2003(1) ALL MR 1046
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

N.V. DABHOLKAR, J.

Smt. Lilabai Madre Pillay And Ors. Vs. Taheralli Abdul Kayum And Ors.

Civil Revision Application No. 636 of 1999

1st July, 2002

Petitioner Counsel: Shri V.S. BENDRE
Respondent Counsel: Shri A.B. GATNE

(A) Civil P.C. (1908), S.115 - Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.29 - Suit for eviction of tenant from shop premises - Trial court wrongly holding that suit has abated for not bringing on record some heirs of deceased defendant - In appeal dismissal and abatement set aside and suit restored to file - Though appeal was not maintainable against order of trial court same relief could be granted by treating it as revision - High Court could also give relief under S.115 as jurisdiction of High Court is not excluded by special statute. (Para 5)

(B) Civil P.C. (1908), O.22, R.4 - Suit for eviction of tenant from shop premises - Death of one of defendants - His legal heirs not brought on record - Suit does not abate - Plaintiffs can proceed with suit by impleading some of his legal heirs - Such legal heirs may not be conducting business after his father's death - Other legal heirs would be bound by decree in absence of fraud or collusion. (Para 6)

Cases Cited:
Dattaram Vs. Harikishan, 1979 Mah.L.J.633 [Para 3,4,6]
Anand Niwas, AIR 1965 SC 414 [Para 6]
Shantabai Vs. Ganpat, 1976 Mah.L.J. 332 : AIR 1976 Bom.288 [Para 6]
Ganpat Vs. Shashikant, AIR 1978 SC 955 [Para 6]
Smt. Gian Devi Anand Vs. Jeevan Kumar, AIR 1985 SC 796 [Para 6]
Ram Das Vs. Deputy Director of Consolidation, AIR 1971 SC 673 [Para 6]
Beharilal Vs. Bhuri Devi, AIR 1977 SC 1879 [Para 6]
Yadav Vs. Zibal, 1993 Mah.L.J.756 [Para 6]
Chaya Vs. Indubai, 1993(1) M.L.J. 613 [Para 6]
N. K. Mohammad Suleman Vs. N.C. Mohd. Ismail, AIR 1966 SC 792 [Para 6]


JUDGMENT

JUDGMENT :- Present revision petition is filed by defendants/ legal representatives of deceased Madre Pillay - original defendant, challenging the order dated 30.1.1999 passed by learned II Additional District Judge, Ahmednagar in Misc. Civil Appeal No. 264 of 1988. By the impugned order, learned Additional District Judge was pleased to set aside dismissal of Regular Civil Suit No. 105 of 1981 by virtue of order dated 28.6.1998, passed by Joint Civil Judge J.D. Ahmednagar. Infact, by order passed below Exhibit 83, an application filed by petitioner, learned Joint Civil Judge J.D. Ahmednagar held that the suit of the plaitiffs has totally abated in view of the fact that some of the legal representatives of Madre Pillay are not brought on record, and consequently by separate order below Exhibit 1, the whole suit is disposed of as dismissed.

2. Regular Civil Suit No. 105 of 1981 was filed by eleven plaintiffs regarding the suit premises, allegedly let out to defendant Madre Pillay for business purpose. The possession was claimed on the ground that premises were bonafide required for starting of business of the family of plaintiffs. It was also contended that the premises were required to be vacated, since requisite major repairs cannot be carried out while the tenant is in possession. Admittedly Madre Pillay was running tailoring shop in the name and style "Madras Tailors" in the suit premises. That the suit premises are being used as business premises, is evident from the pleadings of both the parties and undisputed.

It appears from the copy of the plaint, annexed as Exhibit "A" to revision petition that legal heirs of original defendant Madre Pillay are brought on record by amendment dated 13.1.1982 and as many as six persons are brought on record,namely; Sunderbai Shivlingam Pillay, Leelabai d/o Modre Pillay, Sham s/o Madre Pillay, Shubhalaxmi d/o Madre Pillay, Lata d/o Madre Pillay and Dharmraj s/o Madre Pillay.

3. It appears that the suit has reached the stage of evidence and evidence of one Fakruddin as first witness of the plaintiffs had commenced. Said witness, in paragraph No. 21 of his deposition (during the Course of cross examination ) stated that Madre Pillay had three sons and a daughter. Subsequently in the same paragraph he admitted that Madre Pillay had four sons and one daughter. He also admitted that all sons are residing together and all of them are majar. Daughter Lata is married. (Throughout their arguments, both the lawyers did not clarify as to how three daughters and two sons of Madre Pillay have come on record, although application Exhibit 83 and arguments of learned counsel for petitioners are based on the admission of witness Fakruddin to the effect that Madre Pillay had four sons and daughter. In this context, contentions in paragraph No. 5 of Exhibit 49 - written statement filed by legal heirs, to the effect that the names of defendants Nos. 4 and 5 (Shubhalaxmi and Lata ) are wrong has also some significance. However, it was clarified during the course of arguments that Sunderabai was sister of Madre Pillay and she died issuless, while staying with Madre, as her husband had deserted her).

In view of above deposition of witness Fakruddin, defendants filed application Exhibit 83 claiming that plaintiffs have failed to bring any legal heirs of Sunderabai and some legal heirs of Madre Pillay on record and therefore, the whole suit has abated and the same may be dismissed. After considering the arguments of both sides, learned Civil Judge was pleased to accept the prayer mainly in view of the observations of this High Court in reported judgment in the case of Dattaram Vs. Harikishan (1979 Mah. L.J.633).

The matter was challenged before the District Court in the form of Misc. Civil Appeal No. 264 of 1988 by plaintiffs and learned District Judge was pleased to allow the said appeal by the impugned order, set aside the dismissal and abatement, restored the suit to the file with directions to plaintiff to bring remaining legal heirs on record.

4. Advocate Shri Bedre for petitioners while assailing the impugned order has contended that this is an order directing abatement of the suit and in view of provisions of Order XLIII Rule 1 of Civil Procedure Code such an appeal is not maintainable. He also urged, again by relying upon the observation of this High Court, in the case of Dattaram (Supra ) that trial Court was justified in dismissing the suit as totally abated, in view of the failure on the part of plaintiffs to bring on record some of the legal heirs of Madre Pillay and any of the legal heirs of Sunderabai.

Advocate Shri Gatne submits that, in case the appeal before the District Court was incompetent the judgment of the appeal court may be treated as judgment in its revisional jurisdiction or in the alternative, this Court may consider illegality and material irregularity in the order of learned Civil Judge J.D. and issue the same directions as issued by District Court.

As a third alternative, Shri Gatne prayed for remand of the matter to the District Court for consideration in its revisional jurisdiction.

5. So far as contention of learned Advocate Shri Bedre, that the appeal before the District Court was incompetent, on reference to Section 29 of the Bombay Rent Act under which the original suit arose; has quite a good grain of substance. In fact, a revision before the District court was the appropriate remedy. Relevant portion of Section 29 reads as under :

"29. Appeals :-

(1) Notwithstanding anything contained in any law, an appeal shall lie -

(a) In greater Bombay, .......

(b) elsewhere, from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Cause Court Act, 1887, or by the Court of the Civil Judge deemed to be the Court of Small Causes under clause (c) of sub-section (2) of section 28 or by a Civil Judge exercising such jurisdiction, to the District Court ;

Provided that no such appeal shall lie from-

(I) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908;...."

It is further evident from sub-section (3) of Section 29 that where no appeal lies under this section from a decree or order, a Bench of the Judge of the small causes court in Greater Bombay and District Court elsewhere, is empowered to consider such orders in their revisional jurisdiction.

The abatement of suit, either by virtue of death of plaintiff or defendant, is an order passed under Order XXII Rule 3 or 4 as the case may be and on reference to Order XLIII Rule 1 clauses (k) and (l), it is evident that the orders in Rules 9 and 10 of Order XXII refusing to set aside the abatement or dismissal of the suit and orders giving or refusing to give leave to the assignee to continue in the suit are appealable orders. Thus it can be inferred that the appeals directing abatement of the suit are not appealable and consequently, a revision to the District Court was competent.

However, argument advanced by learned Advocate Shri Gatne for the respondents that in the present case, the scope of revision could not nave been different than the extent to which the matter is considered by registering the same as Misc. Civil Appeal; cannot be ignored lightly. As can be seen from the orders of lower Courts, the only issue before the Court was, whether suit as a whole was abated because some of the legal heirs of Madre Pillay were not brought on record. This is not a case, wherein none of the legal heirs were brought on record. Thus the issue under consideration was an issue of interpretation and legal effect of the provisions regarding abatement. The District Court was not required to enter into discussion of any of the issues of fact and the argument of Shri Gatne that had the matter been considered in its revisional jurisdiction, the scope could not have been any different than when it is considered as Misc. Civil Appeal, is required to be accepted in the peculiar facts and circumstances of the case. The nomenclature at the time of registration is for an administrative convenience and therefore, the impugned order of the District court can be considered to be an order in its revisional jurisdiction and dealt with accordingly by a revision before this Court, since the District Court is subordinate to High Court. The mere fact that the Court has exclusive jurisdiction over the matter under certain Act, does not affect the revisional jurisdiction of the High Court, unless such revisional jurisdiction has otherwise been expressly or implidly ousted. Where there is no exclusion of right of revision of High Court, either expressly or impliedly, under special or local statute, Section 115 will apply and in view of this position Shri Gatne would be justified in submitting, in case the order of District Court is termed as non est because the appeal to the District Court was not competent, that the order of the Civil Judge may be considered by this Court in its revisional jurisdiction may be a suo motu revision. Propriety and interest of justice demand that this adjudication at interim stage in a suit instituted in 1981 should be given finality, instead of remanding the matter to District Court with directions to reconsider the same issue by re-registering it as revision petition under Section 29(3) of the Bombay Rent Act.

6. From the copies supplied, it appears that the written statement was filed by Madre Pillay on 20.8.1983 and defendants Nos. 3 to 6 on 30.1.1987. Although legal heirs have pleaded that in case they are required to vacate, their business will be stopped and they will lose their earning source of livelihood, it is not specifically pleaded as to which of the legal heirs are conducting the business in the suit premises, which was originally run by Madre Pillay. This fact is of crucial importance as can be seen from the case law relied upon by both the parties. It must also be borne in mind that initially Madre Pillay alone was the defendant and his some of the legal heirs are brought on record. This is not a case, where more than one defendants/ co-tenants were initially impleaded and upon death of one of the co-tenants his legal heirs are not brought on record, which is the position in the matter of Dattaram (supra). In that case, still relied upon by Shri Bedre and also by the trial Court, while dismissing the suit as totally abated, original tenant had died in the year 1946. After his death his three sons and a widow i.e. defendants Nos.1 to 3 and 4 respectively were treated as monthly tenants in respect of the shop premises. The suit for eviction on the basis of arrears of rent for the period 1.9.1962 to 31.3.1963 was filed on 31.3.1965.

In the said case, by referring to the observations of the Supreme Court in the case of Anand Niwas's (AIR 1965 SC 414), it was observed by this Court that, the Supreme Court has held that the rights of statutory tenant are personal rights, but at the same time, the Supreme Court has not ruled out devolution of tenant's rights in case of death of the statutory tenants. On the contrary, the Supreme Court has pointed out that the rights of statutory tenant devolved on his death only in the manner provided by the statute. The question whether the rights devolved according to personal law or not was not considered by the Supreme Court and therefore, relying upon the decision of Division Benches of this Court, it was held that merely because the rights of a statutory tenant are personal, it will not be open to the landlords to invoke the principle of survivorship. Earlier, the Division Bench had taken a view that interest of statutory tenant is transmissible, it is heritable and heirs of deceased tenant in the personal law are entitled to succeed to the tenancy rights in preference to person who claims the right of a statutory tenant by virtue of provisions in Section 5 (11) (c) of the Rent Act. In this matter, legal heirs of defendant No. 3, one of the sons and co-tenant had died and his legal heirs were not brought on record. It was held, as he was a co-tenant along with other three defendants, his legal heirs would succeed to his (defendant No. 3's) rights, as the co-tenants, after death of defendant No.3. Consequently, all the heirs taken together, along with three remaining co-tenants would share the tenancy rights and all of them would be treated as tenants holding the common tenancy vis-a-vis landlord.

Dattaram's case can be distinguished on facts, from the matter at hands. In Dattaram's case, all four legal representatives of deceased tenant were accepted as co-tenants holding a common tenancy before institution of the suit. In the present case, the suit was instituted against Madre Pillay, who was the original tenant and some of the legal heirs brought on record have already exercised their right of inheritance. This is not a case wherein there is a common tenancy, joint tenants are sued and there is failure to bring on record, legal heirs upon death of one of the co-tenants. Viewed from this angle, the ratio laid down in the matter of Dattaram's case is inapplicable to the matter at hands.

The decision in case of Shantabai Vs. Ganpat (1976 Mah. L.J. 332 ) = (AIR 1976 Bom. 288) relied upon in Dattaram's case, holding that a member of the tenant's family residing with him, at the time of his death would be entitled to the protection of Rent Act in relation to any premises including business premises of which deceased was a tenant at the time of his death, was reversed by the Supreme Court in its judgment reported at AIR 1978 SC 955 (Ganpat Vs. Shashikant), by holding that Section 5(11)(c) of the Act applies only in respect of residential premises and hence it was argued by Advocate Shri Gatne for respondents that where the premises are business premises, son of the tenant, by inheritance, cannot claim to be a tenant under Section 5(11)(c) of the said Act and cannot claim benefit thereunder. He also added that only those legal heirs who have continued the business of deceased tenant would be capable of stepping into his shoes as tenant.

Eventually, ratio laid down in Ganpat's case, to the effect that so far as business premises, the son of the tenant cannot claim to be a tenant under section 5(11) (c) and cannot claim benefits thereunder, is overruled in later judgment reported at AIR 1985 SC 796 (Smt. Gian Devi Anand Vs. Jeevan Kumar and others). It was held that the heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of deceased tenant. This was the ratio, in the light of principle that the statutory tenancy of commercial premises is heritable.

In the case at hands, some of the legal heirs already being on record, we are not so much concerned with the issue if statutory tenancy of commercial premises is heritable, as much with the issue if the suit, as a whole abates, if some of the legal heirs are not brought on record and the answer is in the negative, if the estate of deceased is represented by some of the legal heirs who are already on record.

Advocate Shri Gatne for respondents has relied upon quite a few cases laying down ratio that when some of the legal heirs are already on record, they represent the estate of deceased and the suit does not abate, but other legal representatives can be brought on record.

In the case of Ram Das Vs. Deputy Director of Consolidation (AIR 1971 SC 673), it was held that the appeal would not abate if all legal representatives are impleaded on record except one for want of particulars. It was also held that the remaining legal representatives can be subsequently impleaded.

In the case of Beharilal Vs. Bhuri Devi (AIR 1977 SC 1897), wherein allottee of the plot was represented by widow and daughter, it was held that both were already on record representing his estate and therefore, by the reason of death of widow, the appeal does not abate.

Even the Bombay High Court has taken similar view in the matter of Yadav Vs. Zibal (1993 Mah.L.J.756), that if after death of a party some of the legal heirs are brought on record within limitation or are already on record, then the suit does not abate as the legal heirs on record representing the suit of deceased.

In the case Chaya Vs. Indubai (1993 (1) M.L.J. 613), the tenant had expired during the pendency of the suit for possession of the shop premises. All his representatives except one daughter were brought on record. When the daughter objected to the execution of decree, it was held that the said daughter was bound by the decree.

Lastly, reliance was placed upon the observations of the Supreme Court in the matter of N.K.Mohammad Suleman Vs. N.C. Mohd. Ismail (AIR 1966 SC 792) and the observations are as follows :

"Where on account of bonafide 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 even partially, in the absence of fraud or collusion or other ground, which taint the decree, a decree passed against the persons impleaded as heirs binds the estate even though the persons interested in the estate are not brought on record."

If the ratio laid down in this matter is to be applied, plaintiffs will be justified in proceeding with the suit by impleading some of the sons of deceased Madre Pillay, even though the said son may not be conducting the tailoring business after death of his father and the said son representing the estate of deceased i.e. tenancy rights in the shop premises; other legal representatives will be bound by the decree in the absence of fraud or collusion.

Hence, since some of the legal heirs of deceased Madre Pillay and Sunderabai are already on record, the suit could not have been disposed of in its totality, as abated. On the contrary, it is necessary to implead remaining heirs which details being strictly within the knowledge of legal heirs are required to be furnished by them.

The orders dated 28.6.1988 passed by Civil Judge J.D. Ahmednagar in Regular Civil Suit No. 105 of 1981 treating the suit as abated and thereby dismissing it are quashed and set aside.

Revision petition is dismissed. Rule discharged. No order as to costs.

Revision dismissed.