JUDGMENT S.U. Khan, J.
1. Mirza Qazim Raza Beg, Mirza Asad Raza Beg, Mirza Ale Raza Beg petitioners in the first writ petition and respondents No. 3 to 5 in the second writ petition are the landlords.
2. Property in dispute is a house bearing No. 28 (old) 242 (new) situate at Rani Mandi, Allahabad.
3. Ali Kabeer was the original tenant on behalf of the aforesaid landlords to whom the house in dispute was let out in 1967. Landlords filed suit for ejectment (Suit No. 53 of 1970). When the suit was filed original tenant Ali Kabeer had died. In the suit only two of his heirs, i.e., Col. Wajahat Kabeer and Zeenat Kabeer were made defendants. They are respondents No. 6 and 7 in the second writ petition. Smt. Nazeer Fatima the sole petitioner in the second writ petition and sole contesting respondent (respondent No. 2) in the first writ petition is also daughter of original tenant Ali Kabeer. Ali Kabeer left behind several heirs including Col. Wajahat Kabeer, Zeenat Kabeer, Nazeer Fatima and Nazar Fatima.
4. Aforesaid suit for eviction was decreed by J.S.C.C. on 16.11.1973. Revision filed against the same was also dismissed. Thereafter execution application being Execution Case No. 257 of 1975 was filed for execution of decree for eviction. In the year 1975, Smt. Nazeer Fatima and one of her sister Smt. Nazar Fatima filed objections in the said execution. According to the said objections, they were also the tenants and they could not be evicted, as they had not been impleaded in the suit. Apart from the said objections, Nazeer Fatima and Nazar Fatima also filed a suit seeking declaration that decree of eviction dated 16.11.1973, passed in Suit No. 53 of 1970 was ineffective against Nazar Fatima and Nazeer Fatima (Nazar Fatima died and her heirs were not substituted in the suit). Application of Nazeer Fatima in execution case was allowed on 3.7,1976. Against the said order Civil Revision No. 350 of 1976 was filed by the landlords, which was dismissed on 31.5.1979.
5. Suit No. 160 of 1974 filed by Nazeer Fatima was dismissed on 20/30.8.1983 by Additional Civil Judge, Allahabad. In the judgment, earlier order dated 3.7.1976, allowing the objections of Nazeer Fatima in execution was thoroughly discussed and it was held that the said order was without Jurisdiction as objections were not maintainable under Order XXI, Rule 97, C.P.C. (At that time the view of the Courts was that a stranger could not file any objection in execution unless he was dispossessed. The Supreme Court for the first time in 1997 in B. Chaudhary v. R.D. Jaiswal , held otherwise). Against the judgment and decree dated 20/30.8.1983, dismissing the suit Nazeer Fatima filed Civil Appeal No. 723 of 1983. In the appeal she filed an application for withdrawing the suit under Order XXIII, Rule 1, C.P.C. Through order dated 30.10.1986, said application was rejected. Similar application was also rejected on 15.12.1986. Third application for the same relief was filed by Nazeer Fatima in her Appeal No. 723 of 1983. IVth Additional District Judge, Allahabad, allowed the said application on 7.1.1987 and permitted her to withdraw the suit. Said order is under challenge by the landlords through the first writ petition.
6. Meanwhile after dismissal of the suit filed by Nazeer Fatima fresh proceeding for execution had been initiated by the landlord. In the said proceeding Nazeer Fatima again raised objections that she could not be evicted. Her claim was rejected by J.S.C.C. on 3.9.1986. Against the said order Smt. Nazeer Fatima filed Civil Revision No. 329 of 1986. VIth Additional District Judge, Allahabad, through judgment and order dated 17.4.1989, dismissed the revision. The said order is under challenge by Nazeer Fatima through second writ petition.
7. It has been held by the Supreme Court in Harish Tandon v. A.D.M. and A.C. Juker v. K.P. Mantri , that after the death of tenant his heirs inherit the tenancy jointly and order passed against one joint tenant is binding upon all the other Joint tenants. In view of this it cannot be said that decree for eviction is not binding against Nazeer Fatima or any other legal representative of original tenant who was not impleaded in the suit.
8. As far as withdrawal of suit under Order XXIII, Rule 1, C.P.C. in appeal in concerned, a plaintiff whose suit has been dismissed cannot be permitted to withdraw the suit in appeal if some finding on merit has been recorded in favour of the tenant, vide Executive Officer A. Temple v. R.S. Moorthy and K.S. Bhoopathy v. Kokila AIR 2000 SC 2132.
9. In this case on 4.5.2006 the following order was passed on the order sheet:
Arguments of learned Counsel for both the parties are substantially over. However argument in respect of subsequent developments which have taken place recently pertaining to dispossession or abandonment of possession of a portion of the accommodation in dispute and payment or non-payment of electricity dues etc are not complete. Sri M.A. Qadeer learned Counsel for occupants/ tenants wants two days time to file affidavits in reply to the affidavits filed by landlord.
Put up on Tuesday the 9.5.2006.
10. Thereafter on two or three dates learned Counsel for the tenant did not appear ultimately judgment was reserved on" 16.5.2006, by the following order on the order sheet:
Arguments of learned Counsel for both the parties had already been heard on 4.5.2004. On one or two minor points some clarification was required hence for the said purpose the case was listed on 9.5.2006, 10.5.2006 and today. Learned Counsel for the landlord is present. Learned Counsel for the tenant is not present.
As the arguments have already been heard on 4.5.2006 hence judgment is reserved.
11. I do not propose to decide the question of dispossession or abandonment of possession of ground floor accommodation or part thereof. Similarly I do not consider it appropriate to decide the question of electricity dues in these writ petitions as the said matter is wholly foreign to the scope of these writ petitions.
12. Accordingly first writ petition is allowed. Order dated 7.1.1987. passed in Appeal No. 723 of 1983 by IVth Additional District Judge, Allahabad, dismissing the suit (O.S. No. 160 of 1974) as withdrawn is set aside.
13. Second writ petition is dismissed.
14. With effect from today till actual vacation in execution proceedings tenants particularly Nazeer Fatima shall be liable to pay rent/damages for use and occupation at the rate of Rs. 1,000 per month.