Bansi Lal vs District Judge and Others

Manoj Kumar Gupta, J—One Smt. Sushila Devi, predecessor-in-title of the third respondent instituted SCC Suit No. 25 of 1999 against the petitioner (defendant No. 1), Jai Kumar (defendant No. 2), Harish Kumar (defendant No. 3) and Smt. Gyan Kaur (defendant No. 4), for recovery of arrears of rent and for ejectment. According to the plaint case, Kanshi Ram was inducted as tenant of two shops and after his death, the tenancy devolved on the defendants, who are the sons and widow of Late Kanshi Ram. The suit was dismissed by judgment dated 8 December 2004. Aggrieved by the said judgment, the plaintiff preferred a revision, which was also dismissed. Aggrieved by the aforesaid judgment and decree passed by the Courts below, the original plaintiff Smt. Sushila Devi filed a writ petition1 before this Court.

During the pendency of the writ petition, Smt. Sushila Devi died on 11 December 2009. Jai Kumar, defendant No. 2, who was arrayed as respondent No. 2 in the writ petition also died on 15 January 2011. Two separate applications for substitution were filed in the writ petition, one being on behalf of Smt. Mithlesh Agrawal (the third respondent) claiming substitution in place of Smt. Sushila Devi on the basis of a Will in her favour. The other application for substitution was in respect of Jai Kumar and thereby his widow Smt. Neelam and two minor sons Rishab and Mayank were sought to be brought on record. It seems that the application for substitution of the heir and legal representative of the deceased petitioner Smt. Sushila Devi was duly allowed by this Court. However, the other substitution application filed for bringing on record the heirs and legal representatives of the deceased Jai Kumar remained pending, though notices were issued to the proposed heirs. It further appears that the said fact was not brought to the notice of the Court at the time of hearing the writ petition and thus, no orders could be passed on the application for substitution of the heirs of Jai Kumar. Ultimately, by judgment dated 26 August 2013, the writ petition was allowed and the matter was remanded to the trial Court for a fresh decision.

After remand of the matter to the trial Court, the third respondent, who was substituted in place of the original plaintiff moved an application seeking amendment in the plaint to the effect that her name be permitted to be shown as the legal representative of the deceased plaintiff and also for entering the name of Smt. Neelam, widow of Jai Kumar and his two minor sons, as his heirs and legal representatives. Consequential amendments were also sought to be incorporated in the plaint by introducing paragraphs 7A and 7B.

The application was opposed by the petitioner, who is defendant No. 1 in the suit, by filing objections to the effect that the application is bad for misjoinder of causes of action inasmuch as, two different prayers for substitution of the heir of the deceased plaintiff and that of deceased defendant cannot be clubbed together. The petitioner also raised objection that no Will on the basis of which Smt. Mithlesh Agrawal sought her substitution has been brought on record and also on the ground that the age of the proposed minor heirs has not been disclosed. It was further alleged that on account of non-substitution of the heirs of the deceased defendant No. 2, the proceedings have abated.

The trial Court, by impugned order dated 2 May 2015, allowed the application 132A seeking amendment in the plaint. The trial Court held that the substitution had taken place during the pendency of the writ petition and, thus, only consequential amendments have been sought by the application in question, which thus deserves to be allowed. The contention of the petitioner that two prayers have been clubbed in a single application and thus, it is not maintainable, was repelled.

Aggrieved by the order of the trial Court, the petitioner preferred SCC Revision No. 13 of 2015, which has been dismissed by Incharge District Judge, Bulandshahr, by order and judgment dated 24 August 2015. The Revisional Court held that even if it is assumed that the legal heirs of deceased defendant and the petitioner were not substituted in the writ petition, it does not make any difference because the legal heirs of the plaintiff moved the application for substitution in the suit at the earliest possible opportunity. The Revisional Court was of the opinion that in between the dismissal of the suit and its restoration to the original number, consequent to the remand order of this Court in the writ petition, there had been no occasion in the past when such an application could have been filed. In coming to such conclusion, the Revisional Court held that a revision or a writ petition is not continuation of the suit. The application in question was filed soon after suit stood restored to its original number.

Learned counsel for the petitioner contended that no substitution application was filed in the suit and the application was only for seeking amendment in the plaint and thus, the trial Court committed a manifest error of law in allowing such an application. He further submitted that under Order 22, a specific procedure is prescribed for bringing on record the heirs of the deceased plaintiff and the deceased defendant and it was not open to the plaintiff to have moved a single application for substitution in respect of the plaintiff and the deceased defendant. He further submitted that the proceedings had abated on account of non-substitution of the heirs of defendant No. 2.

The writ petition filed before this Court, though cannot be deemed to be continuation of the original proceedings but it is not in dispute that therein, the application for substitution of the heirs of the original plaintiff was duly filed and was also allowed by this Court. In such view of the matter, after remand of the proceedings, the third respondent was fully justified in filing application for carrying out consequential amendments in the plaint. In the opinion of the Court, there was no need for filing any substitution application in respect of the deceased plaintiff.

In respect of defendant No. 2, who also died during the pendency of the writ petition, it is not in dispute that substitution application for bringing on record his heirs and legal representatives was duly filed in the writ petition. It has also been admitted by the learned counsel for the petitioner that on such application, notices were issued by this Court to the proposed heirs. However, it seems that formal order allowing the substitution application in respect of the deceased defendant No. 2 was not passed by this Court. It is in view of the said fact that the petitioner now contends that the plaintiff was supposed to have filed a fresh application for substitution, in respect of the second defendant and since no such application was filed, the proceedings of the suit have abated.

Admittedly, the original tenant of the demised premise was Kanshi Ram. All the defendants were impleaded in the suit as the tenancy had devolved upon them, after the death of Kanshi Ram. In the case of Harish Tandon Vs. Addl. District Magistrate, Allahabad, U.P. and others, AIR 1995 SC 676 : (1995) 1 JT 290 : (1995) 1 SCALE 65 : (1995) 1 SCC 537 : (1995) 1 SCR 56 , the Supreme Court held that after the death of the original tenant, the tenancy devolves on his heirs and legal representatives as joint tenants, meaning thereby that the other defendants namely, Bansi Lal (petitioner) and Harish Kumar (fifth respondent) duly represented the estate of Jai Kumar in respect of the tenancy rights. It is also now well-settled that suit for ejectment is maintainable even against one of the joint tenant, unless it could be shown that he is in collusion with the landlord. (See Smt. Kamla Devi Versus Vimal Kumar Jain: 1996 (2) ARC 572 ; Sardar Gurdeep Singh Vs. VIth Addl. District Judge and Others . In Ramesh Chandra Versus III Additional District Judge and others 1995 (1) ARC 181 , this Court held that a release application is maintainable against one of the joint tenants without impleading the heirs of the other deceased joint tenant. In view of the above legal position, in the opinion of the Court, even if a formal order could not be passed on the application allowing the substitution of the second defendant while the matter was pending before the writ Court, it would have no effect on the proceedings. Neither the proceedings before the writ Court nor the consequential proceedings have abated. As such, the exercise for carrying out amendment in the plaint was only of a formal nature. The petitioner, who is one of the defendants, was substantially representing the estate of the deceased joint tenant and thus, even if no formal order was passed by the writ Court on the substitution application of the second defendant, it has not resulted in any prejudice to the petitioner. The objection raised by the petitioner is highly technical in nature and in exercise of power under Article 227 of the Constitution, this Court does not consider it proper to intervene on such contention.

Learned counsel for the petitioner has placed reliance on a decision in the case of Jagarnath and others Versus Ramji and another 2005 (60) ACR 726 , wherein the defendant moved a single application making two prayers namely, to recall an order dated 21 January 2004 and to stay the proceedings of the suit in exercise of power under section 10 CPC. The trial Court rejected the prayer made for recall of the order dated 21 January 2004 and in respect of the second prayer, left it open to the party to move a separate application. The order was challenged on the ground that the trial Court erred in not considering the second prayer made in the application. In the aforesaid context, this Court while referring to Paragraph 28 of the General Rules (Civil), held that the trial Court committed no illegality in requiring the party to move a separate application for stay of the proceedings of the suit under section 10 CPC.

In the instant matter, as observed above, the application in question was in respect of the amendments sought by the plaintiff in the plaint and in the opinion of the Court, Paragraph 28 of the General Rules (Civil) is not attracted, as all amendments could be sought by filing a single application.

The petition lacks merit and is dismissed.

1Writ Petition No. 46231 of 2006