears of rent. According to the defendant-revisionist in Civil Revision No. 83 of 2005, Smt. Indra Sharma wife of the plaintiff was arrayed as proforma defendant. The revisionist and her husband had strained relations and were living separately. It is admitted between the parties that a divorce suit has also been instituted at the behest of Col. S. K. Sharma against Smt. Indra Sharma. According to the plaint's case, the disputed property comprises of portion of basement floor, second basement floor and ground floor of the building situated at plot No. 131/212, C.D. and E, The Mall, Agra Cantt Agra. The relief claimed in the plaint was for decree of eviction and recovery of Rs. 12,73,912 along with pendente lite and future interest at the rate of 6% per annum and that the plaintiff Col. S. K. Sharma be put in actual possession over the suit property. A decree for pendente lite mesne profit at the rate of Rs. 10,000 per day was also claimed by the plaintiff respondents. The case of the plaintiff was that the suit property was let out at the rate of Rs. 2,30,000 (Two lacs thirty thousand) per month. The lease deed was executed and according to the terms of the lease deed, 50% of the rent i.e., Rs. 1,15,000 (One lac fifteen thousand) was liable to be paid to the plaintiffs and the remaining half of the amount was to the co-landlord Smt. Indra Sharma. It is submitted that originally the property was leased for a period of 11 months and it was agreed that in case the tenants continue in occupation after expiry of the original period of tenancy, the rent will be enhanced by 5% on every occasion and fresh lease deed will be executed. It was admitted by the plaintiff that the tenants paid the plaintiffs share of rent upto May 2003 through cheque after deducting T.D.S. Initially, the amount towards rent paid to the plaintiff was at the old rate and thereafter for months of April and May, 2003 rent was paid at the enhanced rate, i.e., Rs. 1,20,750 (One lac twenty thousand seven hundred fifty) per month. It was clearly stated in the plaint that the plaintiff was not aware regarding payment of share to the other landlord his wife Smt. Indra Sharma. In paragraph No. 7 of the plaint, it has been stated that the defendants 1st Set, i.e., tenants have denied plaintiffs title and therefore renounced their character as tenants. The tenancy of Guruji Motors Pvt. Ltd. was determined by service of a duly registered notice dated 20.2.2004 calling upon them to pay entire arrears of rent and eviction. It was contended that the cause of action for recovery of rent arose on 30.6.2003 when the rent for first month became due and thereafter on the last date of every subsequent month till 24.3.2004. Perusal of the impugned judgment shows that the court below has recorded a finding "in respect of service of the summons that defendants neither filed the written statement nor they have appeared to oppose the suit. Hence the suit is heard ex parte". While decreeing the suit, learned Judge has accepted the version of the plaint and placed reliance on an affidavit filed in support of the plaint and certain other documents as per list 25 Ga holding that there is nothing on record to disbelieve the unopposed and uncontroverted version of the plaint and affidavit.
4. Certain facts are necessary to be examined as stated on oath by Smt. Indra Sharma in Civil Revision No. 83 of 2005. According to the revisionist, the property in dispute was purchased by Smt. Indra Sharma and her three sons vide three sale deeds dated 9.2.1984, 28.11.1985 and 17.3.1990. Copies of which have been annexed as Annexures-1, 2 and 3 to the revision. The revisionist got the plan sanctioned from Agra Development Authority vide order dated 12.1.1994, a copy of which has been annexed as Annexure-4 to the revision. It is contended on behalf of the revisionist that the building plan was sanctioned exclusively in the name of Indra Sharma and her three sons namely Vinay Sharma, Gagan Kumar Sharma and Rahul Sharma. They applied for financial assistance in the Canara Bank Cantt., Agra. The loan was sanctioned and the loan account bears Account No. KCGADPNO 20255. A lease agreement was entered into with the defendants creating a tenancy in favour of M/s. Guruji Motors Pvt. Ltd. vide agreement dated 2.6.2003. The rent fixed was Rs. 2,30,000 (Two lacs thirty thousand) per month, which was being paid regularly after deducting the T.D.S. A sum of Rs, 1,09,525 (One lac nine thousand five hundred twenty five) was deposited in the loan account and Rs. 95,000 (Ninety five thousand) was paid to the revisionist per month. The statement of the loan account issued by the Canara Bank dated 31.1.2005 has been annexed as Annexure-6 filed in support of the affidavit. Unequivocal statement has been made by the revisionist Smt. Indra Sharma that she received regularly the past rent of the premises in question from the respondent Nos, 2 to 4, which was claimed by plaintiff Lt. Col. S. K. Sharma. The knowledge of the suit was gained by the revisionist on 31.10.2004, inspection of the record was done on 1.11.2004 and then it came to know for the first time institution of the present suit for rent and eviction. Immediately, an application under Section 151, C.P.C. along with an affidavit after obtaining copies of the entire record was filed. The claim of the revisionist is that she was surprised to know that the respondent No. 1 claimed himself as co-landlord of the premises in dispute on the basis of an agreement to the effect that the rent will be shared half and half by the husband and wife. She specifically denied any such agreement and also that he was a co-landlord, and he had no title over the premises in dispute. The revisionist was surprised to know that service of notice has been held to be sufficient on the presumption clause under Order V, Rule 19A, C.P.C. It is further submitted in paragraph No. 13 of the affidavit filed along with stay application by Smt. Indra Sharma that she was ousted from the house situated at 103A, Akbar Road, Agra Cantt, Agra, where she used to reside with husband plaintiff. In fact, the address given in the plaint is same where the plaintiff resides and the revisionist was ousted long back. The change of address of the applicant, which is shown in the memo of revision as 147A, Ellora Enclave Agra was nowhere brought on record. The impugned order has been passed behind the back of the applicant. Counsel for the revisionist has specifically placed a copy of the summons sent on 16.7,2004 and the endorsement of the process server. Perusal of the report of process server shows that when he reached at 103A, Akbar Road, Agra Cantt., Agra, he found the premises locked. The neighbour and other guard deputed in the house informed him that the revisionist has vacated the premises in question. However, the notice was pasted on the main gate. There is no endorsement or signature of any other witness regarding service of summon. The impugned order has been challenged by revisionist Smt. Indra Sharma. It is argued on her behalf that the plaintiff-respondent had no right to institute the suit as he was not the co-landlord or had any title to half share of the rent. The so called notice determining the tenancy was also on behalf of the plaintiff alone, who had no authority to do so. The revisionist had not joined in determining the tenancy and as such the suit was legally not. maintainable. It has been contended by the counsel that assuming the Court decided to proceed ex parte holding that the notice was sufficient, the judgment given by the court below is not judgment within the meaning of Civil Procedure Code. "Judgment as defined in Section 2(9) of the Code means statement given by the Judge on the ground for decree or order. The Order XX, Rule 4 (2) states that judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision". The judgment should be self-contained documents from which it should appear as to what was the fact of the case, what was the controversy involved, the process of reasoning by the Court, which led to reach an ultimate conclusion and finally decree the suit. This should be clearly reflected in the judgment. Reliance has been placed on decision of the Apex Court in Balraj Taneja and Anr. v. Sunil Madan and Anr., 1999 (4) AWC 2.129 (SC) (NOC) : 2000 SC and FBRC 96, paragraph No. 29 of the said decision is quoted below :
"As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment bindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order VIII, Rule 10, C.P.C. Before passing the judgment against the defendant it must see to it that even if the facts, set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need to be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in, Sub-rule (2) of Rule 5 of Order VIII, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order VIII."
In the light of the aforesaid decision, the judgment impugned in the revisions "can hardly be said to be judgment within the meaning of the Code". In fact, the Additional District Judge was completely led away by the facts that since the notice was held to be sufficient and no one has put in appearance, therefore, the allegation of the plaint has to be accepted as a gospel truth. The Court failed to record any finding or call for any evidence in support of the plaint allegation. In view of what has been laid down in the decision of the Apex Court in the case of Balraj Taneja (supra), it can hardly be said that the court below has decided any question raised in the plaint.
5. The second point argued by Sri R. N. Singh, senior advocate, is on the question of a notice under Section 106 Transfer of Property Act determining the lease by owner/ landlord. Reliance has been placed on decision of a Full Bench of Gujarat High Court in Nanalal Girdharlal and Anr. v. Gulamnabi Jamalbhai Motorwala and Ors., , where it has been held that if there are two or more co-owners of property either it is a case of grants of a lease acting together or any one of them grants lease on behalf of himself acting as an agent. No one single co-owner can give notice determining the lease, notice to quit must be given by or on behalf of co-owners in accordance with rule. Subsequently, similar view was taken in another decision of this Court in Gurudayal Saran Prasad v. District Judge, Dehradun and Ors., 1998 (1) AWC 174 : 1997 (2) ARC 535, where it has been held that notice under Section 106 Transfer of Property Act, sent only by the plaintiff and the suit also filed only by him, when there are other co-landlords, the notice was not valid and the suit was not proper. In the instant case, it is not only the notice, which has been given by the so called landlord Lt. Col. S. K. Sharma but it is a case where the other landlord has been arrayed as one of the defendant and without service of notice, the suit has been decided ex parte. The other co-landlord Smt. Indra Sharma has come up in a revision challenging the said judgment with an unequivocal case that she and her three sons are owners of the disputed property and Lt. Col. S. K. Sharma plaintiff has no right whatsoever. It is not a case where the co-owner instituted the suit and gave a notice and it can be said that there was consent implicit of all the other landlords. Another decision cited by counsel for the revisionist Akhilesh Singh v, Vijay Singh and Ors., 2004 (1) ARC 213, it has been held that where there are several co-owners one of them alone cannot terminate the tenancy unless he alone is the owner or has the consent express or implied of the other co-landlords. In the instant case, the plaintiffs case is specific that the rent payable by the tenant was divided between two landlords, half of the amount was paid to the plaintiff and half of the amount to the revisionist. In such circumstances, the Court cannot decree the suit on the basis of notice given by one of the self proclaimed landlord and without concurrence of the revisionist, who was admittedly co-landlord/co-owner, In the circumstances, I am of the considered view that the suit cannot be instituted singularly by Lt. Col. S. K. Sharma without there being consent of the present revisionist. The impugned judgment is liable to be quashed on this ground as well. The third point raised by the counsel for the revisionist is that the court below illegally allowed the application 17C whereby the Court passed an order to the effect that the defendant Nos. 1, 2 and 3 have been served and so far as the present revisionist defendant No. 4 is only a proforma defendant and a notice has already been sent in respect whereof postal receipt is on record. More than a month have elapsed, service was deemed to be sufficient on the present revisionist. I have examined report of the process server as the lower court record is before me, which do not show that there has been any service effected on the revisionist. It has emphatically been argued that the court below held sufficient service in view of provisions of Order V, Rule 19A, C.P.C. It is submitted that the said provisions stand repealed by the amended Act No. 46 of 1999. Admitted position is that the revisionist filed an application under Section 151, C.P.C. for setting aside the ex parte order on 1.11.2004. The said application has been annexed as Annexure-9 filed in support of the affidavit. Thereafter, several dates were fixed by the learned Judge and the application was finally rejected in an arbitrary, illegal and unjust manner. On the same day, the suit was decreed, the Court had rejected the application for the reasons that hearing was over and as such the application is not maintainable. Perusal of the judgment clearly shows that there is not even a whisper about the application dated 1.11.2004 as already discussed above. The judgment can hardly be said to have been passed after any argument on behalf of the plaintiff, the judgment do not disclose any reasons for accepting the plaint version in totality. The court below did not even think it proper to ask the plaintiff to prove the case by means of his oral evidence as well as documentary evidence. The suit was decreed ex parte only on account of reason that the defendant failed to appear and file written statement and the Court has recorded a finding that it had no other option but to accept the plaint version.
6. There is another aspect of the case, which is noteworthy. The case was transferred to the Court of Additional District Judge and after the transfer, he did not think it proper to send notices in any manner whatsoever to the defendants in confirmation with the provisions of Rule 89A of General Rules (Civil). The manner in which the Additional District Judge conducted himself in deciding the S.C.C. suit speaks volume about his conduct. Especially, when the revisionist had filed an application under Section 151, C.P.C. bringing to his notice that she alone is the landlord and owner of the premises in question and also that she does not subscribe to the notice. The trial Judge gave a complete goodbye to an honest reasoning and proceeded illegally to decide the suit. Reliance has been placed on another decision of this Court in Aktaryar Khan v. Azhar Yar Khan, 1994 ALJ 690, the provisions of Rule 89A of General Rules (Civil) was interpreted which reads as follows :
"Rule 89A (D.--When a case, i.e., a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed, is transferred from that court to another, the former court shall record the order of transfer in the order sheet and get it signed by the counsel of the party or parties, if any party is unrepresented, information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the presence of the parties noted.
(2) A note to the effect that a party or the parties have been informed in accordance with Sub-rule (1) shall be made on the record by the transferring court.
(3) Where the cases are transferred in a large number the courts from which they are transferred shall, besides following the procedure laid down in Sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be pasted on the notice board of the local Bar Association for information of the members of the Bar and another copy to be pasted on the notice board of the Court for information of the general public. It shall also send to the other court along with records of the transferred cases, a copy of the list (or relevant extract of it); the other court shall paste it on its own notice board. If the other court is situated in a different place in which there is another Bar Association, an extra copy of the list shall be sent to it for being pasted on the notice board of the Bar Association.
(4) The Court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer".
This Court has set aside the judgment of the Judge Small Causes Court for non-compliance of the Rule 89A of General Rules (Civil). This decision squarely applies to facts of the present case. Counsel for the plaintiff-respondents has argued that since no application for setting the ex parte decree, the appeal cannot be converted into proceedings for setting aside the decree. Reliance has been placed on decision in Smt. Maya Devi and Ors. v. Mehria Gram Dall Mill, Hissar and Ors., AIR 1988 P&H 176. Another decision cited by counsel for the contesting respondents is Smt. Laxmibai v. Keshrimal Jain, AIR 1995 MP 178 and also 1984 (1) ARC 642. A Full Bench decision of this Court has been cited by Sri Ravi Kant, senior advocate, Gopal Das and Anr. v. 1st Additional District Judge, Varanasi and Ors., 1987 (13) ALR 275. I have gone through these decisions, facts of the present case are absolutely different. In fact, the manner in which the suit was decided ex parte is a glaring example of how the Judge Small Causes Court decided the suit ex parte transcending the basic legal principles and it cannot be left to stand. Sri Ravi Kant, senior advocate, has argued that the revision at the behest of revisionist Smt. Indra Sharma is not maintainable as there is no whisper how she is aggrieved. Initially, a short counter-affidavit was filed and later on a detailed counter-affidavit was submitted. The tenant M/s. Guruji Motors Private Limited has also submitted short counter-affidavit. Shri Murli Dhar, senior advocate, appearing for the tenant has also adopted argument of Shri R. N. Singh, senior advocate, and the reasoning given above holds good in respect of the connected revision instituted on behalf of the tenant M/s. Guruji Motors Private Limited.
7. For the reasons discussed above, the two revisions succeed and are allowed with costs. The impugned order dated 31.1.2005 is quashed.