HONOURABLE SRI JUSTICE G. CHANDRAIAH SECOND APPEAL No. 771 OF 2014 DATED 14th November, 2014.
BETWEEN S.A. Muneer …….Appellant And Sri Prakashchand Sowear and anr …Respondents.
HONOURABLE SRI JUSTICE G. CHANDRAIAH SECOND APPEAL No. 771 OF 2014
JUDGMENT:
This Second Appeal is preferred aggrieved by the judgment and decree dated 07.07.2014 passed in A.S.No.125 of 2011 on the file of the learned IV Additional District Judge, Visakhapatnam, confirming the judgment and decree dated 04.07.2011 passed in O.S.No.2291 of 2007 on the file of the learned Principal Junior Civil Judge, Visakhapatnam.
Briefly stated the facts of the case are as follows: The appellant herein is the defendant before the trial Court. The respondents-plaintiffs filed the suit being O.S.No.2291 of 2007 seeking eviction of the appellant from the suit schedule property. It was averred in the suit plaint that the suit schedule property which is a Hindu undivided family property belonged to the first respondent and his two sons and the said property was let out to the appellant under an unregistered lease agreement dated 23.08.1989 for a period of 11 months commencing from 23.08.1989 on a monthly rent of Rs.1500/-. Ever since then, the appellant is carrying on tailoring business in the suit schedule property. Even after expiry of lease period, on his request, the appellant was continued in the leased out premises. Subsequently in the month of December, 2006, as the respondents being in need of the suit schedule premises asked the appellant to vacate and handover the possession of the suit schedule property by paying arrears of rent. When the appellant did not vacate the premises, the respondents got issued legal notice dated 28.10.2007 to the appellant demanding him to vacate the premises and hand over the same by 30.11.2007. The appellant sent demand draft indicating the rent for the month of October, 2007 along with reply dated 08.10.2007 denying the averments made by the respondents. Hence, the suit.
The appellant contested the suit by filing written statement wherein he denied all the allegations of the respondents and specifically averring that the suit is not maintainable as it is bad for non-joinder of necessary properties. It was the case of the appellant that since the suit schedule property is an undivided joint family property, the first respondent and his son, without showing another co-sharer, who is another son of the first respondent, as one of the parties filed the suit.
Based on the above pleadings, the trial Court framed the following issues for settlement:
1. Whether the suit is bad for non-joinder of the necessary parties. ?
2. Whether the plaintiff is entitled for relief of eviction of the defendant from the schedule premises as prayed for ?
3. To what relief ?
In order to prove their claims, the first respondent was examined as P.W.1 and second respondent was examined as P.W.2 and got marked Exs,A,1 to A.8 on their behalf. On behalf of the appellant, he himself was examined as D.W.1 and two other witnesses as D.Ws.2 and 3 and got marked Exs.B.1 and B.2.
The trial Court on a meticulous consideration of the evidence brought on record, held on Issue No.1 that suit is maintainable in view of the decisions of the Apex Court in Sri Ram Pasricha Vs. Jagannath (AIR 1976 SC 2335) and this Court in Neelam Williams Vs,. Mohammed Iqbal Pasha { 2010 (5) ALT 758}. Following the ratio laid down in the aforesaid decisions, the trial Court decreed the suit in favour of the respondents herein directing the appellant to vacate the suit schedule premises and handover the physical possession to the respondents within two months.
Aggrieved thereby, the appellant carried the matter in appeal being A.S.No.125 of 2011 to the Court of the learned IV Additional District Judge, Visakhapatnam.
The lower appellate Court on a consideration of the entire material on record, while conquering with the findings of the trial Court, dismissed the appeal.
Being not satisfied with the same, the appellant-defendant preferred the present Second Appeal.
In similar lines to the substantial questions of law raised in the memorandum of grounds of Second Appeal, learned Counsel for the appellant mainly contended that when one of the co-sharers of a Hindu undivided joint family property was not made as a party, the suit instituted by them seeking eviction is not maintainable inasmuch as the same is barred by non-joinder of necessary party.
Before adverting to the contentions of the learned Counsel, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, it is to be seen that as to whether any substantial questions of law raised by the learned Counsel for the appellant in the Memorandum of Grounds need consideration and warrant any interference by this Court in this second appeal. Time and again, the Supreme Court held that this Court is entitled to exercise its power under Section 100 CPC only when a substantial question of law arises in a second appeal for adjudication but not otherwise Keeping in mind the law laid down by the Supreme Court Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673, I shall now proceed to examine the pleadings and evidence adduced by both the parties as well as the Judgments and Decrees of the Courts below so as to see whether the findings recorded by them are justified in law and on facts.
It is admitted fact without there being any dispute that the suit schedule premises was let out to the appellant under an unregistered lease deed on a monthly rent of Rs.1500/- for a period of 11 months. With reference to the contention advanced by the learned Counsel for the appellant, both the Courts below concurrently held following the decision of the Apex Court in Sri Ram Pasricha Vs. Jagannath supra that the suit is maintainable. In the said decision, the Apex Court observed that a single owner can maintain the suit without impleading the other co- owners merely because a co-owner is also equal to a sole owner of the property. Further, a learned single Judge of this court in Neelam Williams Vs. Mohammed Iqbal Pasha supra held that the objection as to the maintainability of the suit for eviction in the absence of one of the owners also can not be taken as a sustainable objection since the other owners always can maintain action for eviction for the benefit of such co-owner or co-sharer who may not be available for the present. In view of the settled law as discussed hereinabove, the very objection of learned Counsel for the appellant that the suit has to be dismissed for non-joinder of the necessary parties merits no consideration.
In as much as both the Courts below concurrently and rightly held that the appellant/defendant failed to prove his case and that the quit notice issued by the respondents/plaintiffs is true, valid and binding upon the appellant/defendant, it is not necessary for this Court to embark upon the maintainability of the suit instituted for eviction of the appellant from the suit schedule property.
For the foregoing discussion and as no other ground is urged, I do not see any question of law much, less a substantial question of law involved in the Second Appeal warranting interference with the judgments and decrees of the Courts below.
In the result, the Second Appeal is liable to be dismissed and accordingly dismissed. Defendant is granted four months’ time from the date of receipt of a copy of this Judgment to vacate and hand over the vacant physical possession of the suit schedule premises.
At the fag end of the matter, learned Counsel for the respondents submitted that consequent upon decreeing the suit, the respondents have filed EP for execution of the judgment and decree in the suit and therefore the appellant may be directed to file an affidavit for vacating the premises within four months as was directed by this Court supra. Considering the said contention, I deem it appropriate to direct the appellant to file an affidavit before the trial Court in EP proceedings stating that he would vacate the suit premises within four months by paying all the arrears, if any, in due to the respondents.
Miscellaneous petitions pending consideration if any in the Second Appeal shall stand closed in consequence. There shall be no order as to costs.
JUSTICE G. CHANDRAIAH DATED 14th November, 2014. Msnrx