A decree for eviction against one joint tenant is binding on all joint tenants, and a party's failure to contest earlier proceedings precludes them from challenging the decree later.

JUDGMENT :

Rekha Borana, J.

1. The present second appeal has been preferred against the judgment and decree dated 25.11.2022 passed by the Additional District Judge No. 1, Bhilwara in Civil Appeal No. 15/2021 whereby the appeal of the appellant/plaintiff has been dismissed and the judgment and decree dated 06.03.2021 passed by the Additional Civil Judge No. 3, Bhilwara in Civil Original Case No. 166/2006 (CIF No. 1766/2014 has been confirmed.

The learned Trial Court vide judgment and decree dated 06.03.2021 dismissed the suit as preferred by the plaintiff for declaration of decree dated 26.09.2001 passed in Civil Suit No. 330/1992 (68/86) to be null and void.

2. The facts of the case are as under:

(i) In the year 1968, two shops were let out to two brothers Moolchand and Lilaram jointly @ Rs.56/- per month by the joint owners of the property namely, Jaganath, Babulal and Banshilal. When the tenants committed default in payment of rent, a suit (No. 390/1977) (288/1970) for eviction and arrears of rent was filed against both of them jointly by all the three owners.

(ii) During the pendency of the suit, a settlement was arrived into between three owners of the property and the two shops in question came in the share of Babulal. Therefore, the names of the other two owners was prayed to be struck off and the consequential order was also passed.

(iii) In the said suit, written statement was filed by one of the tenants Lilaram only wherein he specifically stated that Moolchand had nothing to do with the rented premise as he was just a helper to Lilaram. Further, Moolchand has left Bhilwara since long and hence, he cannot be termed to be a tenant of the premise in question. It was also the specific averment of Lilaram that the rent of both the shops was being paid by him only and he is only running business in the said shops.

(iv) In terms of the above averments as made by Lilaram in his written statement, an application under Order I Rule 10 of the Code of Civil Procedure was preferred by the plaintiff landlord Baluram with a submission that as Moolchand is no more a tenant in the premise and his whereabouts are not being found since more than last seven years, his name be deleted from the array of defendants. No reply to the said application was filed by any of the defendants. It is relevant to note here that both Lilaram and Moolchand were represented by the same counsel in the said suit.

(v) The application under Order I Rule 10, CPC as preferred by the plaintiff landlord was allowed on 05.03.1984 and the name of Moolchand was ordered to be deleted.

(vi) However, the said suit No. 390/1977 was ultimately withdrawn by the plaintiff landlord on 19.03.1985 with liberty to file a fresh suit.

(vii) Thereafter, a fresh suit was filed by the landlord Baluram for eviction and recovery of arrears of rent impleading only Lilaram. In the said suit, it was specifically averred by the plaintiff that as Moolchand has not been heard of or seen for more than seven years, he no more being a tenant, is not impleaded. However, the fact of Moolchand not been heard from last seven years was denied by the defendant Lilaram.

(viii) Vide judgment and decree dated 26.09.2001, the suit was partly decreed and a decree for eviction was passed only qua the eastern side shop. However, the standard rent qua both the shops was fixed @ Rs.750/- per month each and a decree for arrears of rent was also passed.

(ix) The first appeal preferred against the said judgment by Lilaram was dismissed on 30.10.2003 and the second appeal against the same was dismissed by this Court on 14.01.2004. However, vide the said judgment, the defendant tenant was granted one year time to handover the vacant possession of the east side shop to the landlord. The defendant was directed to file an undertaking to the said effect within two weeks.

(x) In pursuance to the said directions, the tenant Lilaram did file an undertaking before the learned Trial Court on 27.01.2004. Vide the same, he undertook t