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2017 Supreme(Gau) 844
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
Radheshyam Jalan – Petitioner
Versus
M/s. Triplex and Others – Respondent
CRP No. 520 & 526 of 2015
Decided On : 14-09-2017
For the Petitioner:Mr. G.N. Sahewalla, Senior Advocate, Ms. B. Sarma.
For the Respondent:Mr. Kamal Agarwal, Senior Advocate, Mr. AK Gupta.
Headnote:
Constitution of India – For the sake of convenience – Learned Senior counsel for the petitioner as well as, learned Senior counsel assisted by, learned counsel appearing for the respondents – Petitioner- landlord is the common petitioner in both these two revisions, which arise from the proceedings of T.S – For the sake of convenience, the respondents herein are hereinafter referred as defendant per cause title of the amended plaint of the suit, except for referring them as respondents as per cause title – Petitioner herein filed, which was filed for evicting the defendant Triplex and defendant – By virtue of order passed by this Court in CRP was impleaded as defendant in the suit – Said suit was decreed by judgment and decree passed by the learned Munsiff No. 2, Dibrugarh –Held, Suit and the plaintiff cannot be non-suited on the ground of non-joinder of Smt. Rita Lalwani as one of the defendants in the suit died, the plaintiff had been treating Rakesh Kumar Achantani as the proprietor of defendant No.1 firm. Yet by ignoring all these, the learned first appellate court is found to have substituted its view over the judgment passed by the learned trial court, which is not sustainable by any evidence on record – Learned first appellate court failed to exercise jurisdiction to appreciate exhibits filed by defendant No.3, which though contrary to the pleadings, is sufficient to disprove the plea of the defendant was the original tenant and that the tenancy was inherited by the defendants No.2, 3 and Smt. Rita Lalwani – Revision stands allowed.
Heard Mr. G.N. Sahewalla, the learned Senior counsel for the petitioner as well as Mr. K. Agarwal, learned Senior counsel assisted by Mr. A.K. Gupta, learned counsel appearing for the respondents.
2. The petitioner- landlord is the common petitioner in both these two revisions i.e. CRP 520/2015 and CRP 526/2015, which arise from the proceedings of T.S. No. 2/2008.
3. For the sake of convenience, the respondents herein are hereinafter referred as defendant per cause title of the amended plaint of the suit, except for referring them as respondents as per cause title for CRP 520/15.
4. The petitioner herein filed TS No.2/2008, which was filed for evicting the defendant No. 1 i.e. M/s. Triplex and defendant No. 2 i.e. Shri Rakesh Kumar Achantani. By virtue of order dated 22.09.2010 passed by this Court in CRP 372/2010, Smti. Rekha Devi Achantani was impleaded as defendant No. 3 in the suit. The said suit was decreed by judgment and decree dated 21.11.2012 passed by the learned Munsiff No. 2, Dibrugarh.
5. The defendant No. 2, namely, Rakesh Kumar Achantani preferred an appeal against the said judgment and decree passed in TS 2/2008, which was registered as T.A. No. 7/2013. The defendants No.1 and 3, namely, M/s. Triplex and Smt. Rekha Devi Achantani filed a separate appeal against the same decree, which was registered as T.A. No. 4/2013.
6. Both the appeals were analogously heard and both the appeals were allowed by virtue of judgment and decree dated 10.09.2015 passed by the learned Civil Judge, Dibrugarh, by reversing the judgment and decree passed by the learned trial court. Resultantly, the said TS No.2/2008 was dismissed on the ground of non-joinder of one Rita Lalwani, the daughter of the defendant No. 3, who is also one of the representatives of the predecessor in interest of defendant No. 2 and 3, Late Motilal Achantani.
7. Therefore, the petitioner-plaintiff had filed two revisions i.e. CRP 520/2015 and CRP 526/2015 to challenge the first appellate judgment and decree passed therein. The suit premises involved in T.S. No. 2 of 2008 is all that Single storied C.I. sheet roofed premises measuring 23 feet X 30 feet approx., having mezzanine floor between the pucca floor and C.I. Sheet roof, having three sides half brick walls and half C.I. Sheet walls, wooden doors on the front included in Municipal Holding No.103, Ward No. 11 of Dibrugarh Municipal Board, having a monthly rent of Rs.1,000/- per month.
8. As per the statements made in the plaint, it was projected that the defendant No. 2 was the proprietor of defendant No. 1 firm had been occupying the suit premises from 01.06.1994 and the defendants paid the monthly rent at the rate of Rs.1,000/- per month to the plaintiff upto the month of October, 2004 vide rent receipt dated 02.11.2004 and since November, 2004, despite repeated demands and personal calls they neglected to pay rent. The counter foils of the first and last rent receipt for June 1994 and October, 2004 were filed along with the plaint as plaintiff document No. 1 and 2 respectively. It was claimed that the plaintiff had obtained due permission for raising multi storied construction on three sides (east, west and south) of the suit premises and therefore, stated that constructions were already raised on the western and southern side and they were yet to start construction on the eastern side and therefore, the plaintiff intended to raise construction on eastern side on the premises and also the suit premises. The advocates’ notice for termination of tenancy w.e.f. 01.04.2005 and ejectment notice dated 07.03.2005 was sent by registered post asking the defendants to vacate and to deliver khas, vacant and peaceful possession of the schedule premises within 31.03.2005 or that they would be liable for damages at the rate of Rs.100/- per diem since 01.04.2005 till evicted. In the plaint it was claimed that the defendant No. 3 was not the tenant under the plaintiff and did not pay any money to the plaint
