Gauhati High Court
Sri Nripen Saikia vs Smti Anuradha Saha & Ors on 21 March, 2017
Author: S. Serto
Bench: S. Serto
1
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
C.R.P No. 123 of 2007
Sri. Nripen Saikia
Son of late Nabin Saikia,
Resident of Sen Para, Dhubri Town, in the district
of Dhubri, Assam.
..............Petitioner
-VERSUS-
1. Smti. Anuradha Saha
2. Smti. Nirmala Saha
3. Smti. Meera Saha
4. Smti. Sabita Chodhury
Nos. 1 to 4 all daughters of Late Khetra Mohan Saha, resident of Sen Para,
Dhubri, in the district of Dhubri, Assam.
The names of legal heirs of respondent No.2 and respondent No.4 have been
substituted at page 2(a) vide Hon'ble Court's orders dated 01.08.2016 passed in I.A. (C) No. 793/16 and M.C No. 1949/2011 respectively.
..................Respondents
-BEFORE-
THE HON'BLE MR. JUSTICE S. SERTO
For the petitioner : Mr. S. Shyam,
Mr. A. Dhar,
Ms. R. Hazarika, Advs.
For the respondents : Mr. B.R Dey, Sr. Adv.
Mrs. T. Goswami,
Mr. B. Sarkar,
Mr. P.K. Sen,
Mr. J. Paul, Advs.
2
Date of hearing : 08-02-2017
&
Date of judgment : 21-03-2017
JUDGMENT & ORDER (CAV)
1. This is a revision petition filed under Article 227 of the Constitution of India, challenging order dated 21.03.2007, of the Court of Civil Judge, Dhubri, wherein, the learned Civil Judge disposed two Misc.(J) cases being No. 271/2007, and 272/2007.
Heard the learned counsel for the petitioner and also heard the learned counsel for the respondent No.1.
2. Brief facts which led to the filing of this Civil Revision Petition are stated here below;-
That the petitioner by purportedly executing an agreement dated 02.01.1984, became a tenant of one Biresh Chandra Poddar, defendant No.2, in the original Title Suit No. 234/1989, and proforma respondent in the Title Appeal No.27/2006, in respect of a portion of a house standing in a plot of land measuring 3K 11L, covered by Khatian No.39 and Dag No. 114 & 115, situated at Bidyapara part Dhubri Town, Dhubri District. And while continuing as such, a suit being No.234/1989, was instituted in the Court of Munsif, Dhubri by the respondents, who are the sisters of Mr. Biresh Chandra Poddar, the defendant No.2 in the original title suit, and proforma respondent in the appeal, praying for eviction of the defendant No.1, the present petitioner.
The suit was decreed in favour of the present respondents on 25.04.2006. Not satisfied with the judgment and decree, the petitioner herein filed an appeal before the learned Civil Judge (Senior Division), Dhubri on 02.06.2006. And while the appeal was pending the petitioner filed two applications, one under Order XIII Rule 10 and the other under Order XLI Rule 27 praying for calling of records of three title suit cases viz. T.S No. 5/2002, T.S No. 19/1987 and T.S No. 136/2000, pending before other Courts and also to allow him to lead additional evidence to show that respondent No.4 and proforma defendant, one of the owners of the 3 land, Shri. Biresh Chandra Poddar has expired during the pendency of the original suit before the trial court, respectively.
The learned Civil Judge (Sr. Div.) took up the two applications and disposed them by a common order dated 21.03.2007, which is impugned herein.
Being aggrieved, the petitioner has come to this Court praying for setting aside the impugned order.
3. The case of the petitioner as submitted by the learned counsel is as follows;
That since the decree passed by the trial court was after the death of one of the plaintiffs. i.e., plaintiff No.4/respondent No. 4 and, defendant No.2/proforma respondent, the decree is non est. Therefore, in order to bring these facts into record of the appeal he prayed for calling of the records of the said three title suits pending before other Courts and also to file additional evidences in support of his case. These two applications, however, were dismissed by the learned Civil Judge (Sr. Div.), without considering the fact that such evidence if brought on record will have a significant bearing on the outcome of the appeal.
That the legal heirs of Biresh Chandra Poddar are necessary parties in the title suit and unless they are brought in as parties no effective order or decree can be passed in respect of the suit land. Since this fact was not taken in consideration by the learned Civil judge (Sr. Div.) while passing the impugned order he has committed error in law.
In support of his submission, the learned counsel submitted the judgment of the Hon'ble Supreme Court in the case of Rajendra Prasad & Anrs., Vrs- Khirodhar Mahto and others, reported in (1994) Suppl.(3) SCC 314, and in the case of North Eastern Railway Administration, Gorakhpur Vrs- Bhagwan Das (D) by Lrs., reported in (2008) 8 SCC 511.
4. In reply, the learned counsel for the respondents submitted as follows;
That the petitioner became one of the tenants in the property which belongs to the respondents and their brother Biresh Chandra Poddar who was impleaded as defendant No.2 in the original suit and proforma respondent in the appeal. The petitioner stopped paying the rent of the house he was occupying, therefore, a suit 4 for eviction was intended to be filed against him. While preparation for the same was going on Biresh Chandra Poddar being one of the co-owners was asked to join the suit but he declined to take part in the suit, therefore, he was impleaded as one of the defendants in the said original suit. And, therefore, summon was issued to him but he did not appear. As such, the court proceeded ex-parte in his case.
Under such facts and circumstances, there was no need of bringing into record or producing additional evidence regarding his death, submitted the learned counsel.
The learned counsel also submitted that as regards to the death of respondent No.4, who was one of the plaintiffs in the title suit. Non-impleadment of her legal heirs will not vitiate the outcome of the pending appeal as the original suit was for eviction only. The learned counsel further submitted that in an eviction case one of the owners or any of the co-owners can file a suit for eviction and there is no necessity of showing that he had taken option or consent of other co-owners.
In conclusion, the learned counsel submitted that this petition is nothing but a play to delay the process of eviction, therefore, is abuse of the Court's process. The learned counsel cited the case of Mohinder Prasad Jain Vrs- Manohar Lal Jain, reported in (2006) 2 SCC 724. The relevant para- 10 and 11 are reproduced herein below;-
"10. This question now stands concluded by a decision of this Court in India Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt.) & Ors. [(2004) 3 SCC 178] wherein this Court opined:
"Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co- owners. (See Sri Ram Pasricha v. Jagannath [(1976) 4 SCC 184] and Dhannalal v. Kalawatibai [(2002) 6 SCC 16], SCC para 25.) This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co- owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co- owners. One of the co-owners cannot withdraw his consent midway the suit so 5 as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co- owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law."
11. A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co- owner to show before initiating the eviction proceedings before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event, a co-owner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein. The submission of the learned counsel for the appellant to the effect that before initiating the proceedings, the appellant was required to show that he had experience in running the business in Ayurvedic medicine, has to be stated to be rejected. There is no law which provides for such a pre-condition. It may be so where a licence is required for running a business, a statute may prescribe certain qualifications or pre-conditions without fulfilment whereof the landlord may not be able to start a business, but for running a wholesale business in Ayurvedic medicine, no qualification is prescribed. Experience in the business is not a pre-condition under any statute. Even no experience therefore may be necessary. If the respondent has proved his bona fide requirement to evict the appellant herein for his own purpose, this Court may not, unless an appropriate case is made out, disturb the finding of fact arrived at by the Appellate Authority and affirmed by the High Court".
5. I have gone through the entire record of the suit that was before the trial court and before the appellate court. It is seen from the judgment and decree of the trial court that summon was sent to Sri. Biresh Chandra Poddar, and he did not appear inspite receiving of the same, and the case proceeded ex-parte against him only thereafter, (vide order dated 17.11.2000, passed by the trial court).
Therefore, the petitioner's prayer before the first appellate court to produce evidence on the death of Biresh Chandra Poddar was uncalled for. Because, by producing such evidence, it will not in any way change the outcome of the appeal, as the case before the trial court had been proceeded ex-parte against him. As regards to the death of respondent No.4, there is no dispute that she was one of the co-owners of the property from which the petitioner's eviction was sought for and for which the whole process of litigation was put on motion. In such petition for eviction, as rightly pointed out by the learned counsel for the respondents and 6 supported by the judgment submitted, there is no need for the other co-owners to implead or to bring into record her legal heirs.
In view of what has been stated above, this court finds no legal infirmity or rhyme or reason to interfere in the order passed by the learned Civil Judge (Sr. Div.) i.e., the impugned order.
Considering the reasons and keeping in view the facts and circumstances, submitted by both the parties, this petition appears to be more of a delaying tactic on the part of the petitioner. Therefore, this Court does not appreciate the same.
Accordingly, petition is dismissed.
Send back the Lower Court records. The learned Civil Judge (Sr. Div.) on receipt of the records should make all endeavours to dispose the appeal, at the earliest, keeping in view of the fact that the litigation has been stretching on for long since 1989.
No order as to cost.
JUDGE Kevi