IMPORTANT POINT
Appellants have no right to resist execution of consent eviction decree on the ground that the decree is not binding on them since they were not made parties to consent eviction decree.

Headnote:Bombay Rent Act, 1947-Section 5(11)(c)-Tenant to include member of the family of the deceased tenant at the time of his death-Nature of tenancy joint-One impleaded in suit for eviction-Consent decree passed -Whether binding on others? (Yes)-Resistence to execution by them not proper-Appeal dismissed with costs -Case law discussed.
       Held : In the present case we are concerned with clause (c) of sub-section (11) of Section 5 which provides that tenant includes any member of the tenant s family residing with him at the time of his death as may be decided in default of agreement by the Court. There are two requisites which must be fulfilled before a person is entitled to be called tenant under sub-clause (c); first he must be a member of the tenant s family and secondly, he must have been residing with the tenant at the time of his death. Besides fulfilling these conditions he must have been agreed upon to be a tenant by the members of the tenant s family; in default of such agreement the decision of the Court shall be binding on such members. The further question that arises for consideration is whether a member of the family of the original tenant who claims to have been residing with the tenant at the time of his death can resist execution of a decree passed against a member of the tenant s family who undisputedly was accepted by the landlord as a tenant on the death of the original tenant. The question that arises for consideration in such cases is whether the tenancy is joint or separate. In the former case notice on any one of the tenants is valid and a suit impleading one of them as a defendant is maintainable. A decree passed in such a suit is binding on all the tenants. Determination of the question depends on the facts and circumstances of the case. No inflexible rule or straight-jacket formula can be laid down for the purpose. Therefore, the case in hand is to be decided in the facts and circumstances thereof. (Paras 10 and 11)
       Held further : In the case on hand, as noted earlier, on the death of the original tenant Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of his widow Smt. Kishori Kesrinath Juker. It is not the case of the appellant No. 1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed the appellant No.1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the circumstances the decree passed in terms of the compromise entered between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid nor inexecutable against any person who claims to be a member of the family residing with the original tenant, and therefore, a tenant as defined in Section 5(11)(c). The position that follows is that the appellants have no right to resist on the ground that the decree is not binding on them. Further, the trial Court and the appellate court concurrently held that the appellant No. 1 has not been residing in the premises since 1962 i.e. when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant No. 1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. In that view of the matter the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle the appellants have no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court and the High Court rightly confirmed the said order. This appeal being devoid of merit is dismissed with costs which is assessed at Rs. 10,000/-. (Para 16)

JUDGMENT

D.P. Mohapatra, J.-Leave granted.

2. One Chintaman Keshav Juker was the tenant in respect of the suit premises, described as No. R/o 6, Mantri Building, Ground Floor, Bhendi Lane, Gamdevi, Bombay. He died in the year 1958 leaving two sons, Kesrinath Chintaman Juker (appellant No.1 herein) and Ashok Chintaman Juker. Ashok was then a minor. After the death of Chintaman the rent bills (rent receipts) were issued in the name of Kesrinath. Kesrinath died in 1981. Thereafter the rent bills were issued in the name of his widow Smt. Kishori Kesrinath Juker (respondent No. 2 herein). Kishore Pandurang Mantri the landlord (respondent No. 1 herein) filed the suit for eviction against respondent No.2. The parties settled the dispute and the suit was disposed of in terms of the said settlement by the order dated 31.1.1994 which reads as follows:

ORDER

Both plaintiff and defendant alongwith their respective advocates are present. Both plaintiff and defendant admits the contents of the consent terms as well as their respective signatures. Therefore the Consent Terms are taken on record and marked Ex.A."

3. The decree was drawn up incorporating the terms of the settlement. The respondent No.1 filed the petition for execution of the decree dated 31.1.1994 in which a warrant of possession was issued on 23rd November, 1994. The appellants filed objection against the execution of the decree which was registered as Notice No. 66 of 1994.

4. The executing court by the order dated 30th September, 1998 rejected the objection filed by the appellants and dismissed Notice No. 66/94 holding inter alia that the compromise decree is executable against them. The appeal filed by the appellants i.e. Appeal No. 620/1999 was dismissed by the Court of Small Causes, Bombay Bench by order dated 8.9.2000. Civil Writ Petition No. 5768 of 2000 filed by the appellants was dismissed by a Division Bench of the Bombay High Court by the judgment/order dated 6th November, 2000. The said judgment/order is under challenge in this appeal filed by special leave.

5. The case of the appellants, shorn of unnecessary details, is that the appellant No. 1, who is the husband of appellant No. 2 and father of appellant Nos. 3 to 5 became a tenant of the suit premises on the death of his father Chintaman in 1958. Therefore, he was entitled to occupy the premises as a tenant. The respondent No.1 filed a suit for eviction against respondent No.2 Smt. Kishori Kesrinath Juker without impleading him (appellant No.1) as a defendant. In the circumstances the consent decree obtained in the suit is not binding on appellant No.1 and members of his family who are residing with him. They cannot, therefore, be evicted in execution of the said decree.

6. The gist of the case of the respondent No.1 is that on the death of the original tenant Chintaman the rent bills were raised in the name of Kesrinath and after his death in the name of his widow the respondent No. 2. The appellant No.1 was not accepted as a tenant by the landlord. Indeed he has not been residing in the suit premises since 1962. In such circumstances it was not incumbent on the part of the respondent No.1 to implead the appellant No.1 as a defendant in the suit and he has no right to obstruct delivery of possession of the premises in execution of the decree.

7. Sri Dhruv Mehta, learned counsel for the appellants strenuously urged that in view of the provision in Section 5(11)(c) of the Bombay Rent Control Act, 1947 (hereinafter referred to as the Act ) defining the term tenant to mean all the members of the family of the tenant and appellant No.1 who was then a minor was undisputedly residing with his father Chintaman, the original tenant; therefore he was a tenant alongwith his brother Kesrinath and the status continued till the date of the filing of the suit. The landlord having not impleaded appellant No. 1 as a defendant in the suit cannot get delivery of possession of the property in execution of the consent

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2001 Supreme(SC) 881

IMPORTANT POINTAppellants have no right to resist execution of consent eviction decree on the ground that the decree is not binding on them since they were not made parties to consent eviction decree.

Cases Referred (4)

IMPORTANT POINT
Appellants have no right to resist execution of consent eviction decree on the ground that the decree is not binding on them since they were not made parties to consent eviction decree.