1. Heard learned counsel for the revision-applicant.
2. The present revision under Section 25 of Provincial Small Causes Courts Act is directed against the order dated 5.12.2020 passed by Additional District Judge/Special Judge (Prevention of Corruption Act), Court No. 5, Gorakhpur in S.C.C. Suit No. 9 of 2010 (Pashupati Colonizers Vs. Chandra Bhan Tripathi) whereby the court below has dismissed the application of the revision-applicant under Order 1 Rule 10 (2) of C.P.C. for impleading him as respondent in the S.C.C. Suit No. 9 of 2010.
3. A suit for eviction has been instituted by the respondent No. 1-Pashupati Colonizers Private Limited contending inter-alia that Chandra Bhan Tiwari (since deceased) was tenant of the premise No. C-123/89 Purdilpur, District Gorakhpur. The rent of the premise has not been paid since January 2006. After the death of Sri Chandra Bhan Tiwari, the respondent Nos. 2 and 3 have been substituted as his heirs.
4. In the suit, the revision-applicant filed an application paper No. 127-Ga under order 1 rule 10 (2) C.P.C. on the ground that his father late Ram Lakhan Tiwari was original tenant of the premises in question, and after his death, he alongwith his brother late Chandra Bhan Tiwari became the joint tenant of the premises in question. Therefore, the revision-applicant is necessary and proper party in the aforesaid suit and the suit cannot be decided effectively without impleadment of revision-applicant.
5. The application paper No. 127-ga was contested by the respondent No. 1 by filing objection paper No. 131-ga wherein it is contended that the revision-applicant was never in possession of any portion of the property in dispute nor he was a joint tenant of the property in dispute. The application has been filed after 10 years from the date of institution of suit only with an intention to delay the disposal of the suit. It was further pleaded that the revision-applicant alongwith his brother had submitted affidavit 16-ga on 9.2.2011 for recall of the ex-parte order, and in the affidavit paper No. 17-ga, he had not claimed that he was ever in possession of the property in dispute. It was also stated that the revision-applicant had knowledge about the case since 7.2.2011.
6. The trial court while dismissing the application noted that the suit have been instituted in the year 2010 and the revision-applicant alongwith his brother late Chandra Bhan Tiwari had filed application 16-ga under order 9 rule 7 of C.P.C. for recalling the ex-parte order and in the objection filed against the said application, the respondent No. 1-plaintiff has stated that the revision-applicant was not recessary party as the person who is doing business in the premises in dispute was impleaded as a party, yet he did not file any impleadment application immediately thereafter.
7. The trial court also noticed the judgement of the Apex Court in the case of Suresh Kumar Kohli Vs. Rakesh Jain and another, 2018 (2) ARC 40 SC and judgement of this Court in the case of Krishna Kityal (Smt.) Vs. Kamlesh Gupta (Smt.) and another, 2008 (2) ARC 603 in concluding that the revision-applicant is neither necessary party nor a proper party as after the death of original tenant, his heirs inherited the property jointly and a decree passed against one or some of them is binding upon other tenants.
8. Challenging the impugned order, counsel for the revision-applicant has submitted that the revision-applicant is necessary and proper party and impleadment of necessary and proper party can be done at any stage of the proceedings in the interest of justice. He submits that in the facts of the present case, the court below has committed manifest error of law in not allowing the application of revision-applicant under order 1 rule 10 (2) of C.P.C. despite the fact that the revision-applicant is necessary and proper party.
9. In support of his submission, he has placed the judgement of this Court rendered in Civil Misc. Writ Petition No. 20787 of 2006 (Lalit Kumar vs. Neel Kantheshwar and others) wherein this Court relying the judgement of this Court in Gauri Shankar Gupta Vs. Anita Mishra and another, 2004 (1) ARC 200 has held that ordinarily after the death of tenants particularly in case of tenancy of non-residential building all the heirs must be impleaded as tenants in ejectment suit.
10. I have heard learned counsel for the revision-applicant and perused the record.
11. The facts as emanate from the record are that the case of plaintiff-respondent No. 1 is that he has purchased the property in dispute from the erstwhile owner Sri Amitabh Rai by sale deed dated 15.6.2004. Chandra Bhan Tiwari (since deceased) was the tenant of the property in dispute. The tenant had not paid the rent of the property in dispute since January 2006, and therefore, the cause of action arose for the plaintiff-respondent No. 1 seeking a decree of eviction against tenant Chand Bhan Tiwari (since deceased) on the ground of arrears of rent. It is also clear from the record that the revision-applicant has filed application alongwith affidavit paper No. 16-ga and 17-ga with late Chandra Bhan Tiwari for recalling the ex-parte order in which specific objection was filed by the plaintiff/respondent No. 1 that the revision-applicant has no concern with the premise in question nor he is in possession over any part of the premises in dispute. The revision-applicant, thereafter, did not file any application for impleadment in the suit and went into slumber, and after about 10 years from the date of filing of the suit, he woke up for his right and filed impleadment application under order 1 rule 10 (2) of C.P.C. claiming himself to be proper and necessary party for effective adjudication of the case.
12. The trial court noticed paragraphs-25 and 26 of the written statement of the defendant No. 1 wherein it is averred that original suit No. 776 of 2003 (Chandra Bhan Tiwari vs. Amitabh Rai and others) was instituted in the court of Civil Judge (Jr. Division) with respect to the property in dispute, and if the revision-applicant was necessary party then in what capacity Chandra Bhan Tiwari alone instituted original suit No. 776 of 2003. The trial court after noticing the aforesaid fact held that the revision-applicant is not a necessary party as Chandra Bhan Tiwari alone had instituted a suit against erstwhile owner Amitabh Rai on the ground of possession in the property in dispute. The aforesaid finding is based upon proper apprecation of facts on record and is not perverse.
12. A. At this juncture, it would be apt to consider judgement of Apex Court as well as of this Court as to what is the right of the heirs of original tenant after his death in the rented property. The Apex Court in the case of Suresh Kumar Kohli (supra) held that where original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants, therefore, it is not necessary for landlord to implead all legal heirs of deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property as party. Paragraphs-20 & 21 of the said judgement is reproduced herein below:-
"20. We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail.
21. Even otherwise, the intervention at this belated stage of execution proceedings, in the fact and circumstances of the case, seems to be a deliberate attempt to nullify the decree passed in favour of the appellant herein as when Respondent No.1 filed objections under Section 47 Order XXI of the Code, he claimed to be in possession of the suit premises, however, he failed to produce any evidence except two rent receipts for the months of December, 1993 and January 1994 that too when the Respondent No. 1 in his objection petition filed in the execution proceedings of the eviction decree has himself admitted that the there exists a dispute between him and Respondent No. 2 and they had parted their ways."
13. Paragraphs-11, 14 and 16 of Ashok Chintaman Juker & Ors vs. Kishore Pandurang Mantri & Anr, AIR 2001 SC 2251 relevant in the context of present case is reproduced herein below:-
"11. The question that arises for consideration in such cases is whether the tenancy is joint or separate. In the former case notice on any one of the tenants is valid and a suit impleading one of them as a defendant is maintainable. A decree passed in such a suit is binding on all the tenants. Determination of the question depends on the facts and circumstances of the case. No inflexible rule or straight- jacket formula can be laid down for the purpose. Therefore, the case in hand is to be decided in the facts and circumstances thereof.
14. This Court in the case of H.C. Pandey vs. G.C. Paul, AIR 1989 SC 1470 taking note of the settled position 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 tenant, held that it is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereafter and 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. This Court further held that the respondent acted on behalf of the tenants; he paid rent on behalf of his father and he accepted notice on behalf of all; in the circumstances the notice served under Section 106 of the Transfer of Property Act on the respondent was sufficient and it was a valid notice.
16. In the case on hand, as noted earlier, on the death of the original tenant Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of his widow Smt.Kishori Kesrinath Juker. It is not the case of the appellant no.1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed the appellant no.1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the circumstances the decree passed in terms of the compromise entered between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid nor inexecutable against any person who claims to be a member of the family residing with the original tenant, and therefore, a tenant as defined in Section 5 (11) (c). The position that follows is that the appellants have no right to resist on the ground that the decree is not binding on them. Further, the trial court and the appellate court concurrently held that the appellant no.1 has not been residing in the premises since 1962 i.e. when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant no.1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. In that view of the matter the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle the appellants have no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court and the High Court rightly confirmed the said order. This appeal being devoid of merit is dismissed with costs which is assessed at Rs.10,000/-."
14. The Apex Court in the case of H.C. Pandey Vs. G.C. Paul, AIR 1989 SC 1470 held that heirs of original tenant succeed to tenancy as joint tenants and not as tenant in common. Paragraph-4 of the judgement is reproduced herein below:-
"4. 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 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 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. In the present case it appears that the respondent acted on behalf of the ten- ants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under S. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed. "
15. This Court also in the case of Krishna Kityal (Smt.) (supra) has held that on the death of tenant, his heirs succeeds the tenancy right as joint tenancy. Paragraph-7 of the judgement is reproduced herein below:-
"7. Coming to the facts of the present case, it is not in dispute that Sanjay Kumar one of the sons of Late Manohar Lal is carrying on the business from the shop in question he admittedly has obtained registration from the Trade Tax Department for carrying on the business in the said shop. It is also not in dispute that the present application for impleadment was filed on a day earlier when date of delivery of judgment was fixed. The Supreme Court in the case of Harish Tandon (Supra) has held that on the death of tenant, the heirs succeed the tenancy rights as joint tenants, he represents the estate of the deceased as heirs. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants."
16. In the case of Lalit Kumar (supra) relied upon by counsel for the revision-applicant, this Court has also noted the proposition that after the death of tenant, his heirs inherited the tenancy jointly and decree passed against one or some of the tenant is binding on non impleaded tenant also. However, this Court in the said case concurred with the argument of counsel for the petitioner that when a joint tenant applies for impleadment, he cannot be non suited on the aforesaid proposition of law by placing reliance upon judgement of this Court in the case of Gauri Shankar Gupta (supra). In my opinion, the judgement of this Court in the case of Lalit Kumar (supra) is not applicable in the facts of the present case for two reasons; firstly in the case in hand, the impleadment application has been filed maliciously to delay the disposal of the suit inasmuch as the suit has been filed in the year 2010 and the impleadment application has been filed in the year 2020 despite the fact that the applicant has knowledge about the pendency of the suit since 2011 as he had filed application to recall the ex-parte order on 9.2.2011. Secondly, the judgement of this Court in Gauri Shankar Gupta (supra) was considered by this Court in the case of Krishna Kityal (Smt.) (supra) and this Court placing reliance upon judgement of Harish Tandon Vs. Additional District Magistrate and others, 1995 (1) ARC 220 (SC) held that on the death of a tenant the heirs succeeded the tenancy rights as joint tenant, and it rejected impleadment application. Accordingly, this Court is bound by the law propounded by this Court in latter judgement Krishna Kityal (Smt.) (supra).
17. Now applying the aforesaid principle in the case in hand, the revision-applicant who is claiming to be the joint tenant of the property being son of late Ram Lakhan Tiwari, who according to the revision-applicant was original tenant of the premises in dispute, is neither necessary party nor proper party.
18. It is also pertinent to mention that the present application has been filed by the revision-applicant only with a purpose to delay the disposal of the suit inasmuch as he had filed an application in the year 2011 for recall of the ex-parte order in which specific case of the landlord-respondent No. 1-plaintiff was that the revision-applicant is neither in possession of the premises in dispute nor has any concern with the premises in dispute, yet he had slept over the matter and did not file any impleadment application immediately, and after about 10 years, he filed application for impleadment in the suit.
19. For the aforesaid reasons, the present application under order 1 rule 10 of C.P.C., has been filed mischieviously only to delay the suit.
20. For the reasons given above, in the opinion of the Court, the trial court has not committed any jurisdictional error or any material irregularity in rejecting the application under order 1 rule 10 of C.P.C. Accordingly, this Court is of the opinion that the present revision lacks merit and is dismissed with no order as to costs.
Order Date :- 12.4.2021 Jaswant