CRP 520/2015 & CRP 526/15 Page 1 of 26

THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &

ARUNACHAL PRADESH)

CRP No. 520 of 2015

Radheshyam Jalan … Petitioner

-Versus-

1. M/s. Triplex.

2. Smt. Rekha Devi Achantani … Respondents

AND

CRP No. 526 of 2015

Radheshyam Jalan … Petitioner

-Versus-

1. Rakesh Kumar Achantani.

2. M/s. Triplex.

3. Smt. Rekha Devi Achantani … Respondents

BEFORE

HON’BLE MR. JUSTICE KALYAN RAI SURANA

Advocates for the Petitioner : Mr. G.N. Sahewalla, Senior Advocate.

: Ms. B. Sarma.

Advocates for the Respondents : Mr. Kamal Agarwal, Senior Advocate

: Mr. AK Gupta.

Date of hearing : 10.08.2017.

Date of judgment and order : 14.09.2017.

CRP 520/2015 & CRP 526/15 Page 2 of 26

JUDGMENT AND ORDER (CAV)

Heard Mr. G.N. Sahewalla, the learned Senior counsel for the

petitioner as well as Mr. K. Agarwal, learned Senior counsel assisted by Mr. A.K.

Gupta, learned counsel appearing for the respondents.

2) The petitioner- landlord is the common petitioner in both these two

revisions i.e. CRP 520/2015 and CRP 526/2015, which arise from the proceedings

of T.S. No. 2/2008.

3) For the sake of convenience, the respondents herein are hereinafter

referred as defendant per cause title of the amended plaint of the suit, except for

referring them as respondents as per cause title for CRP 520/15.

4) The petitioner herein filed TS No.2/2008, which was filed for evicting

the defendant No. 1 i.e. M/s. Triplex and defendant No. 2 i.e. Shri Rakesh Kumar

Achantani. By virtue of order dated 22.09.2010 passed by this Court in CRP

372/2010, Smti. Rekha Devi Achantani was impleaded as defendant No. 3 in the

suit. The said suit was decreed by judgment and decree dated 21.11.2012

passed by the learned Munsiff No. 2, Dibrugarh.

5) The defendant No. 2, namely, Rakesh Kumar Achantani preferred an

appeal against the said judgment and decree passed in TS 2/2008, which was

registered as T.A. No. 7/2013. The defendants No.1 and 3, namely, M/s. Triplex

and Smt. Rekha Devi Achantani filed a separate appeal against the same decree,

which was registered as T.A. No. 4/2013.

6) Both the appeals were analogously heard and both the appeals were

allowed by virtue of judgment and decree dated 10.09.2015 passed by the

learned Civil Judge, Dibrugarh, by reversing the judgment and decree passed by

CRP 520/2015 & CRP 526/15 Page 3 of 26

the learned trial court. Resultantly, the said TS No.2/2008 was dismissed on the

ground of non-joinder of one Rita Lalwani, the daughter of the defendant No. 3,

who is also one of the representatives of the predecessor in interest of defendant

No. 2 and 3, Late Motilal Achantani.

7) Therefore, the petitioner- plaintiff had filed two revisions i.e. CRP

520/2015 and CRP 526/2015 to challenge the first appellate judgment and

decree passed therein. The suit premises involved in T.S. No. 2 of 2008 is all that

Single storied C.I. sheet roofed premises measuring 23 feet X 30 feet approx.,

having mezzanine floor between the pucca floor and C.I. Sheet roof, having three

sides half brick walls and half C.I. Sheet walls, wooden doors on the front

included in Municipal Holding No.103, Ward No. 11 of Dibrugarh Municipal Board,

having a monthly rent of Rs.1,000/- per month.

8) As per the statements made in the plaint, it was projected that the

defendant No. 2 was the proprietor of defendant No. 1 firm had been occupying

the suit premises from 01.06.1994 and the defendants paid the monthly rent at

the rate of Rs.1,000/- per month to the plaintiff upto the month of October, 2004

vide rent receipt dated 02.11.2004 and since November, 2004, despite repeated

demands and personal calls they neglected to pay rent. The counter foils of the

first and last rent receipt for June 1994 and October, 2004 were filed along with

the plaint as plaintiff document No. 1 and 2 respectively. It was claimed that the

plaintiff had obtained due permission for raising multi storied construction on

three sides (east, west and south) of the suit premises and therefore, stated that

constructions were already raised on the western and southern side and they

were yet to start construction on the eastern side and therefore, the plaintiff

intended to raise construction on eastern side on the premises and also the suit

premises. The advocates’ notice for termination of tenancy w.e.f. 01.04.2005 and

ejectment notice dated 07.03.2005 was sent by registered post asking the

defendants to vacate and to deliver khas, vacant and peaceful possession of the

schedule premises within 31.03.2005 or that they would be liable for damages at

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the rate of Rs.100/- per diem since 01.04.2005 till evicted. In the plaint it was

claimed that the defendant No. 3 was not the tenant under the plaintiff and did

not pay any money to the plaintiff and the rent for the suit premises after

October, 2004 was always paid or defendant No. 2 for and on behalf of

defendant No. 1 against several money receipts by simultaneously putting his

signature on the counter-foils thereof. Apart from claiming the defendants No.1

and 2 to be defaulters since the month of November, 2004, the plaintiff also

claimed the suit premises for expansion of his business. A part of the plaintiff’s

money claim, being barred by limitation was waived and arrear rent, mense rent

for last three years i.e. for years 2005, 2006 and 2007 amounting to Rs.36,000/-

was claimed together with the prayer for eviction of the defendants, pendente

lite and future mense rent, cost and other reliefs.

9) The defendants contested the suit by filing their written statement. As

per the trial court record all pages of written statement except verification and

affidavit were signed by the defendant No. 2 and 3. The defendants took a plea

that late Motilal Achantani was the original tenant of the suit premises since the

year 1946 and on his death the tenancy devolved on his wife Smt. Rekha Devi

Achantani, the son of Sri Rakesh Kumar Achantani and a married daughter,

namely, Rita Lalwani. It was stated that rent for November, 2004 was paid on

02.12.2004 and the rent for the month of December, 2004 was paid on

03.01.2005 through his son Sri Ramesh Kumar Jalan by Sri Bomkesh Banerjee

the then Manager of the defendants and the rent for the month of January, 2005

was paid to Sri Nagina Rai, an employee of the plaintiff on 04.02.2005, who

collected the same from M/s. Triplex, the defendant No.1, but no rent receipt

was given on the plea that receipt book had exhausted. The defendants claimed

that rent for the month of February, 2005 was tendered on 03.02.2005 but the

plaintiff refused to accept the same and also denied to give rent receipt for the

month of November and December, 2004 and January, 2005. Thereafter, the

defendants deposited the rent for the month of February, 2005 in court by Misc.

(N.J.) Case No. 250/2005 and since then the defendants were depositing the rent

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in court. The defendants admitted serving notice dated 07.03.2005 to the

plaintiff through their Advocate and claimed that further rent were being

deposited before the rent controller and prayed for dismissal of the suit. Be it

stated that the defendants claimed to be depositing rent in court for two

separate tenanted premises together.

10) At the cost of repetition, it is mentioned that the defendant No.3 had

been impleaded by virtue of order dated 22.09.2010 passed by this Court in CRP

372/2010. However, as the defendant No.3 had signed the written statement

filed by the defendant No.2, no separate written statement was filed by her.

11) In course of trial, the learned trial court framed 6 issues, out of which

Issue No.1 was reframed at the time of writing judgment. The issues are:-

1) Whether the suit is maintainable in law and facts?

2) Whether there is cause of action for the suit?

3) Whether the defendants are defaulter in paying rents to the plaintiff in

accordance with the terms and conditions?

4) Whether the suit premises is required bonafide by the plaintiff for their

own business purpose including re-construction thereof?

5) Whether the plaintiff is entitled to relief as claimed for?

6) To what relief(s) the parties are entitled to?

The re-cast issue No.1 is whether the suit is maintainable in law and

facts including non- joinder of necessary issues?

12) The petitioner- plaintiff examined himself as PW-1 and one Sri Rajesh

Kumar Agarwal as PW-2. The defendants examined 7 DWs, namely, Rakesh

Kumar Achantani (DW-1), Gordhan Das Mordani (DW-2), Gulshan Budhwani

(DW-3), Rekha Devi Achantani (DW-4), Probin Chandra Saikia (DW-5), Milaram

Deori (DW-6) and Maheswar Gowal (DW-7).

CRP 520/2015 & CRP 526/15 Page 6 of 26

13) On issue No.(i), the learned trial court, relied on an Advocate’s notice

dated 07.03.2005 (Ext.131), sent on behalf of the defendants No.2 and 3,

claiming them to be tenants since the time of their predecessor-in- interest,

Motilal Achantani, claiming that they were paying rent regularly and, as such, it

was held that there is no question of inheriting the tenancy rights and no

question arose for joining the legal heirs of Late Motilal Achantani. The learned

trial court also relied on the evidence of Defendant No.3 (DW-4), where she

claimed that she was the proprietor of the Defendant No.1 firm and that her son

(Defendant No.2), was looking after the shop and paid rent to the plaintiff.

Having held that the defendant No.2 was paying rent for Defendant No.1 and the

defendant No.3 joined in the suit, claiming to be the proprietor of defendant No.1

firm, the defendant side is duly represented and therefore, the suit was held to

be neither hit by the principles of non- joinder of necessary parties and nor

appeared to be not maintainable under any law in force. It was also held that

under Order XXX CPC, the suit can be instituted in the name of the firm and, as

such, it was held that the suit was maintainable and not bad for non- joinder of

necessary parties.

14) In respect of issue No.(iii), by mentioning that the documents marked

as Ext.E, F and G are the register maintained against the slips issued to their

customers and the same was made by binding papers from different old books

and, as such, it was held that the said Ext. E, F and G were not the entries made

in the books of accounts in usual course of business and, as such, were

inadmissible as per Section 34 of the Evidence Act, 1872. The learned trial court

also disbelieved the case of defendants that enhanced rent was demanded, by

referring to the notice dated 07.03.2005 (Ext.131), by which the plaintiff was

asked to issue upto date rent receipts after the month of October, 2004 within 7

days from the date of receipt of the notice, failing which the rent would be

deposited before the Rent Controller, and by further referring that nothing was

stated in the notice about demand of enhanced rent or about tender of rent on

03.03.2005. Hence, it was held that the mandatory provision for depositing rent

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was not complied with before depositing rent in court and, as such, it was held

that the defendants were a defaulter in paying rent to the plaintiff.

15) On issue No.(iv), it was held that the requirement of the suit premises

by the plaintiff was not bona fide. On issue No.(ii), it was held that there was

cause of action for the suit. On issue No.(v) and (vi), it was held that the

defendants were liable to be evicted from the suit premises and it was further

held that the plaintiff was entitled to recover arrear rent of Rs.36,000/- together

with pendente lite and future rent till ejectment and it was also held that as there

was no counter-claim, the defendants were not entitled to any relief.

16) As stated earlier, while the defendants No.1 and 3 preferred an

appeal, which was numbered as TA No.4/2013, the defendant No.2 preferred a

separate appeal, which was numbered as TA No. 7/2013. The plaintiff filed his

cross objection on the issue of bona fide requirement.

17) Both the appeals were analogously heard and decided by the learned

Court of Civil Judge, Dibrugarh, by First Appellate judgment and decree dated

10.09.2015. The learned First Appellate Court framed the following points of

determination:-

i. Whether the decision of learned trial court in issue No.3 is just and

proper and in accordance with law?

ii. Whether the suit is maintainable in law and on facts including non-

joinder of necessary parties?

iii. Whether the cross objection is entitled to be allowed.

18) On the first point of determination No. (A), the learned first appellate

court independently analyzed the evidence of the parties, and it also applied the

ratio of various cases cited therein and arrived at an independent finding that the

learned trial court had rightly held that the defendants were defaulters in

payment of rent and the said finding was upheld.

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19) On point of determination No. (B), the learned first appellate court

discussed the evidence of PW-1, where he had stated that his father was the

original tenant since the year 1946 and that is why the tenancy had continued

since the time of his father. It was discussed that although the defendant No.3

got herself impleaded in the suit, but the married daughter, of Motilal Achantani,

namely, Rita Lalwani did not get herself impleaded. Having discussed the finding

of the learned trial Court, the learned First Appellate Court was not inclined to

concur with the decision by the learned trial court on the issue of non- joinder of

necessary parties firstly, on the ground that the tenancy was heritable and, as

such, on the death of the original tenant, all the legal heirs would inherit the said

right and they would step into the shoes of the original tenant by operation of

law and each of them assumed separate status as a tenant.

20) In this connection, the learned first appellate court had referred to the

definition of tenant as provided in Section 2(f) of the Assam Urban Areas Rent

Control Act, 1972, as per which – “Tenant means person by whom or on whose

behalf rent is payable for any house and includes every person who from time to

time derives title under a tenant”. In this context, the learned first appellate

court by considering the case of (i) Ranjit Kumar Choudhury Vs. Gopeesh

Chakravarty & Ors., (1996) 1 GLT 279, (ii) Sushanta Kar Vs. Ganesh Chakraborty,

AIR 2015 Gau 105, and (iii) Gian Devi Anand Vs. Jeevan Kumar & Ors., AIR 1985

SC 796, held that the suit is bad for non-joinder of necessary party and the point

was answered in favour of the defendants.

21) In respect of the Point of Determination No.(C), as to whether the

cross- objection is entitled to be allowed, it was held that the landlord had no

bona fide requirement for the suit premises.

22) At the outset, it would be pertinent to state that the Point of

Determination No.(A) and (C) are both concurrent finding of facts by both the

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learned courts below. Both the courts have concurrently held that the tenant was

a defaulter in payment of monthly rent to the landlord. Both Courts have also

concurrently held that the landlord had no bona fide requirement for the suit

premises. At the commencement of hearing, on a pointed query by this Court,

the learned Senior Counsels have fairly submitted that in so far as the issue of

bona fide requirement of suit premises is concerned, there is no serious

challenge on the said point. Therefore, this court would be discussing the point

of determination No. (A) and (B) as framed by the learned first appellate court.

23) The learned Senior Counsel for the petitioner has submitted that the

learned first appellate court had misdirected itself on facts and in law and there

being no evidence on record, held Smt. Rita Lalwani as a necessary party in the

suit. It is also submitted that the Defendant No.2, by filing his separate appeal,

being T.A. No. 7/2013, disproved that even he was one of the joint inheritors of

the tenanted premises, as it amounted to acknowledgement of the fact that his

mother, Smt. Rekha Devi Achantani (Defendant No.3) was the proprietor of the

Defendant No.1 firm. Hence, according to him, misdirection in appreciating the

evidence on record amounted to failure exercise jurisdiction vested in it by law as

well as exercise of jurisdiction with material irregularity and amounted to

jurisdictional error, which was required to be corrected in revision. In order to

support his contention, the learned Senior Counsel for the petitioner has referred

to the evidence of the defendants, pleadings and other materials filed by the

parties. It is submitted that the learned Trial Court had correctly appreciated the

evidence on record and had rightly held that the firm was a tenant and the suit

was maintainable under the provisions of Order XXX CPC and, as such, the

learned first appellate court committed error of jurisdiction by considering the

extraneous materials on record and failed to appreciate that the past tenancy, if

any, by Late Motilal Achantani was not sufficient to dislodge the evidence on

record which prove that the Defendant No.1 was a proprietorship concern of

Defendant No.3 and the tenancy was not inherited by Rita Lalwani from her

father, after his death, but this was a case where the Defendant No.3 was the

CRP 520/2015 & CRP 526/15 Page 10 of 26

owner of the firm and there was no question of any inheritance. Hence, the

impugned judgment was liable to be set aside and reversed.

24) Per contra, the learned Senior Counsel for the Respondents herein has

submitted that the issue of non- joinder was a very vital issue and it is too well

settled that the tenancy is inheritable, as such, there was no infirmity in the

judgment and decree passed by the learned first appellate court.

25) The Senior learned Counsel for the respondents has submitted that

under the provisions of Section 115 CPC, the revisional court has limited

jurisdiction. It is strongly argued that the revisional Court cannot correct

conclusion of law or fact where the issue of jurisdiction is not involved. It is also

submitted that the revisional jurisdiction is not similar to appellate jurisdiction. It

is also submitted that while exercising revisional jurisdiction, the High Court is

not authorized to interfere and correct even gross or palpable errors of

subordinate courts unless such error has any relation to jurisdictional errors. The

learned Senior Counsel for the respondents has placed reliance of the following

cases in support of his argument:-

i. Keshardeo Chamaria Vs. Radha Kissen Chamaria & Ors., AIR 1953 SC

23.

ii. D.L.F. Housing & Construction Company (P) Ltd. Vs. Sarup Singh &

Ors., (1063) 3 SCC 807.

iii. Sher Singh (Dead) by LRs. Vs. Joint Director of Consolidation & ors.,

(1978) 3 SCC 172.

26) The learned Senior counsel for the respondents has also submitted

that it is impermissible for the revisional court to re-appreciate the evidence on

record and arrive at a finding different from the finding recorded by the learned

first appellate court, which is the last court of facts, the learned Senior Counsel

for the respondents has relied on the case of Bhanwarlal Dugar & Ors. Vs.

Birdhichand Pannalal & Ors., (2010) 12 SCC 164.

CRP 520/2015 & CRP 526/15 Page 11 of 26

27) It is submitted that as Smt. Rita Lalwani is one of the legal heir of

Motilal Achantani, non-joinder of the said heir must be held to be fatal for the

maintainability of the suit. In respect of his submissions on the issue of non-

joinder of necessary parties, the learned Senior Counsel for the respondents has

placed reliance on the case of Kanakarathanammal Vs. Loganatha Mudaliar, AIR

1965 SC 271.

28) The learned Senior Counsel for the respondents has submitted that

the tenancy was inheritable and therefore, non-impleading of all the legal heirs of

a deceased tenant was fatal for the maintainability of the suit for eviction of a

tenant. In this regard, the learned Senior Counsel for the respondents has placed

reliance on the following cases:-

i) Gian Devi Anand Vs. Jeevan Kumar & Ors., (1985) 2 SCC 683. ii) Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup &

Anr., AIR 1990 SC 2053. iii) Richard Lee Vs. Girish Soni & Anr., (2017) 3 SCC 194. iv) On the death of the Sole Petitioner Suranjan Deb, his heirs Smt.

Sushma Rani Dey & Ors. Vs. Musstt. Hamida Khatun Choudhury & Ors., (1993) Suppl (1) GLR 113.

v) Ranjit Kr. Choudhury Vs. Gopeesh Chakravarty & Ors., 1996 (1) GLT 279.

vi) Sushanta Kar Vs. Ganesh Chakraborty through his LRs., AIR 2015 Gau 109.

29) Considered the submissions made by the learned Senior Counsels for

both sides and perused the materials on record. While the learned Senior

Counsel for the petitioner had filed a paper-book containing copy of various

documents including petition for impleading defendant No.3, order dated

22.09.2010 passed by this Court, evidence and cross-examination of DWs and

copy of exhibits, the learned Senior Counsel for the respondents had filed copy

of the evidence and cross-examination of PW.1 and cross-examination of DWs.

Also perused the ‘lower court record’ (LCR for short) in respect of TS No. 2/2008.

The parties are ad-idem that the records of TS No. 1/2008 is also similar to the

CRP 520/2015 & CRP 526/15 Page 12 of 26

record of TS No.2/2008 and, as such, the learned Senior Counsel for both sides

relied on the said LCR for the purpose of hearing of this two connected revision

petitions.

30) On appreciating the Point of determination No. (A) relating to the

issue of whether the respondents are defaulter in payment of monthly rent to the

petitioner/ landlord, it is seen that from the evidence on record, that none of the

defendant’s witnesses made any effort to prove the records of various Misc.(N.J.)

Case records, although many such records were called from the Rent Controller

and kept in record of the suit. Under the Assam Urban Areas Rent Control Act,

1972, rent can only be deposited in Court after the tenant offers monthly rent to

the landlord and only on refusal can such rent be deposited in Court under the

provisions of Section 5(4) thereof by filing process and by depositing process

fees so as to enable the court to serve notice to the landlord. There are catena of

judgments of this Court like Abdul Matin Choudhury Vs. Nilayananda Dutta Banik,

1997 (2) GLT 590, wherein it has been held that not only rent can be deposited

in court after complying with the provisions of Section 5(4) of the Assam Urban

Areas Rent Control Act, 1972 but the duty to pay rent subsists during the

pendency of the suit and appeal. Various other cases find reference in the first

appellate judgment. As no Misc. (N.J.) Case records are exhibited and proved,

this court has no hesitation to hold that the concurrent finding of facts that the

tenant had defaulted in paying monthly rent to the landlord needs no

interference.

31) Moreover, as per evidence of the DWs, there are two shops, so there

are two separate offer and refusal of rent, rent is separate, and although the

landlord recognizes Rakesh Kumar Achantani as the Proprietor of the firm M/s.

Triplex, as per version in cross examination of DW-4, she was the proprietor of

one shop and her son was the owner of the other shop, whereas, the DW-1

claims that both he and his mother Smt. Rekha Devi Achantani were the

proprietors of the firm M/s. Triplex as per Ext.D i.e. Misc. (N.J.) Case No.

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250/2005. Therefore, according to the opinion of this court, the rent could not

have been deposited by two persons claiming themselves to be the proprietor of

M/s. Triplex in a single non-judicial case for deposit of rent in court. However,

the same being not the finding by both the courts below, this court does not

want to disturb the concurrent finding with this additional finding against the

tenants.

32) Coming to the Point of Determination No. (B) as framed by the

learned First Appellate Court, i.e. whether the suit is maintainable in law and on

facts including non- joinder of necessary parties. As indicated above, the finding

by the learned first appellate court is that Rita Lalwani, the married daughter of

Motilal Achantani was a necessary party, required to be impleaded as one of the

defendants in the suit. According to this Court-

i. First of all, if the plea of the Defendant No.2, namely, Rakesh Kumar

Achantani that his sister Rita Lalwani inherited the estate left behind

by their father is at all acceptable, then the said inheritance must be

either under the provisions of the Indian Succession Act, 1925 or

under the provisions of the Hindu Succession Act, 1956.

1) As Late Motilal Achantani died on 29.06.2004 (as per statement

made by DW-1 in his cross examination). On his death, he left

his widow and two children as lineal descendents, the provisions

of Section 33 Indian Succession Act, 1925 would appear to apply

and the Defendant No.2, i.e. Rekha Devi Achantani would have

received one-third share and two-thirds of such inheritance

would go jointly to the lineal descendents, i.e. to Rakesh Kumar

Achantani (son) and Rekha Lalwani (daughter). Thus, joint

inheritance is provided for under section 33 of the Succession

Act, 1925, therefore, when the estate of Late Motilal Achantani is

found to be represented by one of his lineal descendents, it is

hard to accept that the estate left behind by Late Motilal

CRP 520/2015 & CRP 526/15 Page 14 of 26

Achantani was not sufficiently represented by Rakesh Kumar

Achantani, his son.

2) If the estate of Late Motilal Achantani had devolved on his heirs

under Hindu Succession Act, 1956, then for class-I heirs, the

provisions of Section 9 thereof is found to apply and, as such,

under Section 9, the order of succession among the heirs

specified in Schedule, those in class-I shall take simultaneously

and to the exclusion of all other heirs. Therefore, if the estate

devolves on the legal heirs of Late Motilal Achantani, then the

wife, son and daughter, all being heirs of Class-I, would take the

estate jointly and, as such, the estate left behind by Late Motilal

Achantani was sufficiently represented by two out of three heirs,

viz., wife and son.

3) At this stage, it would be relevant to refer to the provisions of

Explanation-VI of Section 11 CPC. It provides that “Where

persons litigate bona fide in respect of a public right or of a

private right claimed in common for themselves and others, all

persons interested in such right shall, for the purposes of this

section, be deemed to claim under the person so litigating.”

Therefore, when Rakesh Kumar Achantani (Defendant No.2) is

espousing the cause of his sister, Rita Lalwani, it can be deemed

that the right so agitated comes within the scope of Explanation-

VI of Section 11 CPC.

4) As an example, assuming that Smt. Rita Lalwani had jointly

inherited the tenancy, then she is also deemed to be aware that

her firm i.e. Defendant No.1 is litigating with her landlord. Yet

she has not come forward to get herself impleaded. Therefore,

under the provisions of Explanation-VI of Section 11 CPC, the

said Defendant No.2 is deemed to be litigating for Rita Lalwani.

For this proposition, this Court relies on the case of Surayya

Begum Vs. Mohd. Usman, (1991) 2 SCC 114 (para-9), where the

CRP 520/2015 & CRP 526/15 Page 15 of 26

appeal arising out of the claim of daughters of tenant was

dismissed.

5) Hence, non- impleading of Rita Lalwani cannot be said to be fatal

to the maintainability of the suit.

ii. The second view of this Court is that in case the tenancy is heritable,

then the legal heirs of the original tenant assume the status of

tenants- in- common, and not a separate individual tenancy right.

Therefore, under this view also, the two out of three legal heirs of

Late Motilal Achantani having contested the suit, it must be held that

the estate of Late Motilal Achantani was sufficiently represented by

them and, as such, the non- impleading of Rita Lalwani cannot be said

to be fatal to the maintainability of the suit.

iii. Now coming to the present case in hand, the defendant No.1 firm was

acknowledged as a tenant, both by the landlord and also by the

defendants. Therefore, notwithstanding the contradictory claim by the

defendants No.2 and 3 as to whether the Defendant No.2 was its

proprietor or the defendant No.3 was its proprietor, as per plaintiff

Ext.1 to Ext.125, the tenant was the firm M/s. Triplex and the

defendant No.2 was merely a payer of rent as its proprietor. Ext. A,

A(1) to Ext.A(59), Ex.B, Ext.C, Ext.D, Ext.X to Ext.Z and Ext.A(1) to

Ext.E(1), all confirm this position that M/s. Triplex was the tenant.

Therefore, the said firm, being a going concern, there is no way to

accept that Motilal Achantani, having died on 29.06.2004, was the

tenant on 02.01.2008, when the suit was filed by the petitioner-

plaintiff. A firm could have been sued in its name as per the provisions

of Order XXX Rule 10 CPC.

iv. While Defendant No.2 claimed that Rita Lalwani was one of the legal

heir of Motilal Achantani, and that he along with his sister and his

mother – Rekha Devi Achantani had inherited the tenancy through

their predecessor- in- interest Late Motilal Achantani, his mother, the

defendant No.3 took a complete change in her stand and proved

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documents like Certificate of Registration (Ext.A), Trade Licence

(Ext.B), Notice from Assistant Labour Commissioner (Ext.C), Notice

from Labour Inspector (Ext.D), LIC Premium Receipt (Ext.E to Ext.I),

Income Tax payment challans, acknowledgements, intimation, returns,

etc. (Ext.J to Ext.W), Copy of NJ Case challans [Ext.X to Ext.Z and

Ext.A(1) to E(1)] to establish that she was the proprietor of M/s.

Triplex since the year 1983. She claimed that she had established the

firm through her Stridhan before the birth of Defendant No.2 and that

through the tenancy continued since the time of her husband, but the

suit premises was taken by her and her deceased husband from the

father of the plaintiff and at that time, the plaintiff was a school- going

boy. She claimed that rent was duly being deposited in the Court

through various N.J. Case challans. She claimed that she and her son

were depositing rent in court through SBI. However, in her cross-

examination, Defendant No.3 had stated that her husband was the

proprietor of defendant No.1 firm and after his death, she was the

proprietor of the said firm. She had also stated that she did not realize

that rent receipts were being issued in the name of her son. She had

also stated in her cross examination that her son i.e. the defendant

No.2 was the proprietor of another shop in the name of M/s. Triplex in

the same market, but she claimed to not know whether the rent

receipts for the two shops were issued separately or not. She also

admitted that she never went to pay rent to the landlord. Moreover, in

his cross- examination, the Defendant No.1 (DW-1) asserted that he

had the power to manage the business and take decision. He had also

stated that “it is not a fact that while alive, his father was the

proprietor of M/s. Triplex”. He denied the suggestion that from

01.06.1994, he was paying rent to the plaintiff as proprietor of

Defendant No.1 firm. He admitted that there were two shops under

his possession and he paid and received rent receipts for two shops

separately and also admitted that the books Ext.E to G were not his

CRP 520/2015 & CRP 526/15 Page 17 of 26

cash book. He admitted that in Ext.D petition dated 11.03.2005 for

depositing rent for the month of February, 2005 vide Misc. (N.J.) Case

No.250/2005, it was mentioned that Defendants No.2 and 3 were

proprietor of M/s. Triplex and that by the same, rent for two premises

were deposited. He also admitted that the written statement contained

signatures of him and defendant No.3. PW-1 also admitted that it was

stated in his Evidence- on- affidavit that “Late Motilal Achantani was

the proprietor of defendant No.1 during his lifetime and after his death

his son and wife became the joint owners of the defendant No.1.”

Therefore, -

1) As per the evidence of DW-4 i.e. Defendant No.3, she was the

proprietor of the suit premises described in the Schedule of this

suit i.e. TS No.2/2008. Although her evidence cannot be

accepted, as it is beyond pleadings, but from the contents of

Ext.D i.e. Misc. (N.J.) Case No.250/2005, both the defendant

No.2 and Defendant No.3 were the proprietor of M/s. Triplex.

There are two different shops in the name of M/s. Triplex. While

Defendant No.3 claims to be the proprietress of the suit shop, as

DW-4, she claims that the defendant No.2 was the proprietor of

the other shop. The defendant No.3 proved Certificate of

Registration of shop, Trade Licence, Income Tax records showing

herself as proprietor of Defendant No.1 firm. Although her

evidence has no force being contrary to her pleadings, but the

said documents are sufficient to disbelieve the plea taken by the

defendant No.2 that his father Motilal Achantani was the tenant

of the landlord and that on his death, his sister had stepped into

the shoes of his father as a co-tenant. A person who is dead on

29.06.2004, i.e. way before 02.01.2008, the date when the suit

was filed, cannot be considered as a tenant as no rent could

have been validly paid on behalf of a dead person. Thus, Rita

CRP 520/2015 & CRP 526/15 Page 18 of 26

Lalwani cannot be said to be a proper or necessary party in the

suit.

2) The contents of Ext.D proved that there were two shops and rent

was paid separately for the two shops to the plaintiff- landlord

and that the defendant No.2 and 3 were both referred as

proprietor of M/s. Triplex, therefore, the stand of the defendant

No.3 in her cross examination that while she was the proprietress

of one shop, her son i.e. the defendant No.2 was the proprietor

of the other shop appears to be duly proved. In light of such

evidence, it is disproved that Rita Lalwani was either a proper

and/or a necessary party in the suit.

3) The plea of the defendant No.2 that his sister also inherited the

tenancy as legal heir of her father stands disproved by Ext.D and

rent deposit challans Ext.A(1) to A(59), which were all deposited

in the name of the defendant No.2. The trial court records

received reveals that the records of 41 numbers of Misc. (N.J.)

Cases (i.e. rent deposit cases) were called, but not proved by the

defendants. In the cause title of these cases, which is found to

be similar to the one marked as Ext.D, there are three

petitioners, viz., (1) M/s. Triplex, (2) Smt. Rekha Devi Achantani,

and (3) Sri Rakesh Kumar Achantani. The defendants claimed

that the defendants No.2 and 3 were proprietors of M/s. Triplex.

Except for Ext.D, no other Misc. (N.J.) Cases can be read in

evidence as those were not the exhibited documents, but these

documents compel this court to take adverse presumption under

section 114 Illustration (g) of the Evidence Act, 1872 that had

those Misc. (N.J.) Case records been proved, the same would

have gone against the plea by the defendant No.2 that his sister

Smt. Rita Lalwani had inherited the tenancy. It must be kept in

mind that in all documents exhibited by the defendant No.3, she

had proved that she was proprietress of the defendant No.1 firm.

CRP 520/2015 & CRP 526/15 Page 19 of 26

Such evidence has not been discredited by any other evidence on

record from the defendants’ side.

v. If a tenant dies, there is no doubt that the tenancy is inherited by all

his legal heirs, but notwithstanding that in the present case this

inheritance of suit premises was not proved, from the Ext. (A) to Ext.

Ext.Z and Ext.A(1) to E(1), it is disproved that Rita Lalwani derived

any benefit from the defendant No.1 shop as one of its co-owners. At

least, the DW-1 did not make any effort to prove through his books of

accounts that his sister ever got any share in profit or loss from the

business of defendant No.1. Therefore, there is no evidence that the

said Smt. Rita Lalwani stepped into the shoes of the original tenant for

two reasons, firstly, from the evidence of Smt. Rekha Devi Achantani

(DW-4), it is disproved that Smt. Rita Lalwani stepped into the shoes

of the original tenant, and secondly, it also disproved that even the

said Defendant No.3 inherited the tenancy through her husband after

his death.

vi. Therefore, when it is not certain as to who is carrying the business in

light of contradictory evidence from the defendants, because while on

one hand the Defendant No.2 (DW-1) claims that he, his mother and

sister had inherited the tenancy from their father and on the other

hand, the defendant No.3 makes endeavour to prove that she was the

sole proprietor, having started the business from her ‘stridhan’, the

reliance of the learned trial court on the provisions of Order XXX Rule

10 CPC where it is prescribed that a suit against the firm is

maintainable as it can be sued in the name of the firm appears is held

to be the correct approach.

vii. Moreover, as per Plaintiff Ext 1 to Ext.125, which are rent receipts

bearing dates from 05.07.1994 to 02.11.2004, the name of the tenant

is stated as “Triplex, Proprietor Rakesh Kumar Achantani”. The

Treasury challans at Ext.A(1) to A(59), which were exhibited by

Rakesh Kumar Achantani as DW-1 reflects that M/s. Triplex Dry

CRP 520/2015 & CRP 526/15 Page 20 of 26

Cleaner, Dibrugarh, was entered in the column 2 for “Name and

Address of the person on which behalf money is paid” in all except

one for the month of March, 2007, June, 2007, as per paper-book filed

by the petitioner on 04.05.2017, which bear the name of R.K.

Achantani. The petition of Misc. (N.J.) Case No. 250/2005 (Ext.D)

reflects the names of (1) M/s. Triplex Dry Cleaner, (2) Smt. Rekha

Devi Achantani and (3) Sri Rakesh Kumar Achantani as tenants of the

petitioner. Therefore, in none of the exhibits proved by the DW-1,

namely, Rakesh Kumar Achantani show that Motilal Achantani was the

tenant on the date when the suit was filed by the petitioner.

Therefore, going by the definition of ‘tenant’ as given above, there

appears to be no material to show that Motilal Achantani was a tenant

as on the date of institution of the suit so as to enable Smt. Rita

Lalwani to derive title as a tenant from her father. It can only be said

that the firm M/s. Triplex Dry Cleaner was the tenant and that Smt.

Rekha Devi Achantani and Sri Rakesh Kumar Achantani claimed to be

its proprietors. Therefore, it appears that the learned Court of Munsiff

No.2, Dibrugarh was correct in its finding that the suit filed against the

firm was maintainable under Order XXX Rule 10 CPC.

viii. The said Rita Lalwani did not assert her right of inheritance through

Late Motilal Achantani against the petitioner herein. Her alleged right

is not enforceable against the petitioner, because for obtaining the

declaratory relief as to her right against the petitioner- plaintiff and to

be declared as a tenant, the period of limitation of three years under

Article 58 of Schedule to the Limitation Act, 1963 would start to run

from the date of death of her father or at least from the end of the

month of June, 2004, being the month in which Late Motilal Achantani

died or from the extended time from 02.01.2008, when the plaintiff

had filed the suit and did not recognize either Smt. Rekha Devi

Achantani (the defendant No.3) or Late Motilal Achantani as his tenant

or the said Smt. Rita Lalwani as his tenant. This is required to be

CRP 520/2015 & CRP 526/15 Page 21 of 26

addressed because of two reasons, firstly, there is no evidence on

record that Motilal Achantani was the tenant on the date he died, and

secondly, Rita Lalwani cannot be deemed to be a tenant of the

petitioner- plaintiff even after more than three years from the death of

Motilal Achantani. It is clarified that this observation in not in respect

to her right qua the defendants No.2 and 3, but only limited with

respect to the petitioner- plaintiff. Therefore, the suit cannot be held

to be bad for non- joinder of Smt. Rita Lalwani.

ix. Assuming that Motilal Achantani was a tenant on 29.06.2004, when he

died, even then as his estate is found to be represented two out of

three legal heirs in the suit, the estate must be held to be sufficiently

represented in the suit and the omission to array Rita Lalwani, one of

the deceased’s legal heirs, who had never asserted her right over the

shop or participated in its management and in sharing profits and loss,

cannot be permitted to defeat the suit filed by the landlord on the

ground of non- joinder of necessary parties. In absence of any proof

to the contrary, it must be deemed by necessary implication that Smt.

Rita Lalwani had surrendered her right, if there be any, in favour of

the defendants No.2 and 3.

x. The finding on this point as to whether the suit was bad for non-

joinder of Smt. Rita Lalwani as a proper and necessary party, it is held

that the evidence of Defendant No.3 (DW-4) and documents proved

by her, being Ext. (A) to Ext. Ext.Z and Ext.A(1) to E(1), the

Advocate’s notice (Plaintiff Ext.131) and Rent deposit challans

[Ext.A(1) to A(49) proved by DW-1] all disprove the stand of the

Defendant No.2 (DW-1) that Rita Lalwani also had stepped into the

shoes of the original tenant, Motilal Achantani, after his death on

29.06.2004. Therefore, Smt. Rita Lalwani is neither a necessary nor a

proper party in the suit and the suit is not bad for her non-joinder as a

co-defendant in the suit.

CRP 520/2015 & CRP 526/15 Page 22 of 26

xi. The cases of (i) Ranjit Kumar Choudhury Vs. Gopeesh Chakravarty &

Ors., (1996) 1 GLT 279, (ii) Sushanta Kar Vs. Ganesh Chakraborty,

AIR 2015 Gau 105, and (iii) Gian Devi Anand Vs. Jeevan Kumar &

Ors., AIR 1985 SC 796, upon which the learned first appellate court

are distinguishable on the facts of the present case in hand because

the defendants had not led any evidence to show how Motilal

Achantani remained to be a tenant as on the date of filing of the suit,

when defendants’ evidence on record does not support the said

contention of the Defendant No.2 that Motilal Achantani was the

tenant and Rita Lalwani was required to be joined as defendants in the

suit, which plea remains unsupported by the defendants No.1 and 3.

xii. As stated herein before, in TA No. 7/2013 Rakesh Kumar Achantani,

the Defendant No.2 abandoned his claim as Proprietor of M/s. Triplex

and acknowledged his mother, i.e. Defendant No.3 as proprietor of

Defendant No.1 firm, it establishes two things, that the tenancy was in

respect of the Firm, M/s. Triplex, and secondly, Smt. Rekha Devi

Achantani (Defendant) No.3 was the proprietor thereof, as would be

evident from the cause title thereof. So no question arose about

Motilal Lalwani being the tenant of the petitioner and, as such, non-

impleading of Rita Lalwani as one of the defendants cannot be held to

be fatal for maintainability of the suit. Therefore, having held that this

is not a case where the tenancy was inherited, the cases of (i)

Keshardeo Chamaria (supra), (ii) D.L.F. Housing & Construction

Company (P) Ltd. (supra), (iii) Sher Singh (Dead) by LRs., (iv)

Bhanwarlal Dugar & Ors.(supra), (v) Kanakarathanammal (supra), (vi)

Gian Devi Anand (supra), (vii) Textile Association (India) Bombay Unit

(supra), (viii) Richard Lee (supra), (ix) Suranjan Deb, by LRs (supra),

(x) Ranjit Kr. Choudhury (supra), and (xi) Sushanta Kar (supra), which

were cited by the learned Senior Counsel for the respondents are

found to be distinguishable on facts and has no application in this case

in hand.

CRP 520/2015 & CRP 526/15 Page 23 of 26

xiii. The Constitution Bench of the Hon’ble Supreme Court of India, in the

case of N.K. Mohd. Sulaiman Sahib Vs. N.C. Mohd. Ismail Saheb, AIR

1966 SC 792 (para 14) has held that “…Where however on account of

a bona fide error, the plaintiff seeking relief institutes his suit against a

person who is not representing the estate of a deceased person

against whom the plaintiff has a claim either at all or at even partially,

in the absence of fraud or collusion or other ground which taint a

decree, a decree passed against the persons impleaded as heirs binds

the estate, even though other persons interested in the estate are not

brought on the record. This principle applies to all parties irrespective

of their religious persuasion.” Notwithstanding that the categorical

finding by this Court are (i) the suit against the Defendant No.1 firm

was maintainable, and (ii) the proprietor of Defendant No.1 was the

defendant No.2, therefore, there was no inheritance of Late Motilal

Achantani involved, but assuming that the said estate was left behind

by Late Motilal Achantani, yet, the defendants are all sufficiently

representing the said deceased and as per the ratio of the said case,

non- impleading of Smt. Rita Lalwani is not fatal to the maintainability

of the suit in reference.

xiv. Hence, the cumulative result of the discussions above, the finding of

the learned First Appellate Court on Point of Determination No.(B) is

not found to be sustainable and therefore, the said finding is set aside

and the finding of the learned Trial Court on Issue No.(3) framed in

course of trial is restored.

33) There is one more aspect of the matter. As per point of determination

No. (A), as framed by the learned first appellate court, the Defendant has been

held to be a defaulter. This is a concurrent finding of fact. Thus not only the

Defendants No.1 and 3, but also the Defendant No.1 firm has been held to be a

defaulter. Therefore, even if the said Smt. Rita Lalwani is impleaded in the suit,

the said finding of defaulter cannot be wished away as admittedly she never

tendered any rent to the plaintiff- landlord at any point of time.

CRP 520/2015 & CRP 526/15 Page 24 of 26

34) As a result, the first appellate court is found to have exercised

jurisdiction with material irregularity by incorrectly appreciating the facts and law.

It also failed to exercise jurisdiction vested in it by law by omitting to appreciate

that the specific pleading of the plaintiff in the suit was that the plaintiff

recognized only the defendant No.2 as proprietor of defendant No.1 shop. But

defendant No.3 impleaded herself in the suit, signed and filed written statement

and in evidence, took a plea that she was the proprietress of defendant No.1

shop. The defendant No.2, by filing TS No. 7/2013 separately, by arraying

defendants No.1 and 3 as proforma respondents, established that defendant

No.3 was the proprietor of defendant No.1 firm. On the other hand, as suit was

also filed by arraying the tenant firm as defendant No.1, the suit was

maintainable under the provisions of Order XXX Rule 10 CPC. Thus, to sum up,

the non- joinder of Smt. Rita Lalwani is not fatal to the suit and the plaintiff

cannot be non-suited on the ground of non- joinder of Smt. Rita Lalwani as one

of the defendants in the suit. Late Motilal Achantani died on 29.06.2004, but

since 01.06.2004, the plaintiff had been treating Rakesh Kumar Achantani as the

proprietor of defendant No.1 firm. Yet by ignoring all these, the learned first

appellate court is found to have substituted its view over the judgment passed by

the learned trial court, which is not sustainable by any evidence on record. The

learned first appellate court failed to exercise jurisdiction to appreciate exhibits

filed by defendant No.3, which though contrary to the pleadings, is sufficient to

disprove the plea of the defendant No.2 that Motilal Achantani was the original

tenant and that the tenancy was inherited by the defendants No.2, 3 and Smt.

Rita Lalwani.

35) Therefore, in view of the discussions above, the TS No.2/2008 is found

to be maintainable and the suit is not hit by non- joinder of Smt. Rita Lalwani.

The defendants No.1, 2 and 3 in TS No. 2/2008 are liable to be evicted on the

ground that they are defaulter in payment of monthly rent to the petitioner-

plaintiff for the period commencing from October, 2004. However, as rent upto

CRP 520/2015 & CRP 526/15 Page 25 of 26

31.12.2004 had become barred by limitation, the decree for payment of rent

from 01.01.2005 till 31.12.2007 amounting to Rs.36,000/- as well as pendente

lite and future rent at the rate of Rs.1,000/- per month as passed by the learned

Court of Munsiff No.2, Dibrugarh, is restored. The decree for eviction of the

defendants and for recovery of khas and vacant possession of the suit premises

described in Schedule appended to the plaint, as passed by the said learned trial

court is also restored.

36) Consequently, the first appellate judgment and decree dated

10.09.2015 passed by the learned Civil Judge, Dibrugarh in TA No. 4/2013 and

TA No. 7/2013 are both set aside and the judgment and decree passed by the

learned Court of Munsiff No.2, Dibrugarh, in TS No. 2/2008 is restored.

37) As the Defendant have stated that their firm is in business in the suit

premises since the year 1946, this court is inclined to give time till 31.12.2017

from today to vacate the suit premises, subject to the following conditions:

i. The defendants shall all bind themselves and shall also deposit the

decreetal sum as decreed before the learned Court Trial Court within a

period of one month from today;

ii. Within one month from today, the defendants shall submit an

unconditional undertaking in writing before the learned Trial Court, i.e.

Court of Munsiff No.2, Dibrugarh, binding themselves to –

1) vacate the suit premises on or before 31.12.2017;

2) not to sub-let or part with the possession of the suit premises of

any part thereof to any other third party and/or to hand over the

suit premises to anyone other than any the petitioner- plaintiff;

3) not to cause any nuisance or any other disturbance and/or cause

any damage to the suit premises in the meantime till they vacate

the same on or before 31.12.2017.

iii. Taking judicial notice of the sky-high market rent now prevailing, and

as laid down by the Hon’ble Apex Court in the case of Rattan Arya V.

CRP 520/2015 & CRP 526/15 Page 26 of 26

State of Tamil Nadu, AIR 1986 SC 1444: (1986) 3 SCC 385, in the said

undertaking, this Court also directs that the Defendants shall also bind

themselves to henceforth pay monthly rent of Rs.4,000/- per month

every month to the Petitioner- Plaintiff, which shall not constitute any

further tenancy or create any right whatsoever in favour of any of the

defendants.

38) It is made clear that if any of the defendants does not give an

undertaking to bind themselves on any of the above conditions mentioned in

paragraph- 37 (i), (ii) and (iii) above, or in the event if any of those conditions

are violated or not complied with, the petitioner- Plaintiff shall become entitled to

enforce the decree even prior to 31.12.2017.

39) This revision stands allowed. The parties are left to bear their own

cost all throughout.

40) Let the LCR be returned back.

JUDGE

Mkumar.