Kewal Krishan vs Mast Ram Barolo

This appeal is under section 100 of the Code of Civil Procedure. Sh. Mast Ram Abrol, the respondent herein brought a suit for ejectment of the

appellants and respondents 2 to 4 from the shop which he had leased to late Ram Saran on a monthly rent of Rs. 30/ in the year 1974. The original

tenant (Late Sh. Ram Saran) it is admitted died sometime in the year 197980 and is survived by the appellants and the respondent 2 to 4. The

landlord sought ejectment of the tenant on the ground of default in the payment of rent and personal necessity. The trial court of Munsiff , Jammu

decreed the suit on 27021990 holding that the tenants were guilty of default in the payment of rent and also the shop is reasonably required by the

landlord for his persona! use and the occupation. The First Appellate Court (1st Additional District Judge, Jammu) concurred with the finding of

the trial court that the shop was reasonably required by the landlord and his requirement was comparatively greater than that of the tenant. The

appellate court, however, reversed the finding on the question of default as according to it notice calling upon the tenant to pay or deposit arrears

of rent in terms of proviso to clause (i) of subsection (1) of section 11 of the J&K Houses and Shop Rent Control Act (for short the Rent Control

Act) had not been served upon all the tenants. However, it confirmed the finding that the tenants were in arrears of rent and in case it is found that

notice was validly served, a decree for ejectment would follow.

The only ground which has been urged by the learned counsel appearing for the appellants is the failure of the trial court and the first appellate

court in recording a finding as contemplated in the proviso to the explanation section 11 (1) (h) of the Rent Control Act. Mr. Pangotra learned

counsel appearing for the appellants submits that in the absence of any finding that the the requirement of the landlord could be satisfied by partial

eviction, the judgment and decree impugned is liable to be set aside and the plaintiff's suit dismissed. In support of this he placed reliance on the

decision of Apex Court in 'Raman Jee Wangnoo Vs. Ram Chand & others', AIR 1978 SC 413; and 'Krishna Murari Prasad Vs. Mitar Singh',

AIR 1994 Sc 489. Mr. Sharma, learned counsel appearing for the landlord, however, argued that the partial eviction is possible only when the

premises admit of division and the tenant is willing to occupy part of the portion. Since the appellants nowhere pleaded that they are willing for

partial eviction, therefore, trial court was justified in not considering the question of partial eviction. The Appellate Court, according to him,

rejected a similar argument on the ground that no evidence was produced by the tenant.

It is clear that issue with regard to the partial eviction has not been framed. It is also not disputed that no evidence was led by the parties as to

whether the premises are capable of being divided and if so divided the requirement of the landlord can be satisfied by partial eviction. The

appellants are, therefore, prejudiced by the absence of the issue. The law is now settled that such a issue is necessary so as to return a finding. In

'Raman Jee' case (supra) their Lordships held as under:

The only ground which we consider tenable and which has been urged by the appellant before us turns on the failure of the courts of fact in

recording a finding as contemplated in the proviso to the Explanation to Section 11 (1) (h) of the Act. Obviously an error has been committed by

the High Court in thinking that there is a concurrent finding of fact under the proviso aforesaid. The trial court and the first appellate court have

really not considered this question on the merits; indeed evidence itself has not been taken on the score that there has been no specific plea in that

behalf. We are satisfied that the proviso aforesaid mandates the court to consider whether partial eviction contemplated therein should be ordered

or the entire holding should be directed to be evicted. This aspect, therefore, requires judicial exploration after giving opportunity to both sides to

lead evidence in this behalf.

The proviso is identical to section 11 of the Bihar Building (Lease, Rent and Eviction) Control Act. In case' 'Krishnan Murari Prasad' Their

Lordships set aside the judgment of High Court of patna by directing as under:

It is obvious that the High Court proceeded on the basis that a presumption arises that where the premises comprises only of one room, the

proviso to clause (c) of Subsec. (1) of S.I 1 of the Act is not attracted since its application is not practicable. Obviously, this assumption is

fallacious since it presupposes indivisibility of a premises comprised of one room, irrespective of its dimensions and even when the room is high

enough to permit division to satisfy the needs of the landlord as well as the tenant. It is a question of fact in each case whether such a partial

eviction can be made or not. This enquiry has to be made by the Court after reaching the conclusion that the landlord's requirement for occupation

of the premises set up by him has been made out. In failing to do so, the courts below over looked this statutory requirement.

In the first instance, this has got to be done by the Trial Court and, therefore, it would be appropriate to remit the matter to the Trial Court.

So the Trial Court as well the First Appellate Court erred in holding that requirement of the landlord is reasonable without determining the

question whether it could be satisfied with the partial eviction. The Trial Court will thus first ascertain from the appellants tenants whether they are

willing to division of the shop before proceeding to consider the question whether the shop is capable of being divided and if so divided, it will

satisfy the requirement of the landlord. This will be necessary in case the appeal succeeds.

Mr. Sharma has, however, argued that the judgment and decree is sustainable because the finding of the First Appellate Court that notice of

default was required to be served on each of the tenants is erroneous. The issue as framed by the trial court is ""whether the defendants have

committed three legal defaults in the payment of rent to the plaintiffs."" There is a specific averment in para 6 of the plaint that notice requiring the

tenants to pay arrears of rent w.e.f 02/02/1979 to 01/11/1982 were sent to them. It is also averred that defendants 1, 2 and 4 i.e. the appellants

and respondents 2 were duly served while respondents 3 and 4 refused to accept the notices. In reply to this para, the defendants have simply

pleaded that the notice was not legally valid.

The question arises whether defendantstenants have controverted the averment made in the plaint that notice calling upon them to pay the

arrears of rent have been served upon them. The First Appellate Court dealt with this question at para 27 of the judgment. The relevant portion of

which is extracted below:

It appears that it is only defendant kewal Krishan who has the substantial interest in the suit shop. The interest of the other defendants in retaining

the suit shop and in the joint tenancy is coterminous with the interest of Kewal Krishan. Defendant Kewal Krishan has not been served with any

notice as the plaintiff has not been able to place any evidence on record to show that defendant Kewal Krishan who is defendant No. 4 in the suit

has been duly served. Defendant kewal Krishan as observed earlier has denied the contents of para 6 of the plaint. Though in the said para he has

not stated specifically that he was not served with the notice still the fact remains that he has denied the service of notice and as such the plaintiff

was required to prove that a notice was duly served upon him. Had defendant Kewal Krishan been served with the notice the presumption of

service upon all the tenants could be drawn in view of the judgment of the Hon'ble Supreme Court reported in AIR 1989 SC page 1470 but in the

present case the same cannot be presumed against all tenants defendants though the same is proved to have been made upon some of the

defendants as aforesaid.

It is thus admitted by the First Appellate Court that .notice in terms of proviso to clause (1) of subsection (1) of section 11 has been served

upon some of the tenants. It is also admitted that receipt of notices has not been specifically denied in the written statement filed by the appellants.

The court, however, ruled that since Kewal Krishan alone was in occupation of the shop, therefore, unless he was called upon to pay the arrears

of rent, eviction on the ground of default in the payment of rent could not be ordered. However, in case the appellantKewal Krishan was in

exclusive possession of the shop, it would not be a case of joint tenancy. But this fact is contradicted by the learned Appellate Court at para 28 of

the judgment. The relevant portion of which reads as under:

In the present case the tenancy admittedly has been inherited by five defendants and as such law requires the service of notice upon all of

individually and in case some one is acting on behalf of others then upon such defendant. In the present case no notice has been proved to have

been served upon all the defendants have committed defaults in the payment of rent as contemplated by Sec. 11 of the J&K Houses and Shops

Rent Control Act.

The learned court does not appear to be clear about the import of tenant in common and joint tenants while considering the application of the

law laid down in 'H. C. Pandey V. G.C. Paul' AIR 1989 SC 1470, where their Lordships held as under:

It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession,

the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It

is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between

the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears

that the respondents acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the

circumstances, the notice was served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (AIR 1977 All

38) (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the

notice under S. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must

succeed.

After referring to this judgment, the learned court failed to apply its ratio descendadi by making distinction on facts which do not exist.

However, even the finding that notice was not served on all the defendants is erroneous because in para 6 of the plaint following averments is

devoted to the service of notice only which reads as follows:

That the defendants were asked a number of times to vacate the shop under their tenancy and handover its vacant possession to the plaintiff so as

to enable him to start his own business so that his own personal necessity is satisfied. However the defendants adopted delaying tactics on one

pretext or the other. They were also asked to pay the arrears of rent on a number of occasions but they did not pay the same. Finally notices under

registered cover calling upon the defendants to vacate the shop under their tenancy and handover its vacant possession to the plaintiff on 211983

by midnight or on any earlier date they deemed the end of their month of tenancy and also to pay on account of arrears of rent w.e.f. 2.2.1979 to

1.11.1982 sent to them. The notices sent to defendants Nos. 1,2 and 4 were duly served upon them while defendants 3 and 5 refused to received

the same. The defendants however neither vacated the suit shop nor paid the arrears of rent to the plaintiff and have rather refused to do so. The

acknowledgment dues in original evidencing the receipt of the notice by the defendants 1,2 and 4 are enclosed. The registered A.D. letters

received back on account of refusal of the defendants no. 3 to 5 to receive when tendered by the post man as is apparent from the report of the

postman are also attached herewith.'

This has been replied in para 6 of the written statement filed on behalf of all the tenants which reads as follows:

That the contents of para no. 6 of the plaint are false, hence denied. The alleged notices mentioned in the para under reply are not legally valid.

The defendants were never and are not in arrears of rent. So, the question of nonpayment of rent does not arise at all.

So receipt of notices by the defendants is not denied. They have questioned the legality and validity of the notice only and not the receipt

thereof. However, the plaintiff had specifically pleaded that each one of the defendants had been served with the notice calling upon them to pay

the arrears of rent. This fact had to be specifically denied by them. But they admitted the service of notice in the manner pleaded by the plaintiff but

challenged its legality only. Moreover, Rule 5(1) of order 8 C.P.C. provides that :

Specific Denial: Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the

pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

The Trial Court did not frame the issue regarding the service of notice because the receipt of it was admitted or atleast not denied. But it

erroneously held that there was no evidence to prove service upon all the joint tenants. But the Trial Court has rightly held that the service upon

one is service upon all the joint tenants. But the 1st Appellate Court erred in holding that service upon Kewal Krishan was necessary as he was in

occupation of the premises which is contrary to its own finding that the tenancy had been inherited by all the five defendants and each of them

required to be served with a notice. The finding that notice must be served on all the joint tenants is contrary to the law laid down in 'H. C. Pandey

Vs. G.C. Paul' case (supra).

Moreover, the question whether all the defendants had been served with the notice as required under law is a question of law in view of the

fact that receipt of notice has not been denied in the appeal. It is perhaps for this reason that the issue was argued by Mr. Sharma without any

objection from the opposite side. In fairness to Mr. Pangotra, he has not opposed the challenged to the findings in view of the law laid down in 'J.

C. Chatterjee & Others V. Shri Sri Krishan Tandon and another. AIR 1972 SC 2526, which reads as follows:

The landlord had alleged in the suit that by a notice dated 2661962 served upon the tenant, the tenancy had been duly terminated. This was not

denied in the written statement nor was an issue demanded at the time of trial. However, the point being essentially a point of law, the learned

Judge in second appeal permitted both sides to address him on the point and came to the conclusion that the contractual tenancy had been duly

terminated by a notice. In these circumstances, we do not think that there is any substance in the submission of the learned counsel for the appellant

before us that the learned Judge should have remanded the case for a determination of that question.

The facts in this case being identical as the landlordrespondent had alleged that the notice was received by the appellants and other joint tenants

which fact was not denied by them in the written statement or in the evidence there was no option but to allow Mr. Sharma to read evidence and

pleadings. Strangely enough, there is not even a whisper in the statement of appellants that notice was not received by them.

The next question is whether the respondentlandlord could challenge the finding regarding the service of notice without filing crossobjections.

This question was considered by the High Court of Calcutta in M/S Tide Water Oil Co. (India) Ltd. Vs. K.D. Banerjee AIR 1982 Calcutta 127.

Relying on the decisions of the Privy Council and Supreme Court, the Division Bench of the court held that:

It has already been indicated that the crossobjection has not been pressed at present. Nevertheless, law is well settled on this because of the

provisions of Order 41 R. 22(1) of the Civil PC. The decision of the privy Council in the case of Bala Gourisunker V. Janki in (1890) ILR 17 Cal

809 (PC) the cases in AIR 1962 SC, AIR 1963 SC 1516 (Panna Lal V. State of Bombay) and AIR 1964 SC 1425 (Virdha Chalam pillai Vs.

Chaldean Bank) at page 1438 may be referred to show that the respondent can challenge an adverse finding without filing an appeal or a

crossobjection.

Similarly, a Bench of High Court of Allahabad in 'Balkrishan Das Agarwal Vs. Smt. Radha Devi and others AIR 1989 Allahabad 133, ruled as

under:

If the plaintiffs were not aggrieved by the judgment, they could hardly have a cause to file an appeal and for that matter even to file a cross

objection. That being so, the plaintiffs are entitled to support the decree even on those points that have been decided by the judgment under appeal

against them. In our view, therefore, the respondent is entitled to challenge the finding on the question of due execution of the will even though a

crossobjection in that regard has not been filed. We therefore, over rule the preliminary objection of the appellant."" The legal position is thus settled

that respondent can challenge the adverse finding without filing crossobjection.

So the landlord is entitled to a decree for eviction as the appellants have committed three defaults in the payment of rent within a period of 18

months. In view of this it is not necessary to remand the case for returning a finding on the question of partial eviction. The appeal is accordingly

dismissed without any order as to costs.