THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRP No. 520 of Smt. Rekha Devi Achantani Respondents

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1 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 Advocates for the Respondents : Mr. G.N. Sahewalla, Senior Advocate. : Ms. B. Sarma. : Mr. Kamal Agarwal, Senior Advocate : Mr. AK Gupta. Date of hearing : Date of judgment and order : CRP 520/2015 & CRP 526/15 Page 1 of 26

2 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/ ) 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 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 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/ ) Both the appeals were analogously heard and both the appeals were allowed by virtue of judgment and decree dated passed by the learned Civil Judge, Dibrugarh, by reversing the judgment and decree passed by CRP 520/2015 & CRP 526/15 Page 2 of 26

3 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 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 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 and ejectment notice dated was sent by registered post asking the defendants to vacate and to deliver khas, vacant and peaceful possession of the schedule premises within or that they would be liable for damages at CRP 520/2015 & CRP 526/15 Page 3 of 26

4 the rate of Rs.100/- per diem since 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 and the rent for the month of December, 2004 was paid on 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 , 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 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, 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 CRP 520/2015 & CRP 526/15 Page 4 of 26

5 in court. The defendants admitted serving notice dated 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 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 5 of 26

6 13) On issue No.(i), the learned trial court, relied on an Advocate s notice dated (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, The learned trial court also disbelieved the case of defendants that enhanced rent was demanded, by referring to the notice dated (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 Hence, it was held that the mandatory provision for depositing rent CRP 520/2015 & CRP 526/15 Page 6 of 26

7 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 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 nonjoinder 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. CRP 520/2015 & CRP 526/15 Page 7 of 26

8 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 CRP 520/2015 & CRP 526/15 Page 8 of 26

9 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 9 of 26

10 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 ) 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 10 of 26

11 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 nonjoinder of necessary parties, the learned Senior Counsel for the respondents has placed reliance on the case of Kanakarathanammal Vs. Loganatha Mudaliar, AIR 1965 SC ) 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 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 ) 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 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 11 of 26

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

13 250/2005. 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 Courti. 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, ) As Late Motilal Achantani died on (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 13 of 26

14 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 14 of 26

15 ii. iii. iv. 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. 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. 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 , was the tenant on , when the suit was filed by the petitionerplaintiff. A firm could have been sued in its name as per the provisions of Order XXX Rule 10 CPC. 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 CRP 520/2015 & CRP 526/15 Page 15 of 26

16 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 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 crossexamination, 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 , 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 16 of 26

17 cash book. He admitted that in Ext.D petition dated 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 , i.e. way before , 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 17 of 26

18 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 18 of 26

19 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 to , 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 19 of 26

20 viii. 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 , 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. 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 , 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 20 of 26

21 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 , 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 nonjoinder 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 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 21 of 26

22 xi. xii. 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. 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, nonimpleading 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 22 of 26

23 xiii. xiv. 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. 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 23 of 26

24 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 , but since , 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 petitionerplaintiff for the period commencing from October, However, as rent upto CRP 520/2015 & CRP 526/15 Page 24 of 26

25 had become barred by limitation, the decree for payment of rent from till 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 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 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 ; 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 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 25 of 26

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