Himachal Pradesh High Court
Asha vs Raj Kumar Mehra And Ors on 27 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
C.R. No.8/2017.
Reserved on: 21.12.2017 Decided on: 27.12.2017 ____________________________________________________________________ Asha .......Petitioner Versus Raj Kumar Mehra and ors. .......Respondents ____________________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No For the petitioner:
r Mr. R.K. Bawa, Senior Advocate with Mr. Ajay Kumar Sharma, Advocate .
For the respondents: Mr. Bhupender Gupta, Senior Advocate
with Mr. Naresh Sharma and Ms.
Poonam Gehlot, Advocate, for
respondents No. 1 and 2.
Tarlok Singh Chauhan, J. (oral).
The instant petition under Section 24(5) of the Urban Rent Control Act is directed against the impugned order dated 2.7.2016 passed by the learned Rent Controller (3), Shimla, whereby she dismissed the application No. 76-6 of 2016-15 under Order 1 Rule 10 read with Section 151 CPC filed by the petitioner seeking her impleadment as party respondent 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 2
in case No.26/2 of 2013/2012, titled as Raj Kumar Mehta and another vs. Surinder Mohan, on the ground that she was a tenant in the premises of which eviction proceedings have been .
initiated b y the landlord.
2 The bare minimal facts , as necessary for the adjudication of this case, are that the landlords/respondents filed an eviction petition against proforma respondent Surinder Mohan mainly on the grounds that the demised premises are required for extension of their business and the tenants are in arrears of rent. It was alleged that late Trilok Chand, proprietor, M/s Bhagat Sons was the original tenant in the demised premises and after his death , tenancy was inherited by his son Surinder Mohan.
3 In the application filed by the petitioner herein seeking her impleadment as party respondent, it was averred that late Trilok Chand and late Devi Chand before the respective dates of their death were doing business in the demised premises and the petitioner is one of the legal representatives of late Trilok Chand as she had inherited the tenancy rights in the tenanted premises after the death of Trilok Chand. Besides the present petitioner and Surinder Mohan, there are other legal representatives of Trilok Chand and Devi ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 3 Chand, who have not been arrayed as party respondents, even though they are necessary and proper party , therefore, no effective order can be passed in the main petition. It was .
averred that the landlords being fully aware of the inheritance of tenancy rights of the legal representatives of late Trilok Chand and late Devi Chand had intentionally failed to implead them as party respondents to the eviction petition constraining the petitioner to file the application under Order 1 Rule 10 read with Section 151 CPC .
4 The landlords/respondents opposed the application by filing reply wherein preliminary objections were taken to the effect that the application as framed was not maintainable as the particulars given by the petitioner were vague and indefinite to the extreme; and the affidavit filed in support of such application was vague and incomplete. It was further averred that the application was mala fide and had been filed in order to delay the eviction proceedings. It was further averred that the petitioner was dominus litus of the case, therefore, the respondents cannot be forced to litigate against the person(s) against whom they do not choose to litigate . Lastly, it was averred that without conceding the correctness of the averments even if it is assumed that there are any other legal ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 4 representatives of late Trilok Chand, who have not been made party to lis, they are not necessary party inasmuch as it is not necessary to bring on record the entire body of legal .
representatives/heirs of the original tenant, who are deemed to have impliedly surrendered the alleged tenancy.
5 On merits, the preliminary objections were elaborated and in addition thereto, it was submitted that no one except the proforma respondent had been doing business in the demised premises at the time of death of Trilok Chand and therefore, it was he alone, who had inherited the tenancy of the demised premises.
6 On the pleadings of the parties, the learned Rent Controller on 4.6.2016 framed the following issues:-
1 Whether the applicant was ordinarily running the business in the demised premises at the time of death of late Sh. Trilok Chand and as a consequence, has inherited tenancy rights in the same? OPA 2 In even of finding on first issue being in affirmative, whether the applicant is a necessary party to the eviction proceeding in hand? OPA 3 In event of finding on first two issues being in affirmative, whether the petitioner/non -applicant cannot be directed to pursue this eviction petition against the applicant? OPR 4 Whether the application in hand is not maintainable, as alleged? OPR ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 5 5 Whether at any point of time, the applicant surrendered her tenancy with regard to demised premises, if so, its consequence? OPR 6 Relief.
.
7 After recording the evidence and evaluating the same, the learned Rent Controller while answering issue No.1 in favour of the petitioner dismissed the application vide order dated 2.7.2016 constraining her to file the instant revision petition.
8 It is vehemently argued by Mr. R.K. Bawa, learned senior counsel for the petitioner that the impugned order passed by the learned Rent Controller is perverse inasmuch as the learned Rent Controller has failed to take into consideration the pleadings, evidence and the law on the subject and, therefore, findings so returned by her deserve to be set aside, whereas Mr. Bhupender Gupta, learned senior counsel for the respondents/landlords would vehemently argue that the findings returned by the learned Rent Controller are in consonance with the law and, therefore, need to be upheld .
9 I have heard learned counsel for the parties and have also gone through the impugned order and facts of the case.
::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 610 At the outset, I may notice that the petitioner while seeking her impleadment as party respondent in the eviction proceedings, in para 6 of the application under Order 1 Rule 10 .
read with Section 151 CPC has categorically stated that she came to know about the filing of the eviction petition only in June 2015 when she visited Shimla to meet her relatives. If that be so, obviously it is difficult to conceive that the petitioner had in fact been carrying out the business in the demised premises.
11 Noticeably, even though the petitioner tried to lead evidence through her power of attorney to show that she in fact had been continuing to run business in the demised premises since the death of her father, but it would be noticed that this is not even the case set up by her in the application under Order 1 Rule 10 CPC.
12 It is more than settled that the evide nce adduced beyond pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with the pleadings.
13 Even if one was to look at the evidence led by the petitioner it would be noticed that she herself did not ch oose to step in the witness box and there is no plausible explanation forthcoming for doing so. Now, so far as the attorney of the ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 7 petitioner is concerned, he is none other than the impleaded tenant Surinder Mohan (proforma respondent herein), but then this witness has clearly admitted that his relationship with the .
petitioner was not very cordial. Moreover, he is not even aware as to how many children the petitioner has despite the fact that she is none else than his sister. He is also not aware whether her husband is dead or alive. There are lot many questions which the attorney has failed to answer and leaves no manner of doubt that he has colluded with the petitioner so as to delay the eviction proceedings.
14 As noticed above, in case the application for impleadment is perused the petitioner has categorically stated that she came to know about the eviction petition only in the last week of June 2015 when she visited Shimla to meet her relatives. Thus, the learned Rent Controller committed no irregularity much less illegality in discarding the testimony of her attorney. The petitioner was hale and hearty and as there was no plausible explanation forthcoming for not stepping in the witness box, therefore, this Court is left with no other option but to draw an adverse inference against the petitioner.
15 Moreover, It is more than settled that heirs of original tenant succeed to his tenancy on his death as joint ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 8 tenants and the tenancy cannot be split as it devolves on the heirs. There is no divisio n 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 and, therefore, service of notice of proceedings on one of the tenants is sufficient notice to all.
16 Similar issue came up before this Court in Raj Rani and others vs. Naresh Kumar Suri and others, 2007(1) Shim. LC 149, wherein it was observed as under:
"5. Mr. T .S. Chauhan, appearing for the petitioners has cited a large number of judgments. All the judgments are only to the effect that under the H.P. Urban Rent Control Act on the death of a tenant occupying commercial premises, his tenancy is inherited by all his legal heirs. This legal position is not disputed. In the present case the petition was filed against the original tenant. When the tenant died his two sons were impleaded as legal representatives in his place. They never raised any objection that the present petitioners should also be impleaded as parties. Even the petitioners did not deem it fit to approach Rent Controller with a plea that they should also be impleaded as parties. If they had been in possession of the premises they would have definitely been aware of the pendency of the petition and should have approached the Court to implead them as parties. The proceedings went on for almost 13 years without the ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 9 present petitioners ever raising any contention that they should be impleaded as respondents in the case. The brothers contested the petition of the landlord, tooth and nail till the Apex Court. It was only after the execution .
proceedings were filed and orders for breaking open the locks were passed that the present petitioners filed the objections. Now the sisters would have this Court believe that their brothers who contested the case right upto the Apex Court have colluded with the landlords. This cannot be believed.
6. It is well settled law that the heirs of an original tenant succeed to his tenancy on his death as joint tenants. Service of notice of proceedings to one of the tenants is sufficient notice to all. Reference in this behalf may be made to the judgment of the Apex Court in H.C. Panday vs. G.C. Paul, (1989) 3 SCC 77, wherein the Apex Court held as follows:
"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 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 therefore. 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 ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 10 notice served on the respondent was sufficient. It seems to use that the view taken in Ramesh Chand Bose is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as .
tenant in common. In our opinion, the notice under Section 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore, the suit must succeed."
8. A perusal of the judgment of the Apex Court clearly shows that it is a single tenancy which devolves upon the heirs and there is no division of the premises or of the rent payable thereof. Applying the ratio of the said case to the present petition it is clear that the brothers acted on behalf of all the tenants and contested the petition on behalf of the entire body of the tenants. They represented the estate of the deceased. After having contested the case till the Apex Court for 12 years and having lost throughout the brothers by subterfuge are now trying to bring forward the sisters to avoid and delay the eviction. The proceedings have been pending for almost 15 years now and the tenants have lost at eve ry stage. It would be a mockery of justice if they are permitted to raise such objections at this stage."
17 Now in case the petitioner had been carrying out business in the demised premises ever since the death of Trilok Chand, she would have definitely been aware about the pendency of the petition and thereafter should have approached ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 11 the Court at the earliest to implead herself as a party and having failed to do so , she has no one to blame except herself.
18 Once it is held that the petitioner was not carrying .
on the business in the demised premises then obviously there is implied surrender of tenancy on her part as has been correctly recorded in the impugned order passed by the learned Rent Controller.
19 It is more than settled that surrender can be expressed or implied, which can be established from the conduct of the parties. Even if there is no intention to surrender, the surrender of tenancy can be implied from the attending circumstances.
20 Similar issue regarding surrender of tenancy came up before this Court in Harish Kumar Plaha vs. Shashi Kumar and others, Latest HLJ 2009 (HP) 371, wherein it was observed as under:
"6. In the application filed by the petitioner, there is no allegation that the applicant and his step brother are doin g a joint business or that that they are residing in a joint family. All that was stated was that after the death of Ram Nath Plaha the applicant alongwith defendant No.1 came into possession of the suit property. This fact is not correct. One of the main argument of Shri Anand Sharma was that the deceased father was running a joint ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 12 business in the premises and this business was jointly inherited by the applicant and his brother. This submission is without any basis since no such allegations have been made in the application. In fact, the applicant .
has not seriously contested the stand of the landlords that after the death of Ram Nath Plaha the applicant never remained in possession of the premises nor paid any rent thereof. The original defendant did not also raise the plea that the applicant is also a joint tenant in the premises. There is no proof that the brothers are living jointly or that they have a joint mess or that they are residing as a joint family. In fact, from the material on record, it appears that they are not real brothers but step brothers and they have never lived together.
7. The Andhra Pradesh High Court in Konijeti Venkayya and another vs. Thammana Peda Venkata Subbarao and another, AIR 1957 Andhra Pradesh 619 (V 44, C 205, Oct.) considered the scope of ambit of Section 111(e) of the Act. In para 12 of the said judgement, it was held as follows:-
"Implied surrender is, however, recognized and provided for by section 111, clause (f) of the Transfer of Property Act and the illustration thereto, which refers to a lessee accepting from his lessor a new lease of the property leased, to take effect during the continuance of an existing lease. The illustration is obviously not exhaustive of cases of implied surrender. The principle of implied surrender or surrender by operation of Law was thus enunciated by Parke, B in (1844) 153 ER 118 at p. 127 (E).::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 13
This term is applied to cases where the owner of a particular estate has been a party to some act, the validity of which he is, by law, afterwards estopped from disputing and which would not be valid if this particular .
estate had continued to exist. There the law treats the doing of such act as amounting to a surrender..... All the old cases will be found to depend on the principle to which we have adverted, viz., an act done by or to the owner of a particular estate the validity of which he is estopped from disputing and which could not have been done if the particular estate continued to exist. The law there says, that the act itself amounts to a surrender. In such case it will be observed there can be no question of intention. The surrender is not the result of intention. It takes place independently and even in spite of intention."
8. Similar view was taken by a single Judge of the Allahabad High Court inSmt. Madhubala vs. Smt. Budhiya and another, AIR 1980 Allahabad 266, wherein the Court has observed:-
"In the instant case none of the heirs have come up before the court to assert their tenancy rights. The name of the heirs have also not been categorically stated. None ofthe alleged heirs are living in the property. None of them have paid any rent and it is the own case of the respondents that they alone are the tenants of the property. In the circumstances it is a clear case of implied surrender of tenancy by other heirs of Kundan."
The aforesaid Judgement was approved by the Division Bench of the Allahabad High Court in J.J.Pancholi vs. Sridharjee and others, AIR 1984 Allahabad 130. The ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 14 Rajasthan High Court has also taken a similar view in Nora tmal vs. Mohanlal AIR 1966 Rajasthan 89.
9. From the perusal of the aforesaid judgements and a bare reading of Section 111(f), it is apparent that the .
Transfer of Property Act recognizes the concept of implied surrender. This implied surrender can be established by the conduct of the parties. Even if there is no intention to surrender, the surrender of tenancy can be implied from the attending circumstances. In the present case, there is ample material on record to show that after the death of his father, the applicant never resided in the demised premises. He never paid the rent thereof. He did not ever remain in possession thereof, He never contested the right of his brother to be the sole tenant. His conduct leaves no manner of doubt that he had no inten tion to continue with the tenancy. He impliedly surrendered his tenancy and therefore, his brother became the sole tenant of the premises in question."
21 Yet again, similar issue recently came up before this Court in Ramesh Chander Sehgal vs. Rajesh Kumar and others, 2015 (2) RCR (Rent) 382, wherein entire law on the subject was discussed in the following manner:
7. Learned Single Judge of Delhi High Court in Sushil Kumarvs. Bhagwanti Devi and another, 1989 (1) RCR 365 has held that when the death of tenant of shop occurs and only one of the heirs of tenant continued business and paying rent and getting receipts, other heirs would be deemed to have surrendered their tenancy rights. Learned Single Judge has held as under:::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 15
"[14] It is settled principle of law that implied surrender or surrender by operation of law occurs firstly by creation of new relationship or secondly by relinquishment of possession. Implied surrender does .
not depend on the inten tion of the parties, like express surrender. It has to be implied from the conduct of the parties. The principle underlying Sec. 111(f) of the Transfer of Property Act is that whatever relationship exists between two parties in respect of particular premises and new relationship arises, if two sets of relationships cannot exist as being inconsistent and incompatible that is to say, if the latter can come into effect only on termination of earlier, that would be deemed to have been terminated in order to enable the latter to operate. The essence of implied surrender is net change of possession but the doing of an act which is inconsistent with the continuance of the lease or tenancy.
[15] In view of the admitted facts that after the death of Chaman Lal, Susbil Kumar alone was issued rent receipts in respect of the premises by the respondents-landlords ; other heirs never asserted their tenancy rights and could not produce any rent receipts issued by the respondents-landlords in their favour ; Sushil Kumar was alone carrying on business in the shop ; and other facts, the only inevitable conclusion which can be drawn is that the conduct of the parties is in inconsistent with the continuance of lease of the other heirs of Chaman Lal after his death and is in conformity with creation of new relationship of tenant and landlord between Sushil Kumar and the respondents. Therefore, I uphold the contention of the learned counsel for the respondents landlords and endorse the finding of the ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 16 learned Tribunal that Sushil Kumar was alone attorned as tenant after the death of Chaman Lal and by conduct other heirs would be deemed to have surrendered their tenancy rights, if any, impliedly."
.
8. Learned Single Judge of Delhi High Court in Mohd.
Usman vs. Mst. Surayya Begum, 1990 (2) RCR 408 has held that decree is binding against all the heirs even obtained against one of the heirs. Learned Single Judge has held as under:
"[5] I find no force in the contention raised by the learned counsel for respondent No. 1. The provision regarding inheritance of tenancy in respect of Mahomedans and Hindus is not different. The Supreme Court in Gian Devi Anand's case has no doubt observed that tenancy right which is inheritable devolves on the heirs under the ordinary law of succession. It only means that only those heirs who would be entitled to inherit the property of a deceased tenant under the ordinary law of succession would be entitled to inherit even the right of tenancy after the death of the tenant. This position is amply clear from the fact that even under Section 19 of the Hindu Succession Act 1956 which prescribes the mode of succession of two or more heirs provides that if two or more heirs succeed together to the property of an intestate they shall take the property as tenants in common and not as joint tenants and in-spite of this the Supreme Court in H.C. Pandey's case has observed that the heirs of a deceased tenant succeed to the right of tenancy as joint tenants. The Supreme Court in H.C. Pandey's case has observed as follows:-
"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 ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 17 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 there. 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 was served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (AIR 1977 All. 38) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In the Transfer of Property Act notice served by the appellant on the respondent is a valid notice and therefore the suit must succeed."
[6] In the light of the above observations of the Supreme Court there can be no doubt that even if one of the legal heirs is not a party to proceedings for eviction filed by the landlord against the legal he irs of the original tenant, that heir who has been left out cannot later on come forward and agitate his or her right in the tenancy. In the present case, I find that Surayya Begum who claims to be living in the same dispu ted premises alongwith other legal heirs after the death of Khalil Raza has chosen to file her objections after the whole round of litigation is over and after the other legal heirs have lost right upto the Supreme Court. It is thus clear that these objections are filed only to defeat the decree and delay the ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 18 execution of the decree. In my view, therefore, even if Surayya Begum was not a party to the previous litigation between the parties she has no right to object to the execution of the decree and the .
Additional Rent Controller ought to have dismissed the objectionson that ground alone."
9. Their Lordships of the Hon'ble Supreme Court in Pushpa Rani and othersvs. Bhagwanti Devi and another, AIR 1994 SC 774 have explained the principles when implied surrender by other heirs of their rights of tenancy can be inferred as under:
"[7] The contention strenuously urged by Sri Aruneshwar Gupta in support of these appeals is that it is a settled law that even a non -residential tenancy is heritable, that the heirs of a deceased tenant inherit the tenancy and that the decree against Sushil Kumar alone was insufficient to denude the rights of the appellants who are the other heirs.
On a consideration of the evidence, the High Court concurring with the findings of fact on the point recorded by the Rent Controller and the Tribunal, held that after the death of Chaman Lal it was Sushil Kumar alone who continued in occupation of and was carrying on the business in the premises and that in the circumstances of the case the other heirs must be held to have surrendered their rights of tenancy. This implied surrende r was inferred from the evidence as to the conduct of the other heirs. The principle in Gian Devi's case (1985 (1) Suppl. SCR 1 :
(AIR 1985 SC 796) as to the heritability of a non- residential tenancy relied upon by Sri Gupta does not detract from, and is not inconsistent with, the principle of implied-surrender. The finding on implied ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 19 surrender, in our opinion, is supported by the evidence on record. Both the Rent Control Tribunal and the High Court, in our opinion, were right in not countenancing the claim of the heirs which incidentally .
came through the challenge on the executing side.
So far as the appeal of Sushil Kumar is concerned, there is hardly anything that can be said in support of it."
10. In the instant case, if the petitioner is permitted to be impleaded at this stage, it would amount to de novo trial, more particularly, when the case was already listed for final arguments.
11. Learned Single Judge of Delhi High Court in Prakash Wati Bali vs. Manish Dewan, 1996 (2) RCR 378 has held that tenant leaving behind a number of legal heirs, only one of them paying rent and obtaining rent receipts from landlord and others did not object nor asserted tenancy rights, the other legal heirs impliedly surrendered the tenancy. Learned Single Judge has held as under:
"[8] The Supreme Court in the case of Mst. Surayya Begum (supra) dealt with the question, as to whether, the eviction decree against one of the legal heirs who was not made a party to the proceedings was valid, the Court came to the conclusion that the eviction decree obtained by the landlord is binding on all the legal heirs of the deceased-tenant irrespective of whether or not they were impleaded as parties to the eviction proceedings. However, such heirs are entitled to object to the decree on the ground of fraud or collusion between the landlord and the other heirs of the deceased tenant and if it can be shown any conflict of interests.::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 20
[9] In the background of the settled law the facts of the present case may be looked into. It is established that appellant No.2 after the death of his father was accepting the rent receipts and was paying rent and .
rent receipts were issued in his name in respect of the premises. He has also admitted that neither his mother nor sister nor any of the brothers ever objected to it. The mother, appellan t No.1, remaining two brothers and sisters never asserted their tenancy rights. The Rent Controller as well as the Rent Control Tribunal, therefore, came to the obvious conclusion that there was implied surrender of tenancy by the other heirs of the deceased-tenant in favour of appellant No.2 who alone became the tenant in the disputed premises. It may also be noticed that in the eviction petition filed by the earlier landlady Smt. Kishan Devi, appellant No.2 was only made party as a tenant. In paragraphs 3 and 9 of the eviction petition the specific plea was taken that Shri S.C.Bali was the tenant and the premises were occupied by him. The said appellant clearly replied to the averments made in the eviction petition and accepted that he was the tenant and was living in the premises along with his family. Similarly, the position is not denied in his own statement recorded as R.W.1. In the above background the conduct of appellant No.2 cannot be held to be bona fide and even in the present proceedings he has been contesting the same as it is conceded by the learned counsel for the appellant that he will be the ultimate beneficiary if this appeal is accepted. There is no challenge to the findings by appellant No.2 and the learned counsel has only confined his relief qua appellant No.1. The facts, accordingly, establish that appellant No.2 was ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 21 admittedly accepted as a tenant after the death of his father and in the absence of any collusion or mala fide on his part to defend the case and conflict of interest between himself and the respondent-landlord, .
the plea of appellant No.1 to be impleaded as a party at a belated stage before the Tribunal could not have been entertained and her application, as a consequence, was correctly dismissed. It is held by this Court in the judgment as reported in Mohd. Usman (supra) that a decree for eviction is binding against all the heirs even when one of the heirs is not impleaded as a party. The judgments cited by the learned counsel for the appellants will be, therefore, of no application to the present case."
12. Learned Single Judge of Delhi High Court in Smt. Amrit Kaur vs. M/s Om Prakash Fateh Chand Ltd., 2000 (1) RCR 286 has held that the plaintiff is the dominus litis of his litigation and he cannot be compelled to fight against a person ag ainst whom he does not wish to fight and against whom he does not claim any relief. Learned Single Judge has held as under:
"[8] It is well settled proposition of law that as a rule a party cannot be added when the plaintiff is opposed to such addition. Plaintiff is the dominus litis of his litigation. He cannot be compelled to fight against a person against whom he does not wish to Fight and against whom he does not claim any relief. A third person is only impeaded as a party in exceptional cases as has been mentioned in South Asia Industries Pvt. Ltd. 's case (supra). Certainly not in a case where the petitioner herself has taken contradictory stands."::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 22
13. Division Bench of Calcutta High Court in Santosh Kumar Mitra vs. Smt. Snehalata Roy, 2000 (2) RCR 616 has held that when the suit was filed for eviction against all legal heirs except one who had left the .
premises, the suit was not bad and there was implied surrender of tenancy by the legal heir who left the premises. Division Bench has held as under:
"[8] Be that as it may, as noted herein earlier, we may note that originally one Surendra Krishna Mitra was a tenant in respect of the suit premises under Promotha Nath Roy Public Charitable Trust and after his demise, the tenancy was inherited by all the heirs of the deceased Surendra Krishna Mitra. But the rent receipts were issued only in the name of rdefendant No. 1 by the Promotha Nath Roy Charitable Trust, the previous landlord. After purchase, by the respondent from Promotha Nath Roy Charitable Trust, the said trust issued a letter of attornment in favour of Sri Sudhangshu Kumar Mitra defendant No. 1 only and accordingly, Sudhangshu Kumar Mitra on behalf of the heirs and legal representative of the deceased tenant paid rent to the plaintiffs/respondents and the plaintiffs/responden ts also granted rent receipt in the name of the defendant No. 1 Sudhangshu Kumar Mitra. In the year 1984, an ejectment suit was filed by the respondents for eviction against the defendant No. 1 only but the said suit was subsequently withdrawn after finding that an application for addition of party was filed by the defendant Nos. 5 and 7 on the ground that on the death of the original tenant Surendra Krishna Mitra, all the heirs and legal representatives of the deceased original tenant became monthly tenants under the plaintiff/respondents. In order to shorten ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 23 the litigation, the plaintiffs/respondents thought it fit to withdraw the suit which was filed against defendant No. 1 alone and accordingly the present suit was filed for eviction on the ground of reasonable .
requirement against all the heirs and legal representatives of the deceased tenant excepting Smt. Anita Mitra. Now the question is whether without making Smt. Anita Mitra a party to the suit, the suit could be decreed by the trial Court. In our view, the trial Court was, in the facts and circumstances of this case, fully justified in decreeing the suit of the plaintiffs/respondents even in the absence of Smt. Anita Mitra. It is true that on the death of one of the heirs and legal representatives of the deceased original tenant Sisir Mitra, his widow Smt. Anita Mitra was not made a party in the suit although his son who is appellant No. 2 before us was made a party to the same. It is not in dispute in this case that Smt. Anita Mitra has not been living in the suit premises for a long time and in fact has now become practically a permanent resident of Delhi. As noted hereinafter, the admitted position is that on the death of the original tenant, the tenancy was made in the name of the defendant No. 1 only and the rent receipts which were issued by the plaintiffs/respondents also stood in the name of the defendant No. 1 only. It is also an admitted position that one of the heirs and legal representatives of Sisir Kr. Mitra who was also one of the heirs and legal representatives of the deceased original tenant was made a party to the suit. The appellants also duly contested the suit by filing a written statement and denied the requirements of the plaintiffs/respondents of the suit premises. They also adduced evidence in support of ::: Downloaded on - 29/12/2017 22:59:28 :::HCHP 24 their case in defence. Therefore, the question is whether the estate of the original deceased tenant was duly represented in the suit or not. In our view, in the facts and circumstances of the case as noted .
hereinabove, the principles relating to doctrine of representation would operate or at least in its number inasmuch as when from the record, it appears that Smt. Anita Mitra was residing elsewhere and all the heirs and legal representatives of the deceased tenant made arrangement that rent was to be paid by the defendant No. 1 alone, the question of filing the suit also against Smt. Anita Mitra cannot arise as it has to be presumed that the defendants had represented Smt. Anitra Mitra also by the application of the principles of doctrine of representation.
[11] There is yet another aspect of this matter. It is an admitted position in this case that Smt. Anita Mitra had never exercised any right of tenancy in the disputed premises after the death of the original tenant or after the death of her husband Sisir Kr. Mitra. On the contrary, only the defendant No. 1 on the death of the original tenant paid rent to the plaintiffs/respondents on behalf of all the heirs and legal representatives of the deceased tenant. Only the defendant Nos. 5 and 7 by contesting the suit claimed to have acquired right of tenancy by inheritance in respect of the suit property. The defendant No. 1, in whose name, the rent receipts were issued by the landlord also did not choose to contest the suit. It is an admitted position that at any point of time that is to say during the pendency of the earlier suit for eviction which was filed only against the defendant No. 1, although the defendant Nos. 5 and 7 asserted their ::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 25 tenancy right by filing an application under Order 1 Rule 10 of the Code of Civil Procedure even then at that stage, Smt. Anita Mitra did not come forward to assert her right of tenancy in the suit premises.
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Either in the written statement or in the evidence it has not been stated that Smt. Anita Mitra has ever exercised any right of tenancy after the death of the original tenant or after the death of her husband. It is also not evident from the records that there was evidence that Smt. Anita Mitra paid rent either to the plaintiffs or to the defendant No. 1 after the death of the original tenant or after the death of her husband. It is also not evident from record that Smt. Anita Mitra did ever deposit any rent in the office of the Rent Controller, in respect of the suit premises. Therefore, all the above facts, in our view, would lead us to conclude that Smt. Anita Mitra had relinquished her right of tenancy in the suit premises by her conduct as aforesaid more so when there is no evidence that Smt. Anita Mitra has been residing in the suit premises nor she visits the suit premises regularly and on the other hand she has been living in Delhi permanently. In the case of Pusparani and others v. Bhagwanti Devi and another, 1994 Supp3 SCC 76, in paragraph 9 the Supreme Court observed as follows :-
"On a consideration of the evidence, the High Court concurring with the findings of fact on the point recorded by the Rent Controller and the Tribunal, held that after the death of Chaman Lal it was Sushil Kumar alone who continued in occupation of and was carrying on the business in the premises and that in the circumstances of the case the other heirs must be held to have surrendered their rights to ::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 26 tenancy. This implied surrender was inferred from the evidence as to the conduct of the other heirs. The principle in Gian Devi case as to the heritability of a non-residential tenancy relied upon by Shri Gupta .
does not detract from and is not inconsistent with the principle of implied surrender. The finding on implied surrender, in our opinion, is supported by the evidence on record. Both the Rent Control Tribunal and High Court, in our opinion, were right in not countenancing the claim of the heirs which incidentally came through the challenge on the executing side. So for as the appeal of Sushil Kumar is concerned, there is hardly anything that can be said in support of it."
[12] From the aforesaid decision of the Supreme Court, it can be concluded that since in this case admittedly Smt. Anita Mitra is not residing in the suit premises for a long time and in fact has been living in Delhi permanently, a case of implied surrender can easily be inferred from the evidence and the conduct of other defendants. Therefore, we are unable to hold that in the facts and circumstances of the case either the suit is bad for defect of parties or the notice was illegal and invalid as it was not addressed to or served upon Smt. Anita Mitra. Before parting with the submissions regarding the point of dismissal of the suit for defect of parties and illegality of the notice to quit as the same was not served upon Smt. Anita Mitra, we may note that both the aforesaid submissions of Mr. Bagchi were not urged before the trial Court and, therefore, they may not be permitted to raise such submissions for the first time in appeal. Union of India v. N.V. Phoneedran, 1995 6 SCC 45."
::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 2714. Learned Single Judge of Madhya Pradesh High Court in Fatima Bai vs. Shakir Ali and others, 2005 (1) RCR 159 has held that when the tenant leaves behind a number of legal heirs, suit for eviction .
against only one of the heirs who was actually occupying the premises and paying rent, was maintainable. Learned Single Judge has held as under:
"[7] DW/1 Fatima Bai has stated that her husband late Ali Husain was first inducted into the tenancy. On his death she continued paying rent to the plaintiff/respondent late Tahir Ali. Late Ali Husain was survived by herself the widow, four daughters and 2 sons. As against this statement, PW/1 Shakir Ali in para 11 has stated that the defendant/appellant DW/1 Fatima Bai was inducted into tenancy some 14-15 years ago on monthly rent of Rs. 15/- per month. Stressing on the statement of DW/1 Fatima Bai, it has been contended that all heirs of contractual tenant late Ali Husain on his death notwithstanding they are in possession or not ought to have joined as tenants in the suit seeking eviction of defendant/appellant Fathima Bai. In Shambhudayal v. Suleman, 1978 MPLJ 541 and Kanhaiyalal v. Shri Ram Singh,1991 JabLJ 119 considering the matter it has been held that the heirs on death of the original tenant, were joint tenants qua landlord and service of notice on the defendant alone was sufficient to determine the entire tenancy. Suit against such defendant who was in actual possession was maintainable. In this case DW/1 Fatima Bai has admitted that she was paying rent to late Tahir Ali. The suit house in fact is in her possession. As such, the plaintiff/respondents having sent the notice (Ex. P/2) rightly instituted the ::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 28 suit for eviction only against the defendant/appellant. Therefore, decree of eviction cannot be assailed on this ground."
15. Learned Single Judge of this High Court in Raj .
Rani and others vs. Naresh Kumari Puri and others, 2007 (1) Shim. L.C. 149 has held that when heirs of tenant on his death succeeded to his tenancy, service of notice to one is sufficient to all.
16. Learned Single Judge of this High Court in Harish Kumar Plaha vs. Shashi Kumar and others, Latest HLJ 2009 (HP) 371 has held that implied surrender can be established by conduct of parties even if there is no intention to surrender. In this case, the tenant after the death of father did not reside in the tenanted premises and never paid rent amount, thus, it was a case of implied surrender. Learned Single Judge has held as under:
"5. Ms. Radhika Gautam appearing on behalf of the respondents-landlords No. 1 and 2 contends that she is not disputing the proposition of law that tenancy is heritable. According to her, in the present case, it is apparent that the applicant had surrendered his right of tenancy. In support of her submission she has made reference to Section 111
(f) of the Transfer of Property Act which provides that the lease of immoveable property may be determined by implied surrender. She submits that the death of the original tenant took place in 1985.
Thereafter it is only respondent No.3 who was inducted as tenant in the premises. The rent for all these years was paid only by defendant No.3. The applicant never rema ined in possession of the tenanted property nor he ever paid the rent for the same and ::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 29 therefore, the only conclusion is that the applicant had surrendered his tenancy.
6. In the application filed by the petitioner, there is no allegation that the applicant and his step brother .
are doing a joint business or that that they are residing in a joint family. All that was stated was that after the death of Ram Nath Plaha the applicant alongwith defendant No.1 came into possession of the suit property. This fact is not correct. One of the main argument of Shri Anand Sharma was that the deceased father was running a joint business in the premises and this business was jointly inherited by the applicant and his brother. This submission is without any basis since no such allegations have been made in the application. In fact, the applicant has not seriously contested the stand of the landlords that after the death of Ram Nath Plaha the applicant never remained in possession of the premises nor paid any rent thereof. The original defendant did not also raise the plea that the applicant is also a joint tenant in the premises. There is no proof that the brothers are living jointly or that they have a joint mess or that they are residing as a joint family. In fact, from the material on record, it appears that they are not real brothers but step brothers and they have never lived together.
7. The Andhra Pradesh High Court in Konijeti Venkayya and another vs. Thammana Peda Venkata Subbarao and another, AIR 1957 Andhra Pradesh 619 (V 44, C 205, Oct.) considered the scope of ambit of Section 111(e) of the Act. In para 12 of the said judgement, it was held as follows:-
"..........Implied surrender is, however, recognized and provided for by section 111, clause (f) of the ::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 30 Transfer of Property Act and the illustration thereto, which refers to a lessee accepting from his lessor a new lease of the property leased, to take effect during the continuance of an existing lease. The illustration is .
obviously not exhaustive of cases of implied surrender. The principle of implied surrender or surrender by operation of Law was thus enunciated by Parke, B in (1844) 153 ER 118 at p. 127 (E).
This term is applied to cases where the owner of a particular estate has been a party to some act, the validity of which he is, by law, afterwards estopped from disputing and which would not be valid if this particular estate had continued to exist. There the law treats the doing of such act as amounting to a surrender..... All the old cases will be found to depend on the principle to which we have adverted, viz., an act done by or to the owner of a particular estate the validity of which he is estopped from disputing and which could not have been done if the particular estate continued to exist. The law there says, that the act itself amounts to a surrender. In such case it will be observed there can be no question of intention. The surrender is not the result of intention. It takes place independently and even in spite of intention."
8. Similar view was taken by a single Judge of the Allahabad High Court in Smt. Madhubala vs. Smt. Budhiya and another, AIR 1980 Allahabad 266, wherein the Court has observed:-"In the instant case none of the heirs have come up before the court to assert their tenancy rights. The name of the heirs have also not been categorically stated. None of the alleged heirs are living in the property. None of them have paid any rent and it is the own case of the ::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 31 respondents that they alone are the tenants of the property. In the circumstances it is a clear case of implied surrender of tenancy by other heirs of Kundan."
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The aforesaid Judgement was approved by the Division Bench of the Allahabad High Court in J.J.Pancholi vs. Sridharjee and others, AIR 1984 Allahabad 130. The Rajasthan High Court has also taken a similar view in Noratmal vs. Mohanlal AIR 1966 Rajasthan 89.
9. From the perusal of the aforesaid judgements and a bare reading of Section 111(f), it is apparent that the Transfer of Property Act recognizes the concept of implied surrender. This implied surrender can be established by the conduct of the parties. Even if there is no intention to surrender, the surrender of tenancy can be implied from the attending circumstances. In the present case, there is ample material on record to show that after the death of his father, the applicant never resided in the demised premises. He never paid the rent thereof. He did not ever remain in possession thereof, He never contested the right of his brother to be the sole tenant.
His conduct leaves no manner of doubt that he had no intention to continue with the tenancy. He impliedly surrendered his tenancy and therefore, his brother became the sole tenant of the premises in question."
22 Apart from above, it would be noticed that in the case set up by the petitioner seeking her impleadment there is not even a whisper that there had been collusion between the already impleaded tenant Surinder Mohan with the landlords ::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 32 and, therefore, she was required to be impleaded as party.
Once that be the position then taking into consideration the concept of tenancy as has been discussed above, her .
impleadment is not at all necessary as the tenant on record is capable of representing the entire estate.
23 Reference in this regard can conveniently be made to a judgment rendered by learned Single Judge of Delhi High Court in Tahira Behum vs. Sumitar Kaur and another, 2011(1)RCR 49, wherein it was held as under:-
"[26] Though the application for leave to defend appears to have been contested before the Additional Rent Controller merely on the aspect of ownership but the counsel for the respondents before this Court also urged that there are other heirs also of Sardar Nihal Singh against whom no petition for eviction has been filed. However, the other heirs are the married daughters of Sardar Nihal singh who are residing in their matrimonial home and not permanently residing in the tenancy premises. It is not the case that the respondents are not capable of representing the interest even if any of the other heirs. It is settled law that one heir of the tenant is capable of representing the entire estate unless shown to be in collusion with the landlord. See Surayya Begum Vs. Mohd. Usman, 1991 3 SCC 114. That is not the position here. The respondents have contested the case before the Additional Rent Controller and before ::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 33 this Court tooth and nail. Thus, the said ground cannot constitute a ground for grant of leave to defend."
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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 non -joinder 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 vs. 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 landlord s 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 ::: Downloaded on - 29/12/2017 22:59:29 :::HCHP 34 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 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.
December 27, 2017 (Tarlok Singh Chauhan)
(pankaj) Judge
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