Union of India vs Hari Tara Charitable Trust, Jammu

Sharma, J.

1 .This appeal (LPA) is directed against the judgment and decree dated December 27.1995 passed in civil 1st Appeal (CIA No. 527 94) by the

learned Single Judge whereby the judgment and decree dated 671994 passed by the learned District Judge, Jammu (in civil Suit No. 80/94) was

confirmed. The factual matrix of the case briefly stated is that respondent No. 1 herein namely, Hari Tara Charitable Trust, through its Trustees

(respondents Dr. Karan Singh and Smt Tashu Raja Lakshmi) filed the suit of ejectment against the appellants in respect of houses alongwith lawns,

vacant lands and roads appurtenant there to bearing Nos 3A, 3B, 4A and 4B. These quarters are known as Manda quarters. The lease of quarter

No. 3A had commenced from 1081965, of quarter No. 3B from 1781965, of Quarter No. 4A from 171965 and Quarter No. 4B from

16111967. The monthly rent of each quarter was Rs. 325/.

2.Respondent Trust had terminated the tenancy by giving notice under section 80 of the Code of Civil Procedure. The tenancy of quarter No. 3A

terminated on 991984; of 3B on 1691984, of 4A on 3091984 and of 4B on 1591984 respectively. It was stated in the notice that on failure to

vacate the above stated premises on the dates stated above, compensation for use and occupation at the rate of Rs. 3000/ per quarter had to be

paid by the appellants. The appellants herein had failed to vacate the said quarters and respondent No. 1 on 2331985 filed the suit in this court

which on 1951988 was transferred for trial to the court of learned 1st Add. District Judge, Jammu. The learned Judge showed his inability to try

the suit on personal reasons and made a reference to this court for retransferring the suit to some other court. The reference was accepted and on

May 13, 1995, the suit was transferred for trial to the court of learned District Judge, Jammu, During the trial of the suit, two of the quarters in

question, namely, 3A and 3B were purchased by Sh Tirath singh from respondent No. 1 and he made an application to be impleaded as a party in

the proceedings. The application was accepted and vide order dated 1651994, the learned District Judge, Jammu impleaded Mr. Tirath Singh as

plaintiff No.2. The trial court had passed the decree in respect of all the above stated four quarters but in the decreesheet, the name of plaintiff No.

2 (Sh Tirath Singh) was not shown. After obtaining the decree of ejectment in its favour respondent No. 1 sold the remaining two quarters in

question, namely, 4A and 4B in favour of respondent No.3 herein (Sh Tirath Ram Amla). The appellants entered into compromise with the vende

(plaintiff No.2 Sh Tirath Singh) and did not file appeal against him. They however, challenged die judgment and decree passed in respect of

quarters No. 4A and 4B and impleaded the vendeo Sh Tirath Ram Amla as respondent No.3 in the name of appeal. In the suit respondent No. 1

had claimed the following reliefs:

(i) ejectment of the appellants from the quarters in question;

(ii) compensation to the tune of Rupees One Lakh, on account of the damages caused to the structures of the quarters in dispute;

(iii) Compensation in the sum of Rupees 48,000/ for their use and occupation.

3.The appellants resisted the suit on various grounds urged in the written statement. On the pleadings of the parties, the following 10 issues were

raised:

Whether the present suit has been filed by the proper and compotent person and as such, he is compotent to sigh the plaint? OPD

Whether the suit suffers from the vice of the misjoinder of causes of actions, if so, what is its effect? OPD

Whether the suit is not maintainable as there are different tenancies? OPD

Are the defendants entitled to the benefits of Houses and Shops Rent Control Act, if so how? OPD

Is the income of the defendants not more than Rs. 40,000/per year? OPD

Whether a valid and legal notice had been served upon the defendants in respect of tenancy? OPP

Has any damage been caused to the premises by the defendants, if so what is the amount of compensation which the plaintiff is entitled to

recover? OPP

Have any defendants obtained the suit premises for their departmental and commercial purposes, if so what n its effect? OPD

Whether the plaintiff is entitled to claim compensation for use and occupation of Rs. 3000/ per month beyond contract rate of rent? OPP

10.Relief

Issue No. 1 was decided in favour of respondent No. 1. Issues No. 2,3,4,and 5 were decided against the appellants. Issue No. 6 was decided

the in favour of respondent No. 1. While deciding the issue it was held that there was a deemed admission made by the appellants for accepting

the service of the notice of ejectment. The contents of the notice were perused and it was found valid under law. Issue No. 7 was not pressed by

respondent No.. The prayer of respondent No. 1 was accepted in order to enable it to make the claim of the damages after the decision of the

case subject to just exceptions of law. Issue No. 8 was decided against the appellants. Respondent No.1 had with drawn the claim of the relief

sought in issue No. 9. On the above said findings on the issue, issue No, 10 was decided and decree for ejectment of the appellants from the

quarters in question was passed with a relief to pay Rs. 4200/ as compensation for use and occupation of the promises for a period of 4 months

alongwith interest at the rate of 12% per annum pendente lite.

5.The appellants challenged the judgment and decree of the trial court by filing appeal (CIA No.52/94) which was dismissed and the judgment and

decree of the trial court confirmed. These concurrent findings have been challenged through the medium of the present appeal. In the memo of

appeal, the following questions have been formulated as substantial questions of law:

(i) Whether in a suit for eviction against the Union of India and its functionaries i.e. appellants 2 and 3 a composite notice under section 80 CPC

and under section 106 of the Transfer of property Act will meet the requirements of law?.

(ii) If the answer of the first question is in affirmative whether in the facts and circumstances of the case notice given by respondent No. 1 and 2 to

the Union of India without serving notice upon the functionaries of Union of India i.e. respondents No. 2 and 3 to evict the rented premises specify

the mandate of section 80 of CPC and section 106 of the Transfer of property Act?

(iii) Whether a relief can be granted in favour of respondent No. 3 without making formal application by respondent No. 3 before the learned

District Judge or before the Hon'ble High Court. In the absence of any application before the Hon'ble High Court as respondent No.3 entitled for

the benefit of order 21 Rule 167

(iv) Whether respondent No. 3 an execute the decree without making an application before the learned District Judge, Jammu that he has

purchased the property and as such steps into the shoes of respondents No. 1 and 2 and can execute the decree?

On 371996, the appeal was admitted to hearing.

Heard the arguments.

6.The counsel for respondent No. 3 have contended that the case does not involve any substantial question of law and the appeal requires out right

dismissal. Question No. 1 has been framed to determine the legality of a notice which is of composite nature given to the Union of India under

section 80 C.P.C and section 106 of the Transfer of property Act. The learned counsel appearing for the appellants could not convince us how

such a notice can be termed as illegal. Rather, the settled position of law is that a composite notice can be given under section 80 CPC and section

106 TPA. Question No. 2 deals with the proposition whether notice given by respondent No. 1 (through respondents Trustees) to appellant No. 1

(Union of India) can serve the purpose of the service of a valid notice to its functionaries i.e. appellants No. 2 and 3 herein. The controversy raked

up in this question is now not a res intogra because the Apex court in the case of Ghulam Rasool and another v/s State of J and K (AIR 1983 SC

1188) has laid down the principle of law that once the suit was against the State and a functionary of the State had been impleaded as its agency,

the suit could not be dismissed on the plea that notice under section 80 CPC was not issued against the functionary. On such a settled proposition

of law no substantial question of law can arise which requires any determination. Question No. 3 formulated by the appellants is whether relief can

be granted in favour of respondent No. 3, when he had not been made any formal application for obtaining the relief either before the trial court or

before the first appellate court. It is an admitted fact that appellants herein themselves had impleaded Sh Tirath Ram Amla as respondent No. 3 in

the memo of appeal filed before the 1st Appellate Court. The appellate court has confirmated the judgment and decree of the trial court. In the

impugned judgment of the first appellate court it is specifically stated that the ejectment of the tenant was sought in respect of quarters No. 4A and

4B in question only. From the record it is found the neither the decree of the trial court nor the decree of the 1st Appellate court has been drawn in

terms of the relevant judgments. Rather, they have been drawn in a casual and a perfunctory manner but that does not mean mat the decree will

become a nullity. The Courts have concurrently decreed the ejectment of the appellants from the quarters in question (No. 4A and 4B) as

delineated in plaint, alongwith the relief of Rs 4200/ as compensation for use and occupation of those quarters and interest at the rate of 12% per

annum. On these clear findings no substantial question of law can arise herein. The appellants themselves had impleaded respondent No. 3 herein

as a party before the first appellate court and now they cannot approbate and reprobate.

7.Question No. 4 as formulated in the memo of appeal is whether respondent No. 3 can execute the decree without making an application before

the learned District Judge. This is a hypothetical question and when will be raised before the executing court can be determined by that court. In

case respondent No. 3 suffers from any legal infirmity or inhibition in getting the decree executed, the appellants are at liberty to Paise such

question before the competent forum but they are precluded to raise such questions by invoking the LPA jurisdiction. On this view of the matter,

we find that no substantial question of law arises in this appeal which requires setting aside the findings of the first appellate court. Accordingly, the

appeal is dismissed.