Naren Dasgupta vs Sri Dipak Kumar Nag & Ors.

Jyotirmay Bhattacharya, J. - This appeal will be heard on the following substantial questions of law :-

Whether the learned First Appellate Court was justified in entertaining the first appeal which was filed by some of the co-landlords without joining the other co-landlords as party to the appeal though they were impleaded as proforma defendants in the suit ?

Whether the learned lower Appellate Court committed a substantial error of law in holding that the learned Trial Court had correctly decided the maintainability of the suit in favour of the plaintiffs, without appreciating that the present suit for eviction of the tenant/defendant no.1/appellant had not been filed by or on behalf of all the joint landlords who had jointly inherited the property form the original landlord of the defendant no. 1/appellant ?

Immediately after we admitted this Second Appeal for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure, we are requested by the learned counsel appearing for the parties to dispose of this appeal on merit. Accordingly, on their prayer, we have decided to hear this appeal on merit by dispensing with the requirement of filing paper books and by treating the appeal as on the day''s list.

Let us now consider the merit of the instant appeal in the facts of the present case with reference to substantial questions of law, formulated by us herein above.

The plaintiffs/respondents filed a suit for eviction against the defendant/appellant on the ground of default in payment of rent and also for their reasonable requirement. The defendant appeared in the said suit and contested the same by filing written statement. Not only the maintainability of the suit was challenged by the defendant in his written statement, but also the legality and validity of the ejectment notice was also challenged.

The learned Trial Judge after considering the respective cases of the parties and also their evidence held that the defendant is not a defaulter in payment of rent. As such, no decree was passed on the ground of defaulter in payment of rent. The learned Trial Judge also held that the plaintiffs/landlords did not reasonably require the suit premises for their own use and occupation. However, the notice point was decided in favour of the plaintiffs. Accordingly, the suit was dismissed by the learned Trial Judge.

After being aggrieved by and dissatisfied with the judgment and decree of the learned Trial Judge, the plaintiffs/respondents filed an appeal before the learned First Appellate Court. The learned First Appellate Court was pleased to allow the said appeal and granted a decree for eviction in favour of the plaintiffs/respondents on the ground of reasonable requirement.

Incidentally it may be mentioned herein that the defendant/appellant filed a cross-objection in the said appeal challenging the legality of the findings of the learned Trial Judge relating to the legality and validity of the ejectment notice. The learned appeal court by relying upon a decision of the Hon''ble Supreme Court held that the ejectment notice need not be served by all the co-owners/landlords. Thus, the learned Appeal Court decided a notice point in favour of the plaintiffs/respondents as the ejectment notice was served by all the plaintiffs/co-owners/landlords.

The learned Appeal Court also held that the suit for eviction is maintainable at the instance of one of the co-owners/landlords. Such conclusion was drawn by the learned Appeal Court by relying upon a decision of the Hon''ble Supreme Court in the case of Ram Pasricha v. Jagannath reported in (1976) 4 SCC 184.

The learned First Appellate Court after considering the pleadings of the parties and evidence on record held that the plaintiffs/respondents reasonably require the suit premises for their own use and occupation. Accordingly, the appeal was allowed and a decree for eviction was passed against the defendant/appellant on the ground of reasonable requirement.

The legality and/or validity of the said judgment and decree of the learned First Appellate Court is under challenge in this appeal before us.

We have heard the contention of the learned counsel of the respective parties on the merit of this appeal.

Let us now consider the merit of the instant appeal in the facts of the instant case.

Here is the case where we find that the suit premises was let out by the predecessor-in-interest of the plaintiffs and the proforma defendants. On the death of the original landlord, the plaintiffs and the proforma defendants became the landlords of the defendant/appellant. Since the proforma defendants did not join with the other co-landlords viz. The plaintiffs herein, the plaintiffs herein filed the suit for eviction against the tenant/appellant by joining the unwilling co-landlords as proforma defendants in the said suit. Incidentally, it may be mentioned that eviction notice was served upon the defendant/appellant by the plaintiffs alone.

We have already mentioned above that the learned Trial Court decided the suit by holding that the plaintiffs do not reasonably required the suit premises. However, the court did not hold that the suit is not maintainable at the instance of some of the co-owners/landlords.

Being aggrieved by the said judgement and decree only those plaintiffs filed an appeal before the learned first appellate court. While filing this appeal, the other co-landlords who were impleaded as proforma defendants in the suit, were not made parties in the said appeal. In this context, a question has come up for our consideration as to whether such an appeal is maintainable or not.

The learned first appellate court held by relying upon a decision of the Hon''ble Supreme Court in the case of Ram Pasricha v. Jagannath (supra) that such a suit for eviction at the instance of one of the co-owners/landlord is maintainable.

Mr. Mukherjee has also placed strong reliance upon the said decision of the Hon''ble Supreme Court in the case of Ram Pasricha v. Jagannath (supra) to support the judgement and decree of the learned first appellate court.

Let us now consider as to how far the said judgement of the Hon''ble Supreme Court was properly appreciated by the learned first appellate court while applying the principle laid down therein in the facts of the present case.

In the case of Ram Pasricha v. Jagannath (supra), a question came up for consideration before the Hon''ble Supreme Court as to whether a co-owner but absolute landlord can maintain a suit for eviction on the ground of reasonable requirement. The Hon''ble Supreme Court held that a suit for eviction filed by a co-owner but absolute landlord is well maintainable.

Here is the case, where we find that the plaintiffs are not the absolute landlords of the defendant. On the death of the original landlord, the plaintiffs became the landlords of the defendant along with the proforma defendants. Thus, here is the case where we find that all the landlords have not come forward to file the eviction suit on the ground of reasonable requirement. However, since some of the co-landlords were not willing to join with the plaintiffs, they were made parties in the suit and such a suit filed by some of the co-landlords/co-owners is maintainable as the other unwilling co-landlords were made parties in the suit as proforma defendants. But, we are of the view that in the absence of those proforma defendants, the appeal filed before the learned first appellate court was not maintainable. As such, we hold that the judgement and decree which were passed by the learned first appellate court are not sustainable. We thus set aside the judgement and decree of the learned first appellate court.

At this juncture, Mr. Mukherjee submits that the proforma defendants were not impleaded as parties in the appeal by mistake. He thus sought for permission to regularise the said defect in the first appeal by impleading those left out proforma defendants/respondents as proforma defendants in the said appeal.

Considering such submission of Mr. Mukherjee, we are of the view that justice will be sub-served if we permit the plaintiffs/respondents to implead those left out proforma defendants in the first appeal within a time bound period.

Accordingly, we grant leave to the plaintiffs/respondents to take appropriate step for bringing those left out proforma defendants on record in the appeal before the learned first appellate court within four weeks from date with this rider that in the event such step is taken by the plaintiffs/respondents before the learned first appellate court, the learned first appellate court will allow such prayer for addition of parties of the plaintiffs/respondents and will consider the appeal on merit without being influenced by any of the observations made by us herein above.

It is made clear that in the event no step is taken by the plaintiffs/respondents for addition of those left out proforma defendants in the appeal within the time as mentioned above, the appeal will be deemed to be dismissed.

Before parting with, we also like to mention here that since the notice point has also been challenged by the defendant/appellant before the learned first appellate court, if occasion so arises for consideration of the first appeal on merit by the learned first appellate court, the learned first appellate court will consider the challenge with regard to the legality and validity of such notice served by some of the co-landlords at the time of hearing of the first appeal.

Both the appeal and the application for stay being CAN 6795 of 2015 are thus disposed of.