Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. JAMADAR, J.
Madhuri Doulatram Choitram @ Janu – Appellant
Versus
Lachmandas Tulsiram Nayar (HUF) by and through its Karta and Manager Brijbehari Lachmandas Nayar & Others – Respondents
Writ Petition No. 9267 of 2019 in Revision Application No. 343 of 2018 in Exhibit No. 28 in R.A.E. Suit No. 119/171 of 2011
Decided on : 18-12-2019
Constitution of India - Article 227 – Circumstantial evidence – Tenant - It is pertinent to note here that the plaintiffs have already brought the legal heirs and representatives of the plaintiff on record by virtue of the order below the application - However court do not find any mandatory or compulsory provisions which compel plaintiffs to appoint or bring the Karta of the Hindu Undivided Family on record but other plaintiffs have rightly represented and protect rights of the concern parties including the suit premises for themselves and others. More over order passed by the Appellate Court below application in Appeal is permissive in nature and not the directive by which there is no reason to say that plaintiffs have not followed order passed by Appellate Court below the application in Appeal Per contra, it is the sweet choice or option of plaintiffs being the members of HUF that they may or may not elect or select or appoint new Karta in place of the deceased Karta or continue their family without any Karta – Held, Reverting to the facts of case as respondent are already prosecuting the suit, either in the capacity of crowner or as legal representatives of deceased plaintiff at same time there is a cloud of doubt over the intendment of HUF to prosecute the suit for eviction of the tenant, especially on account of fact that there being material to show that a Karta has indeed been appointed and there is an alleged non-compliance of an order of Appellate Bench in Appeal to bring Karta on record, steps will have been taken to impaled successor Karta in instant suit - It would be in fitness of things to frame and try the issue regarding the tenability of the suit, in event of non-impalement of successor Karta - To this extent observations of the Appellate Bench to the effect that the non-impalement of successor Karta has no bearing whatsoever on tenability of the suit are unsustainable - Question as to whether the HUF as such intends to prosecute the suit for eviction is essentially for the HUF to answer. It would be onerous for defendants to plead and prove that the HUF does not want to prosecute suit – Therefore it would be appropriate to provide an opportunity to HUF to make its stand clear, if it desires to - In the aforesaid peculiar circumstances, in my view, it would be appropriate to provide an opportunity to HUF to bring the successor Karta on record, within a stipulated period, and, in the event of default frame and try issue of tenability of suit for eviction at the instance of HUF, as such, without bringing Karta on record, and plaintiff capacity of co-owners of the demised premises - Petition, therefore deserves to be allowed – Petition allowed
JUDGMENT :
1. This petition under article 227 of the Constitution of India assails the legality, propriety and correctness of the judgment and order dated 12th April 2019 in Revision Application No. 343 of 2018 passed by the Appellate Bench of the Court of Small Causes, Bombay, whereby the revision application preferred by the petitioner against an order passed by the learned Judge, Court of Small Causes, Bombay on an application for dismissal of the suit (Exh.28) in RAE Suit No. 119/171/2011 dated 2nd April 2018, came to be dismissed.
2. The background facts leading to this petition can be stated in brief, as under:-
(b) Thereafter, respondent No.1 again instituted a suit, being RAE Suit No. 119/171/2011, against the petitioner and respondent No.5 on the ground of personal bonafide requirement and alleged sub-letting. The suit was instituted by the HUF through its Karta and Manager Mr.Brijbihari Tulsiram Nayar. Mr. Jagdishmohan Tulsiram Nayar was also arrayed as the plaintiff, with an assertion that the latter was assisting the Karta and Manager in managing the affairs of the said HUF.
(c) Jagdishmohan Lachmandas Nayar; plaintiff No.2, died on 23rd February 2014. The respondent Nos. 2 to 4 herein, claiming to be the legal representatives of the deceased plaintiff No.2, sought their impleadment. The learned Judge, by an order dated 16th September 2016, was persuaded to allow the application and implead the respondent Nos. 2 to 4 as the legal representatives of the deceased plaintiff No.2. The petitioner challenged the said order in Writ Petition No. 557 of 2017.
(d) In the meanwhile, Mr.Brijmohan Lachmandas Nayar, the Karta and Manager of HUF also died on 1st July 2015. Since the successor Karta and Manager of Lachmandas Tulsiram Nayar (HUF) was not impleaded in the suit, the petitioner-defendant filed an application for dismissal of the suit as abated, and, in the alternative, qua the plaintiff No.1 HUF, as there was no Karta to represent the said HUF. The respondent Nos.2 to 4, in the capacity of the legal representatives of the deceased plaintiff No.2, resisted the application.
(e) By an order dated 2nd April 2018, the learned Judge was persuaded to reject the application holding, inter-alia, that the legal representatives of the deceased plaintiff No.2 were already brought on record and, thus, the suit would not abate on account of the death of Karta and Manager of HUF despite the successor Karta of the HUF not being brought on record.
3. The petitioner carried the matter in revision before the Appellate Bench. By the impugned judgment and order, the Appellate Bench was persuaded to reject the application. The observations in paragraph 7 of the impugned judgment spell out the reasons which weighed with the Appellate Bench to repel the contention of the petitioner. As a severe criticism was advanced against those observations, it would be advantageous to extract paragraph No.7 of the impugned judgment. It reads as under:-
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
