Delhi High Court
Nanu Mal vs Bhagwat Pershad @ Bhagwat Sarup And Anr. on 8 March, 1994
Equivalent citations: 54(1994)DLT249
Author: D.P. Wadhwa
Bench: D.P. Wadhwa, D.K. Jain
JUDGMENT D.P. Wadhwa, J.
(1) This is plaintiff's appeal. His suit for possession of shop premises bearing No. 534, Katra Ishwar Bhawan, Khan Baoli, Delhi, and also foramens profits was dismissed by the judgment and decree dated 30/01/1980of the Additional District Judge, Delhi. The suit was filed on 23/08/1993against defendant Bhagwat Pershad. Later his brother Rishikesh was also imp leaded as second defendant. Both the defendants are real brothers of KishanGopal who was tenant of the shop premises as alleged by the plaintiff and was having business there in the name of M/s. Ganpat Rai Kishan Gopal ('the firm' forshort) as its sole proprietor. Kishan Gopal died some time in August 1968. the plaintiff, who is the owner and landlord of the shop, contended that defendant Bhagwat Pershad occupied the shop after the death of Kishan Gopal without any authority and his possession was, thus, unlawful and unathorised. The plaintiff also claimed mesne profits, but for determining the mesne profits he prayed for appointment of Local Commissioner. The defendants contested the suit. There are various pleas in the alternative. They said the firm was a Joint Hindu Family firm,and for this firm the premises were taken on rent in the year 1946 by Kishan Gopal and his brother Rishikesh. They also said that proceedings were filed earlier by the plaintiff under the provisions of the Delhi Rent Control Act against the firm but these were compromised and Kishan Gopal and Rishikesh were accepted as tenants of the shop. An objection was raised that Rishikesh was a necessary party.As noted above, Rishikesh was ordered to be imp leaded as a defendant as a subsequent stage. Defendants said that another petition for eviction filed under Section 14(l)(b) of the Delhi Rent Control Act by the plaintiff was also dismissed and that the firm had been sued through its partners Rishikesh and Kishan Gopal.Then the defendants said that defendant Bhagwat Pershad was the younger brother of Kishan Gopal and Rishikesh and he had been sitting in the shop and conducting the business on behalf of his brothers for the last many years. It was stated that the rent of the shop was being deposited by Bhagwat Pershad on behalf of his brothers and that the compromise in eviction proceedings was also signed by Bhagwat Pershad on behalf of his brothers. It was, therefore, contended that the plaintiff could not call Bhagwat Pershad as unauthorised occupant. Then it was stated, though in the alternative, that tenancy of Kishan Gopal had not been terminated during his life time and these tenancy rights after the death of KishanGopal devolved upon his legal heirs and those legal heirs, it was contended, were necessary parties in the proceedings. An objection was, thus, raised that the suit was not maintainable in law for want of non-joinder of necessary parties.
(2) The fact that Kishan Gopal had legal heirs had not been disputed by the plaintiff. These included his mother, his wife and children. It was the case of the plaintiff that since the tenancy of Kishan Gopal had been terminated during his lifetime, the tenancy rights did not devolve upon his heirs or anybody else, and further that heirs of Kishan gopal were not in possession of the shop, and they were,therefore, neither necessary nor proper parties. On the pleadings of the parties, the following issues were framed:- PRELIMINARYIssue:1. Whether the suit is barred under Section 50 of the Delhi Rent ControlAct, 1958?Issues:2. Whether the plaintiff is the owner of the shop in dispute ? 3. Whether the tenancy of M/s. Ganpat Rai Kishan Gopal has been duly terminated ?4. Whether the defendants are tenants in the suit property as alleged ?5. To what amount on account of mesne profits, if any, is the plaintiff entitled ?
(3) In support of his case, the plaintiff led oral evidence. Since the ownership of the plaintiff is not disputed, documents showing his ownership are not relevant.PW-1 Prem Chand Gupta, PW-2 S.R. Madan, and PW-3 Devinder Sharma talk about the ownership of the shop by the plaintiff and it is not necessary to refer to their statements. PW-4 Mr. S.L. Sethi was the Advocate of the plaintiff. He served a notice of attornment (Ext. PW4/3) on behalf of the plaintiff on the firm. In crossexamination Mr. Sethi admitted that notice Ext. D-l was sent under the signature of his son Mr. Ravinder Sethi, Advocate, to the firm on the instructions of the plaintiff. PW-5 is the plaintiff himself. He said he never accepted Bhagwat Prashad his tenant. He admitted that he had filed earlier a petition for eviction against the firm where he mentioned this firm to be a partnership firm. This, he said, he did as defendant Bhagwat Sarup had told him that it was a partnership firm, and that plaintiff had no personal knowledge about the same. He said mentioning of the firm as partnership was not intentional. Subsequently, plaintiff said he learnt that Kishan Gopal was the proprietor of the firm. He also said that he never saw KishanGopal or any of his heirs or even Rishikesh, defendant No. 2, in the shop but only Bhagwat Sarup, defendant, was found there. In the same breath the plaintiff said that after the death of Kishan Gopal, Bhagwat Pershad got into possession of the shop without the consent or permission of the plaintiff. In cross-examination plaintiff admitted that he had been making purchases from and selling goods to the firm through Kishan Gopal only, and that defendant Rishikesh used to write letters and Hundis or keeping the accounts. Plaintiff said he was not aware if mother of Kishan Gopal was alive or that she lived with defendant Bhagwat Pershad. Much of the cross-examination pertained to earlier eviction proceedings filed by the plaintiff against the firm. The plaintiff denied that defendant Bhagwat Sarup had been sitting in the shop in dispute since very beginning and said he started sitting in the shop only after the death of Kishan Gopal in 1968. Plaintiff denied the suggestion that defendant Bhagwat Sarup was sitting in the shop on behalf of the heirs of Kishan Gopal and also on behalf of Rishikesh. Plaintiff said he did concede in the Court of the Additional Rent Controller in eviction proceedings filed by him against Kishan Gopal that Kishan Gopal and Rishikesh were the partners, but he said it was a wrong statement made under some mistaken belief.
(4) That is all the evidence of the plaintiff.The defendants in their evidence examined only the defendant Bhagwat Prashad; brought on record certain documents and closed their evidence. Bhagwat Prashad said Kishan Gopal died on Janmashtami day in August 1968 and was survived by his mother, wife and children. He admitted that it was he who was sitting in the sho (5) The learned Additional District Judge by the impugned judgment held issues 2and 4in favor of the plaintiff and against the defendants.lssue No. 3 was held in favor of the defendants holding that tenancy of the firm had not been dulyterminated. Issues 1 and 5 were discussed together and these were decided in favor of the defendants. Consequently, the suit was dismissed. It is issue No. 1which is the subject-matter of serious contest between the parties. The learned Trial Court after holding issue No. 3 in favor of the defendants held that since the tenancy of Kishan Gopal had not been terminated in his life time and the contractual tenancy devolved upon his heirs and the contractual tenancy being heritable,the plaintiff was not entitled to bring the suit for possession or mesne profits, and that the suit was, therefore, barred under Section 50(1) of the Delhi Rent ControlAct. Section 50(1) of this Act bars the jurisdiction of the civil Court and is asunder:- "JURISDICTION of civil Courts barred in respect of certain matters:-50(1) Save as otherwise expressly provided in this Act, no Civil Court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court or other authority."
The Trial Court held that since the question of mesne profits was necessarily interlinked with the question of unlawful possession, the plaintiff was not entitled to mesne profits from the defendants.
(6) The plaintiff has challenged the impugned judgment. He said the Trial Court erred in holding that earlier notice dated 3/04/1961 (Ext. PW4/3)terminating the tenancy of Kishan Gopal stood waived by a subsequent notice dated 28/08/1971 (Ext. D-l). Plaintiff says in his grounds of challenge that the Trial Court made out a new case for the defendants not pleaded by them and that the case set up by the defendants was not taken into account. He says that the defendants had pleaded that Kishan Gopal and Rishikesh were the joint tenants and on the death of Kishan Gopal the tenancy rights had devolved on Rishikesh and in-any case on the legal heirs of Kishan Gopal, and again the defense was that it was Bhagwat Sarup who was sitting on the shop in question on behalf of his brothers Kishan Gopal and Rishikesh and on the death of Kishan Gopal he was sitting on the shop now on behalf of Rishikesh and the legal heirs of Kishan Gopal. Plaintiff says that the, Trial Court also failed to take into consideration the case of Bhagwat Sarup that he was only in occupation of the shop as a licensee on behalf of his two brothers and he never claimed to be the tenant of the shop. That being so, plaintiff says the suit for possession should have been decreed against both the defendants, i.e.,Bhagwat Sarup and Rishikesh. The principal attack in the grounds by the plaintiff is on the notice Ext. D-l which, he says, could not be relied upon by the Trial Court.He says when notice Ext. D-l was sent to the firm it was only by way of abundantcaution. When on the date when the notice was issued Kishan Gopal had already died and as such this notice could not have waived the earlier notice (Ext. PW4/3)which had validly terminated the tenancy of Kishan Gopal, and that Kishan Gopal was a statutory tenant at the time of his death. It was, therefore, pleaded that once the contractual tenancy has been terminated during the life time of Kishan Copal,notice Ext. D-l was of no effect. It was submitted that notice Ext. D-l was never pleaded by the defendants in their written statement and .was merely put to a witness during cross-examination, and that it did not come from the lawful custody and the plaintiff was not asked any question relating to this notice and even thedefendant Bhagwat Sarup in his statement did not referred to this notice at all. We think this argument by the plaintiff on the admissibility of Ext. D-l is an act of desperation on his part. It cannot be disputed that notice Ext. D-l is a relevant piece of evidence and supported the case of the defendants even on the first issue.
(7) Let us see the sequence of events culminating in filing of the suit by the plaintiff which led to the passing of the impugned judgment. That the plaintiff is the owner and landlord is not disputed. He became owner sometime in 1958. On 3April, 1961 he sent notice (Ext. PW4/3) addressed to the firm M/s. Ganpat Rai Kishan Gopal. In the notice it was stated that the firm was a tenant and that the shop was let out to it for the purpose of running Kiryana and dry fruits business, and that for the last about 1-" years the shop was being used as a godown and further that it had been sublet to various persons for stocking their goods for short periods. Itwas, therefore, stated that since the conversion of the shop into a godown was detrimental to the interest of the plaintiff and the subletting was without the consent of the plaintiff, the notice was liable to eviction. The notice, i.e., the firm,was called upon to pay up the arrears of rent and also to stop misuse of the shop as a godown. Otherwise', the firm was threatened with a petition for eviction. This notice does not purport to terminate the tenancy of the firm. On 13/06/1961 the plaintiff filed a petition for eviction against the firm under the provisions of the Delhi Rent Control Act for eviction. The grounds of eviction were non-payment ofrent, misuser, and subletting. A copy of the petition is on record (Ext. PW4/1). In this the firm had been sued-through Kishan Gopal, its partner. The plaintiff admitted the firm to be a partnership firm. This petition was contested by KishanGopal as a partner of the firm and the written statement is Ext. DW1/1. Plaintiff appeared as a witness in these proceedings for eviction and he said that Bhagwat Sarup (who was present in Court at the time of recording of the statement) used to.sit in the shop for sometime. This petition for eviction was compromised, and the order of the Additional Rent Controller regarding compromise is dated 6/02/1964 (Ext. PW4/2). We may reproduce this order - "ORDER:COUNSELfor the respondent has stated that the respondent admits the petitioner to be his landlord in respect of the premises in dispute and that the amount being deposited in Court may be given too the petitioner. Counsel for the petitioner has not pressed any other ground.Counsel for the parties have also stated that the reasonable standard rent of the premises should be Rs. 51.00 per month and they have prayed that the same be fixed with effect from 1.2.1964. I fix standard rent accordingly which in my view is the reasonable standard rent of the premises in dispute. The amount lying deposited in Court be given to the petitioner who is held to be landlord of the premises in dispute of the respondent. The petition is dismissed. File be consigned. Parties shall bear their own costs.Announced: Sd/- Pritpal Singh6.2.1964. Additional Rent Controller,Delhi."
This order itself will also show that notice Ext. PW4/3 outlived its utility even if it is assumed that it purported to terminate the tenancy of Kishan Gopal when itwas addressed to the firm which the plaintiff admitted to be a partnership firm and Kishan Gopal, a partner thereof.
(8) On 15/01/1965 yet another eviction petition was filed by the plaintiff under the provisions of the Delhi Rent Control Act (Ext. DWI/2). In this the plaintiff sued the firm through Kishan Gopal and Rishikesh as partners of the firm.The address of both Kishan Gopal and Rishikesh was that of the shop in dispute.Again the grounds of eviction were unauthorised subletting and non-payment ofrent. It was admitted at the Bar that this petition was dismissed in default though after the respondent firm had put in its appearance. The plaintif, however, does not give any reason why he got this petition dismissed.
(9) Then comes the notice dated 28/08/1971 (Ext. D-1) which has been referred to above. Again this notice was sent to the firm at the address of the fOrmat the shop in question and not to Kishan Gopal. It is not that the plaintiff was stranger either to Kishan Gopal, Rishikesh or Bhagwat Sarup. We have notedabove, he was having business dealings with the firm and it is not believable that in 1971 he was not aware that Kishan Gopal had died. Notice was addressed to the firm as plaintiff had all through admitted this firm to be a partnership firm. Then the present suit was filed on 30/08/1973.
(10) V. It appears, there is no stopping the plaintiff in his crusade against the defendants to have the shop premises vacated. In a span of less than 10 years he filed three proceedings for eviction, or possession, against the firm. Considering the conduct of the plaintiff it is difficult to believe his statement that earlier he thought that the firm was a partnership firm under some misapprehension. As to how he had such a mistaken belief he had no plausible explanation to offer. It appears to us that once having come to know that Kishan Gopal had died, and ona wrong legal advice, he embarked upon the present litigation. It remained undisputed that Kishan Gopal is survived by his mother, wife and children and his brother Rishikesh is also alive. That being so, the legal heirs of Kishan Gopal would become tenants of the shop claiming their rights through Kishan Gopal. Law on this question is well settled by the Supreme Court in Smt.. Gian Devi Anand v. Jeevan Kumar and Others, . Mr. Gupta, learned Counsel for the plaintiff,however, vehemently argued that as far as Bhagwat Sarup was concerned, he had no right to possession of the shop and that no legal heirs of Kishan Gopal had come for ward to claim their rights in the shop, and that if they had any right in the shop,they would be entitled to file objections to the decree if passed against Bhagwat Sarup during the course of execution proceedings, or they would even be entitled to file a suit challenging the decree. In support of his submission Mr. Gupta referred to two Bench decisions of this Court in Mahavir Prasad v. Sukhdev Mongia andAnother, 1990 (2) R.C.J. 254, and Prem Pal Singh v. Jugal Kishore Gupta, . We do not think any of these two decisions is of any application to the present case. The argument of Mr. Gupta proceeded like this. The Court assumes jurisdiction on the basis of allegations made in the plaint and that the Court cannot look beyond that. We do not agree. It is true that initially the Court assumes jurisdiction on the basis of allegations made in the plaint, but then when the written statement is filed and objection raised about the jurisdiction and issue framed and evidence led, the Court has nevertheless to decide that issue. In both the decisions referred to above the plaintiff-landlord had alleged that the defendants were licensees or in unauthorised occupation of the premises and the Court held on evidence that that being so, it would certainly have jurisdiction in the matter. That is not the case here. Bhagwat Sarup had clearly proved his case that he was in possession of the shop on behalf of legal heirs of deceased brother Kishan Gopal and Rishikesh, and that Rishikesh and legal heirs of Kishan Gopal continued to be the tenants of the shop premises. Court cannot close its eyes to such facts and yet proceed to pass a decree against Bhagwat Sarup embroiling everyone in futurelitigation. We do not agree with the findings of the learned Trial Court that possession of Bhagwat Sarup and/or Rishikesh was unauthorised. Notice Ext. D-1 showed that the case set up by the plaintiff was not true. In order to defend the suit the defendants had only to prove that they were the tenants, or that they were in lawful possession of the shop premises. This they did. Civil Court, therefore, had no jurisdiction and the suit was barred under Section 50 of the Delhi Rent ControlAct.
(11) Mr. Gupta contended that since none of the legal heirs of Kishan Gopal came to defend the suit it was a case of implied surrender or abandonment of the.tenancy existing in favor of Kishan Gopal. This was not the case pleaded by the plaintiff, no issue raised and no evidence led, and we will not, therefore, take notice of such a submission. However, reliance was placed by Mr. Gupta on the decision of a Single Bench of this Court in Sushil Kumar v. Bhagwanti Devi and Another,1989 (2) R.C.J. 629. That was an appeal arising out of certain proceedings for eviction under the Delhi Rent Control Act. The landlord had earlier filed a petition for eviction against the tenant on the ground of non-payment of rent. An order to deposit rent was made which the tenant complied and eviction petition was,therefore, dismissed. Again the tenant defaulted and a second eviction petition wasfiled. In this the tenant took up the plea that his father was the tenant earlier and on his death all his legal heirs became co-tenants by inheritance. The landlord,however, pleaded that after the death of the father of the tenant, the tenant atoned to the landlord and he alone had been paying rent all these years and no such plea was taken in the earlier eviction petition, and, therefore, the plea of co-tenancy could not be raised and was barred by principles of res-judicata. The tenant failed,his eviction was ordered, and ultimately he came to this Court in second appeal. In the meanwhile, other heirs of the tenant father filed objections under Section 25 of the Delhi Rent Control Act claiming independent right/title in the premises. Here the heirs succeeded in the Court of the Additional Rent Controller, but that order was set aside by the Rent Control Tribunal on an appeal filed by the landlord.Against that order the heirs again came in appeal to this Court and both the appealswere. decided together by the learned Single Judge. The learned Single Judge observed that it was no doubt true that the heirs of the deceased tenant 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 Delhi Rent Control Act would devolve on his legal heirs. He, however, noted that had the plea of implied surrender of tenancy rights not been taken and found in favor of the landlords by the Court below, certainly, will the heirs would have become the co-tenants of the premises and would-have been entitled to the.' protection of the Act. In the present case before us there was no plea of implied surrender or abandonment of the tenancy rights by the legal heirs of Kishan Gopal.Judgment of this Court. in Sushil Kumar's case does not support the case of the plaintiff.
(12) It was then submitted that once the Trial Court held that defendants were in unauthorised occupation of the shop, a decree ought to have been passed irrespective of the fact that they were legal heirs of Kishan Gopal or that the legal heirs were necessary parties to the suit. For one, we do not think that issue No. 4 was rightly decided in favor of the plaintiff. It does appear to us that Trial Court did not properly appreciate the documentary evidence of earlier eviction proceedings on record and the prevaricating stand of the plaintiff. The statement of the plaintiff does not inspire confidence. In view of the preliminary issue which is comprehensive and in view of the evidence on record that Kishan Gopal was survived by his legal heirs and that the defendants, even if Rishikesh was not a tenant, were in any case in lawful possession of the shop, no decree for eviction could have been passed by a Civil Court. Mr. Gupta referred to a decision of the Supreme Court in Rameshwar and Others v. Jot Ramand Others, , to submit that the right to relief must be judged to exist as on the date the plaintiff institutes the legalproceedings. We are unable to appreciate this argument. Such a question is not arising in the present case. Then it was submitted, in answer to an argument by the defendants that legal heirs of deceased Kishan Gopal were necessary parties to these proceedings, that under Order I Rule 9 of the Code, before its amendment by the Amending Act of 1976, suit could not be defeated. Order I Rule 9 is as under,the proviso having been added by the Amending Act of 1976 w.e.f. I February,1977 :- "MISJOINDER and non-joinder.9. No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:Provided that nothing in this rule shall apply to non-joinder of a necessary party."
We think the proviso only made explicit what was already implicit that in case the necessary parties are not before the Court it cannot decide the suit at all in theirabsence. This will appear to us to be the ratio of the decision of the Supreme Court in Profulla Chorone Requitte and Others v. Satya Choron Requitte, . But then to an extent Mr. Gupta is right. It is not the case of the plaintiff that the defendants and legal heirs of Kishan Gopal were joint tenants, and that all the joint tenants had to be imp leaded in the suit. Mr. Gupta also referred to two Bench decisions of the Patna and Bombay High Courts in Mahabir Mistry and Others v.Sm. Lachhmini Devi and Others, , and Vyankatesh Dhonddev Deshpande v. Sou, Kusum Dattatraya Kulkarni and Others, . Mr. Gupta said that since on the finding of the Trial Court that defendants were in unauthorised occupation of the shop complete and effective relief could be granted to the plaintiff, it was not necessary to implead the legal heirs of Kishan Gopal In the suit and that they were not, and could not be, necessary parties and the suit could not fail in their absence. As we have noted above, the argument of Mr. Gupta proceeded thus that the legal heirs of Kishan Gopal could be well within their rights to file objections in the execution proceedings and also file a separate suit challenging the decree in the present case. That may appear to be the result, but once the Court finds that the case of the plaintiff itself is based on the fact that Kishan Gopal was a tenant, and that he survived by his legal heirs, it is difficult to see how the Court, both in law and equity, will grant a decree to the plaintiff, and involve the parties in multiplicity of litigation. Procedure is meant to advance justice and not to the art it. In any case, we have already held that possession of Bhagwat Prashad and Rishikesh could not be termed as unauthorised. That being the position, the plaintiff cannot take advantage of the provision of Order I Rule 9 of the Code.In this view of the matter, the plaintiff fails and the appeal is dismissed withcosts.