Monday, 12 December 2016

When suit for eviction of tenant is not bad for non joinder of necessary parties?

The   issue,   therefore,   would   remain   as   to
whether a suit for eviction against some of the legal
representatives of the deceased tenant would be tenable.
The   record   in   the   present   case   would   show   that   the
plaintiff had issued notice to the defendants No. 1 and
2 directing them to pay the rent.  The same was replied
by the defendants No. 1 and 2 without specifying that
they alone are not occupying the suit premises but their
sisters,   being   the   legal   representatives   of   deceased
tenant, would be liable to pay the rent.   The plea is
taken in the written statements that the deceased also
left behind “2 daughters”.

 In   some   of   the   cases,   the   exparte   decree   in
favour   of   the   tenant   was   passed   as   the   legal
representatives of the deceased tenant, who were joined
as   defendants   to   the   exclusion   of   others   remained
. In  the case of “Surayya Begum (Mst) V. Mohd.
Usman and others” (cited supra), relied on by Mr. Shah,
the law on the subject   has been thoroughly discussed.
The   ratio   would   show   that   as   to   whether   failure   to
implead one or the other heir/s of deceased tenant as a
party, would render the eviction decree not executable,
depends upon the facts and circumstances of a particular
case.   It was held that if the interest of the person
not   impleaded   bonafide   represented   by   the     co­heir,
objection   to   the   execution   of   the   decree   would   be
unsustainable. However, in case of collusive or malafide
exclusion of heir from impleadment, such objection would
be sustainable.  Reliance was placed by Their Lordships
on the Explanation­VI of Section 11 of the Code of Civil
18. In   a   way,   if   it   would   an   effective   class
representation,   then   as   per   the  Explanation­VI   to
section 11 of the Code of Civil Procedure, the issues
decided in the lis would be res judicata as against the
legal   heirs   not   impleaded   in   the   suit.     If   all   these
aspects   are   considered,   then   the   fact   that   the
defendants No. 1 and 2 in the present case did not, in
their   communication   earlier   to   the   litigation,
communicate   the   fact   of   having   other   legal
representatives to  the  deceased and thereafter  raising
of the said issue by amendment of the written statement
lateron in the trial court would show that if at all any
grievance of the sisters of the defendants No. 1 and 2
would   be   there,   the   plaintiff   would   very   well   be
entitled   to   show   that   they   were   litigating   bonafide
against present defendants No. 1 and 2.   At least, the
issue is not required to be decided in the present lis.
Rameshchandra Daulal Soni,
 Devichand Hiralal Gandhi,

DATED  : 20th JULY, 2015
Citation:2016(6) ALLMR 63
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