Whether in eviction proceeding landlord is required to prove absolute ownership?

Qua the challenge to ownership of the respondent as also to relationship of owner-tenant between the parties, the learned Trial Court has noted the respondent has purchased the subject property from one Jitender Kumar Sachdeva and Smt. Iqbal Kaur, predecessors in title vide registered a sale deed dated 02.06.2012. A copy thereof has been placed on record and thus the respondent has become the sole and absolute owner of the premises in question. Admittedly, the petitioner has not denied the execution of the sale deed in favour of the respondent by the predecessors in title. His assertion that the respondent was unemployed and a student at the time of the purchase of the property and hence the transaction is hit by the provisions of the Benami Transactions (Prohibition) Act is a frivolous argument. All that the respondent need to show in these proceedings is the respondent/owner has a better title than the tenant/petitioner and nothing more. The respondent is not obliged to prove absolute ownership as is required under the Transfer of Property Act, since this is not a lis determining his title.

IN THE HIGH COURT OF DELHI

RC. Rev. 398/2018 and CM Appl. 33400/2018

Decided On: 10.01.2019

 Neelam Sharma Vs.   Ekant Rekhan

Hon'ble Judges/Coram:

Yogesh Khanna, J.

Citation: 2019(1) RCR(Rent) 464

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Whether tenant inducted by person having life interest can be evicted without following eviction proceeding?

 A statutory protection granted for the benefit of the tenants under specific tenancy laws is to be viewed from a standpoint of protecting the interests of a particular class. Restrictions on recovery of possession of the premises let out to the tenants have been imposed for the benefit of the tenants as a matter of legislative policy.

16 There is a fallacy in the submission which was urged on behalf of the appellant. The appellant postulates that a life interest is personal to the person who possesses it and the creation of a tenancy which will enure beyond her life amounts to a transfer of the life interest. What the submission overlooks is that the

creation of the tenancy was an act of the person enjoying a life interest in the present case and was an incident of the authority of that individual to generate income from the property for her own sustenance. The creation of a tenancy is an incident of the exercise of such an authority. The protection which is conferred upon the tenant against eviction, except on specified grounds, arises as a consequence of statutory prescription under rent control legislation. The reason why the tenant is entitled to occupy the premises beyond the life time of the landlord who created the tenancy is simply as a result of a statutory enactment, in this case, the East Punjab Rent Restriction Act 1949. It is the intervention of a legislative mandate which enures to the benefit of the tenant. Once this has taken place, it was not open to the civil court to entertain a suit for possession founded on the hypothesis that the tenant is a trespasser.

17 In view of the above discussion, we have come to the conclusion that:

(i) Shiv Dev Kaur was in terms of the will executed by her father, Dr Hira Singh on 16 September 1944 entitled to a life interest in the property;

(ii) Under the terms of the will, Shiv Dev Kaur was entitled to settle and reside in the property and benefit from the income arising out of the rent;

(iii) The life estate granted to Shiv Dev Kaur enabled her to create a tenancy and receive the rent from the tenants on the property. She fulfilled the description of a ‘landlord’ under Section 2(c) of the East Punjab Urban Rent Restriction Act 1949;

(iv) The first respondent who was covered by the expression ‘tenant’ under Section 2(i) of the East Punjab Urban Rent Restriction Act 1949 acquired the character of a statutory tenant and was protected under it;

(v) The statutory protection afforded to the tenant did not cease to exist upon the death of Shiv Dev Kaur;

(vi) A suit for possession on the basis that the tenant was a trespasser after the death of Shiv Dev Kaur was not maintainable; and

(vii) The remedy of the appellants was to pursue eviction proceedings on the grounds contemplated by the East Punjab Urban Rent Restriction Act 1949.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 11086 of 2018

Dr RS Grewal  Vs  Chander Parkash Soni 

Dr Dhananjaya Y Chandrachud, J

Dated:April 16, 2019.
Citation: (2019) 6 SCC 216,2019 (1) RCR (Rent) 577 : 2019 (6) Scale 532

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Whether unauthorised occupant is liable to deposit use and occupation charges during pendency of eviction proceeding?

As already observed, the word 'rent' in Order XVA CPC is not limited to the 'admitted' rent. In any event, it also envisages the Court determining an 'amount' payable towards either rent or future mesne profits. In the present case, after the termination of the tenancy, the Defendants continue to occupy the commercial property. The property, in which where they are running a restaurant, is located in a busy market area. The Defendants have not countered the documents placed on record by the Plaintiff to show that the current market rent for commercial property of a similar size in the area is more than Rs. 3 lakhs per month. The mere fact that the Plaintiff may have the title documents of the residential property of the Defendants cannot be said to constitute sufficient security for the purposes of Order XVA CPC. The object of this provision is to provide the landlord with some 'amount' for use and occupation of the property by the Defendant during the pendency of the litigation. Keeping these factors in view, the Court is of the opinion that pending the final decision in the suit, the Defendants should deposit towards use and occupation charges/falling within the meaning of the expression 'such amount' in Order XVA CPC, a sum of Rs. 1 lakh per month.

IN THE HIGH COURT OF DELHI

CS (OS) 1698 of 2011

Decided On: 03.12.2013

 Prem Lata Vs. Raghubir Rai and Ors.

Hon'ble Judges/Coram:

S. Muralidhar, J.

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Whether court can take note of subsequent events in execution of decree?

For the foregoing discussion, we must hold that events which take place subsequent to the filing of an eviction petition under any Rent Act can be taken into consideration for the purpose of adjudication until a decree is made by the final Court determining the rights of the parties but any event that takes place after the decree becomes final cannot be made a ground for reopening the decree. The finality to the dispute culminating in the decree cannot be reopened by the executing Court for re-adjudication on the ground that some event or the other has altered the situation. As a corollary thereto it must also be held that once the decree became final it became a part of the estate of the landlord and therefore the appellants as legal representatives of the deceased landlord are entitled to execute the same.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 622 of 1994.

Decided On: 04.02.1994

P.V. Papanna and others Vs. K. Padmanabhaiah

Hon'ble Judges/Coram:

S. Mohan and M.K. Mukherjee, JJ.

Citation:AIR 1994 SC 1577, (1994) 2 SCC 316

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Whether dismissal of earlier eviction petition in default would operate as res judicata to subsequent eviction petition?

In Hariender Kaur Vs. Sharan Gurdev Singh MANU/PH/0323/2008 : 2008 (2) PLR 478, it was also similarly held that the principles regulating the Code of Civil Procedure would not operate and there would not be a res judicata as such and reliance was also placed upon the judgment of the Apex Court. It was held as under:

"6. Full Bench of this Court in the case of Amar Singh and Anr. v. Dalip MANU/PH/0334/1981 : 1981 PLR 649 has held that Section 11 Civil Procedure Code deals with the decisions of the Civil Courts only and the decision of the court of exclusive jurisdiction/Tribunals are not covered by that section. The decisions of Tribunals and Courts of exclusive jurisdiction debar the raising of the issues in a civil suit on matters which are exclusively within their jurisdiction not because of Section 11 but because of the provisions contained in the statute creating those Tribunals or Courts. Sometimes, their decisions operate by way of res-judicata under the general principles of res-judicata also but never because of the provisions of Section 11."

7. Then in Sheodan Singh v. Daryao Kunwar, MANU/SC/0264/1966 : AIR 1966 Supreme Court 1332, it is held that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits. It is observed that:

"....for example, the former suit was dismissed by the trial. Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit."

8. As held in N.R. Narayari Swamy's case (supra), grounds of bona fide requirement or non-payment of rent is a recurring cause. Even otherwise, the principles regulating the procedure under the Code of Civil Procedure are not strictly applicable to proceedings under the Act. In view of the position as noticed, it is not possible to hold that withdrawing a petition under Section 13 of the Act can act as res-judicata for the petitioner to prosecute his petition under Section 13-B of the Act. No other, point is urged before me."

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 8057 of 2016 (O&M)

Decided On: 05.07.2017

Sham Lal  Vs. Vinod Kapoor and Ors.

Hon'ble Judges/Coram:

Gurmeet Singh Sandhawalia, J.

Citation: 2017(2) RCR(Rent) 344

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Whether tenant is liable to evicted if he parts with possession of tenanted premises without consent of landlord?

(14)(4). For the purposes of Clause (b) of the proviso to Sub-section (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to that person.

This Sub-section provides that if a person is allowed to occupy the premises ostensibly as a partner of the tenant but really for the purpose of sub-letting it, such an arrangement would be deemed to be sub-letting. Therefore, if the tenant has allowed any person to occupy the whole or any part of the premises, actually for the purpose of sub-letting but speciously by entering into a partnership with him, such an arrangement shall be deemed to be subletting. In other words, subletting is not permitted by camouflaging it as a partnership.

The combined reading of Clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sub-let, assign or part with the possession of any part of the premises or the whole, it must be preceded by the consent in writing from the landlord. In other words, the requirement of obtaining the consent in writing of the landlord is retained as a pre-requisite even for the purposes of Sub-section (4). What is of importance is, in either case whether a person has been inducted genuinely as a partner and therefore allowed to occupy the premises or whether the partnership is a ruse, the requirement of consent in writing as in Sub-section (1) is retained. In the present case, there is no evidence that the tenant obtained the consent in writing from the landlord before allowing the son-in-law to occupy the premises in pursuance of the Partnership deed.”

In view of the above, the appeal is allowed on the ground of parting of possession by the tenant/Respondent No.1 in favour of Respondent No.2 without consent of the landlord. The Respondents are directed to vacate the premises within two months from today.

 Non-Reportable

Supreme Court of India

Bhairon Sahai (D) Thr.Lrs. vs Bishamber Dayal (D) Thr.Lrs. . on 18 July, 2017

Bench: S. A. BOBDE J,L. NAGESWARA RAO J.
Citation: (2017) 8 SCC 492

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Whether court can consider question of standard rent if tenant has not raised it within one month from date of service of notice?

A similar question has arisen before the Supreme Court in the case of Harbanslal Jagmohandas v. Prabhudas Shivlal MANU/SC/0480/1976 : [1976]3SCR628 and the relevant Head Note runs as follows:--

"In order to avoid the operation of S. 12(3)(a) of the Act the dispute in regard to standard rent or permitted increases must be raised at the latest before the expiry of one month from the date of service of notice under Section 12(2) of the Act and it is not enough to raise a dispute for the first time in written statement . ................... ....................

The view that disputing within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and there is another mode of raising the dispute at any stage of the suit nullifies and provisions contained in Section 12 and Explanation thereto and confers a right on the tenant where the legislative does not contemplate such a right".

6. This Court in the case of Jaypal Bandu Adake v. Basavali Gurulingappa Mhalank MANU/MH/0262/1982 : AIR1982Bom563 , has also considered this question and the following Head Note makes the position clear:--

"The only way to prevent a decree for eviction being passed under the provisions of Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act is that the tenant must make an application raising a dispute regarding rent and must ask for fixation of standard rent under Section 11(3) of the Bombay Rents, Hotel and Loading House Rates Control Act as required by Explanation I to Section 12. There is no other mode permissible for raising a dispute as to standard rent for the purpose of Section 12 of the Bombay Rents Act. By raising a dispute with regard to standard rent by the tenant in a reply to the demand notice before the expiry of one month without making an application under Section 11(3) read with Explanation 1 to Section 12, the Court will not be prevented from passing a decree for eviction under the provisions of S. 12(3)(a).................."
It is thus clear that whenever a Court has to consider a case under Section 12(3)(a) of the r Act. the question of standard rent cannot be gone into unless the tenant has made an application for the purpose within one month from the receipt of the notice.
IN THE HIGH COURT OF BOMBAY

Spl. Civil Appln. Nos. 2439 and 2784 of 1978

Decided On: 22.11.1982

Chhaganlal Mulchand Jain Vs. Narayan Jagannath Bangh

Hon'ble Judges/Coram:
M.N. Chandurkar and B.C. Gadgil, JJ.

Citation: AIR 1983 Bom 212

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When order of striking off defence of tenant for non payment of rent amount is liable to be set aside?

The third aspect is that between the date of the order dated 21st April, 2008 Under Section 15(1) of the Act till February, 2009 the Petitioner had made further payments of rent. One of these payments was made on 27th June, 2008 while the second payment was made on 17th December, 2008. These payments represented rent for a period of six months. This means that the Petitioner had paid advance rent upto 31st August, 2009. Not only that, the Petitioner had made two further deposits, one on 1st May, 2009 and the second on 5th May, 2009. These payments when taken into consideration cleared the entire rent liability of the Petitioner for a period of one year and nine months commencing from 1st September, 2009 onwards. If that be so the Petitioner was not in default on the date of the order passed by the Trial Court striking out his defence and for a considerable period beyond that. The Petitioner has in the special leave petition referred to certain subsequent payments also but we consider it unnecessary to go into those details. What is important is that as on the date of the order passed by the Trial Court on 21st April, 2008 itself the entire arrears directed to be deposited by the Petitioner stood paid by him and so also on the date of the order passed by the Trial Court striking out his defence, rent for the entire intervening period and even beyond had been paid. These payments may require reconciliation, calculations and suitable adjustments against the months for which rent was payable but what cannot be disputed is that the amount which the Petitioner was called upon to pay and which he has, pursuant to the direction of the Trial Court, paid or deposited has been at all relevant points of time in excess of what was payable to the landlord. The charge of contumacious failure and deliberate default in making the payment levelled against the tenant is, therefore, not well-founded. The Petitioner on the contrary was at all points of time keen to pay the amount of rent in excess of what was lawfully due. This may have been partly because of the consequences that flow from nonpayment and partly because the amount of contractual rent is, by the current standard of market rent, very meagre. The withholding of such a meagre amount was a risk that no prudent tenant protected under the Rent Control law of the land could take nor was it a case where by withholding the kind of amount which was due towards rent would have in any manner benefited the tenant, just as the same would not have deprived the landlord of any major financial income from the property let out by him. It is true that just because the amount payable for the premises is low and payment or non-payment thereof makes little difference to either the tenant or the landlord, is no reason for the tenant not paying the rent as and when due. The question, however, is not whether the denial of the amount would have caused any major prejudice to the landlord or put the tenant under any financial burden. The question is whether the tenant was guilty of contumacious conduct in withholding such payment. While answering that question, the amount of rent payable for the premises may be a factor which cannot be totally brushed aside. Suffice it to say that the facts and circumstances of the case at hand do not, in my opinion, suggest any negligence, defiance or contumacious nonpayment of the amount due to the landlord to warrant the taking of that "exceptional step" which is bound to render the tenant defenceless in his contest against the landlord.

36. It is noteworthy that in the course of hearing before us, learned Counsel for the Petitioner-tenant had offered to raise rent by ten times of the current amount and pay the same in advance for a period of five years to show his bona fides. From the point of view of the landlords this may be seen as a damage control desperate bid to avoid eviction by winning the sympathy of the Court but from the point of view of the tenant it only shows that the tenant does not grudge the landlord getting what is legitimately due to him. The cumulative effect of all these circumstances, in my view, entitles the tenant to an opportunity to contest the suit for eviction. It is a different matter that the contest may eventually result in his eviction but there is no need to prejudge the matter on merits nor any valid reason to deprive the tenant-Petitioner the bare minimum opportunity to contest the eviction petition on merits.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4563 of 2014 (Arising out of S.L.P. (C) No. 26941 of 2011)

Decided On: 16.04.2014

 Dina Nath (D) by L.Rs. and Anr.Vs. Subhash Chand Saini and Ors.

Hon'ble Judges/Coram:
T.S. Thakur and J.S. Khehar, JJ.
Citation:(2014) 11 SCC 20;

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When tenant will not be evicted from tenanted premises even if he denies title of landlord?

Even the other ground, about denial of title by the tenant, the District Court has found that this plea was necessitated because of the civil suit pending between the appellant and one Vishwanath Tandale, filed by the appellant himself before the Civil Court bearing RCS No.1044 of 1983. That suit was pending at the relevant time. The fact that the respondent-tenant rushed to the Rent Controller immediately after receipt of notice from the appellant, is indicative of a bonafide plea taken by the respondent-tenant regarding dispute of ownership of the suit shop; and a plea legitimately available to the respondent-tenant. This finding of the District Court found favour with the High Court. Even in respect of this finding no interference is called for, being flawless.

NON-REPORTABLE

Supreme Court of India

Baburao vs Pokhardas(D) Tr.Lrs on 16 August, 2016

Bench: T.S. Thakur, A.M. Khanwilkar, D.Y. Chandrachud

Citation:(2016) 15 SCC 97

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Whether court can direct separation of family of landlord in eviction proceeding?

The learned trial Judge has found that family of the landlady was consisting of the landlady, her widowed daughter, her son, daughter in law and two grand children. Taking into consideration these aspects, the learned trial Judge found that the accommodation in occupation of the plaintiffs was not sufficient to meet their requirement and as such held that the plaintiff had proved the case regarding bonafide requirement. Insofar as the ground regarding comparative hardship is concerned, the learned trial Judge has relied on the admission given by the defendant herself that she was owing a building at Dombivali. The learned Appellate Court while reversing the said finding has relied on the additional evidence which is placed on record i.e. a document regarding acquisition of flat in the name of the daughter-in-law of the plaintiff at Badlapur. The learned Appellate Judge has observed that the plaintiffs and her daughter can reside on the first floor of the building owned by her at Thane and the son and daughter-in-law alongwith their children can reside at Badlapur. While arriving at a finding that the test of comparative hardship was in the favour of the tenant, the learned Appellate Court totally ignores the admission given by the tenant that she owns a building at Dombivali. In my considered view the finding of the learned Appellate Court in this respect is nothing but pervert.

31. By now it is settled principle of law that neither the tenant nor the Court can dictate the landlord as to what is bonafide and reasonable need. It is equally settled that landlord is the best Judge of his requirement. Reliance in this respect could be placed on the judgment of the Apex Court in the case of Meenal E. Kshrisagar vs. Traders & Agencies & anr. {1997 (1) Mh. L.J.}. It will be relevant to refer to the following observations of the Apex Court

As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the Courts to dictate to him to continue to occupy such premises.

32. It is to be noted that learned Appellate Court has totally ignored the evidence of the father of the daughter-in-law of the plaintiff, namely Dinkar Gopal Deshpande. In any case it was not for the Appellate Court to have directed that the plaintiff's family should be separated and plaintiff and her daughter should stay at Thane and other members be shifted at Badlapur. As observed by the Apex Court, it is not for the Court to dictate to the landlord, as to how he should use the property. The learned trial Court considering that present accommodation was not sufficient for accommodating family of six members has rightly granted the decree on the said ground. 

Had the Appellate Court noticed this admission, may be the finding which is recorded by him, could not have been recorded. The learned Appellate Court wants the plaintiff's family to be separated, some members to reside at Thane and others to reside at Badlapur, when they have a house of their own at Thane. It is to be noted that Dombivali is a much better location as compared to Badlapur. It is difficult to understand as to how the plaintiff landlady's family be directed to be separated and the defendant-tenant be permitted to reside in the tenanted premises, when on own admission of the defendant she owns a building at Dombivali. In that view of the matter, findings in that regard also in my considered view are not sustainable in law.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5202 of 2002 with Civil Application No. 673 of 2013

Decided On: 10.05.2013

 Smt. Sudha Sumant Barve Vs. Smt. Ranjana Ramesh Padhye

Hon'ble Judges/Coram:

B.R. Gavai, J.

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Whether landlord can initiate eviction proceeding even if he is not entitled to inherit tenanted property?

In the impugned order, the High Court held that it was Pydamma, respondent No. 1, who had inducted the appellants in the properties in question and it was also the finding of the High Court and also the trial court that the appellants continued to pay rent in respect of the properties in question for some period and thereafter stopped payment. On such findings, the High Court held that it was not open to the appellants to deny the title of properties in question of Pydamma in view of Section 116 of the Evidence Act. In the case of Bilas Kunwar v. Desraj Ranjit Singh MANU/PR/0010/1915, the Privy Council observed as follows:

A tenant who has been let into possession cannot deny his landlords title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord.

(Emphasis Supplied)

This view was also recognized by this Court in Atyam Veerraju and Ors. v. Pechetti Venkanna and Ors. MANU/SC/0349/1965 : [1966]1SCR831 . Similar view has also been expressed in a later decision of this Court in the case of Tej Bhan Madan v. II Additional District Judge and Ors. MANU/SC/0536/1988 : AIR1988SC1413 in which it was held that a tenant was precluded from denying the title of the landlady on the general principles of estoppel between landlord and tenant. It was held that the principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. In our view, Section 116 of the Evidence Act is clearly applicable in the present case, as held by the High Court in the impugned order. The finding of fact of the High Court and the trial court that the appellants were let into possession by Pydamma and that possession was not restored to her by surrender, was based on consideration of material evidence on record, which cannot be disturbed by us. Therefore, in our view, even if respondent No. 1, Pydamma, was not entitled to inherit the properties in question of late Suryanarayana then also she could maintain the application for eviction and obtain a decree/order of eviction on the ground of default and sub-letting under the A.P. Tenancy Act. We keep it on record that the learned Counsel appearing for the appellants did not raise any objection on the findings of the High Court regarding default and sub-letting, before us.

14. In this connection, we may also point out that in an eviction petition filed on the ground of sub-letting and default, the court needs to decide whether relationship of landlord and tenant exists and not the question of title to the properties in question, which may be incidentally gone into, but cannot be decided finally in the eviction proceeding. In this view of the matter and in view of the discussions made herein above, we are of the view that the eviction petition filed by respondent No. 1 was maintainable in law and respondent No. 1 was also entitled to obtain a decree/order of eviction.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 149 of 2004

Decided On: 12.05.2006

Bhogadi Kannababu and Ors.

Vs.

Vuggina Pydamma and Ors.

Hon'ble Judges/Coram:

Dr. Arijit Pasayat and Tarun Chatterjee, JJ.

Citation:(2006) 5 SCC 532

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Whether will be effect if some of heirs of deceased tenants are not made party in eviction proceeding?

 It is a well established principle of law that upon death of tenant, the legal representatives become joint tenants and not the tenants in common. The tenancy right is indivisible. Therefore, it is an established principle of law that the notice of eviction served on one of the joint tenants is binding on all the joint tenants. Then if by notice of determination of tenancy, issued to one of the joint tenants, all the joint tenants would become tress-passers in case the suit premises are not vacated, naturally the suit against some of the joint tenants would also bind the remaining joint tenants.

 There is one another angle to the issue of non-

joinder of necessary parties. Mr. P.M. Shah, learned senior counsel for the petitioners in civil revision application No. 112/2012 placed reliance on the ratio laid down in the cases of "Textile Association (India) Bombay Unit V. Balmohan Gopalkrup and others", reported in (1990) 4 S.C.C. 700, "Ishwarlal Pranjeevandas and others V. Labhshankar Hargovindas Bhat", reported in AIR 1982 Gujarat 152, "Tarachand and others V. Ramprasad"

reported in (1990) 3 S.C.C. 526 and "Surayya Begum (Mst) V. Mohd. Usman and others", reported in (1991) 3 S.C.C.114.

 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 absent.

 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 co-heir, 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 Explanation-VI of Section 11 of the Code of Civil Procedure.

Bombay High Court

Rameshchandra Daulal Soni And Anr vs Devichand Hiralal Gandhi, Died ... on 20 July, 2015

Bench: M.T. Joshi

Citation; 2015(6) MHLJ 309 Bom

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