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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
R.C. Gandhi,G.D. Sharma, JJ.
Union Of India - Appellant
Versus
Hari Tara Charitable Trust, Jammu - Respondent
LPA (C) No. 4/1996
Decided On : 20 November, 1998
HOUSES AND SHOPS RENT CONTROL ACT - SECTION 80 CPC - SECTION 106 TRANSFER OF PROPERTY ACT - NOTICE TO UNION OF INDIA - COMPOSITE NOTICE - VALIDITY - SERVICE OF NOTICE ON FUNCTIONARIES OF UNION OF INDIA - RELIEF TO THIRD PARTY - EXECUTION OF DECREE BY THIRD PARTY - SUBSTANTIAL QUESTION OF LAW.
Fact of the Case:
Hari Tara Charitable Trust filed a suit for ejectment against the appellants from four quarters. The tenancy of the quarters was terminated by giving notice under section 80 of the Code of Civil Procedure. The appellants failed to vacate the quarters and the suit was filed. During the trial, two of the quarters were purchased by Sh Tirath singh and he was impleaded as a party. The trial court passed a decree in respect of all the four quarters but in the decree-sheet, the name of plaintiff No. 2 (Sh Tirath Singh) was not shown. Respondent No.1 sold the remaining two quarters in question to 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 the judgment and decree passed in respect of quarters No. 4-A and 4-B and impleaded the vendeo Sh Tirath Ram Amla as respondent No.3 in the name of appeal.
Finding of the Court:
The court held that a composite notice can be given under section 80 CPC and section 106 TPA. The court also held 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. The court further held that the appellants themselves had impleaded respondent No. 3 herein as a party before the first appellate court and now they cannot approbate and reprobate.
Issues: 1. Whether a composite notice under section 80 CPC and under section 106 of the Transfer of property Act will meet the requirements of law? 2. 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? 3. 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 4. 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?
Ratio Decidendi: The court relied on the following principles of law: 1. A composite notice can be given under section 80 CPC and section 106 TPA. 2. 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. 3. The appellants themselves had impleaded respondent No. 3 herein as a party before the first appellate court and now they cannot approbate and reprobate.
Final Decision: The court dismissed the appeal.
1. This appeal (LPA) is directed against the judgment and decree dated December 27.1995 passed in civil 1st Appeal (CIA No. 521 94) by the learned Single Judge whereby the judgment and decree dated 6-7-1994 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. 3-A, 3-B, 4-A and 4-B. These quarters are known as Manda quarters. The lease of quarter No. 3-A had commenced from 10-8-1965, of quarter No. 3-B from 17-8-1965, of Quarter No. 4-A from 1-7-1965 and Quarter No. 4-B from 16-11-1967. 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. 3-A terminated on 9-9-1984; of 3-B on 16-9-1984, of 4-A on 30-9-1984 and of 4-B on 15-9-1984 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 23-3-1985 filed the suit in this court which on 19-5-1988 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 re-transferring 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, 3-A and 3-B 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 16-5-1994, 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 decree-sheet, 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, 4-A and 4-B 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 the judgment and decree passed in respect of quarters No. 4-A and 4-B 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:
1. Whether the present suit has been filed by the proper and competent person and as such, he is competent to sigh the plaint? OPD
2. Whether the suit suffers from the vice of the mis-joinder of causes of actions, if so, what is its effect? OPD
3. Whether the suit is not maintainable as there are different tenancies? OPD
4. Are the defendants entitled to the benefits of Houses and Shops Rent Control Act, if so how? OPD
5. Is the income of the defendants not more than Rs. 40,000/- per year? OPD
6. Whether a valid and legal notice had been served upon the defendants in respect of tenancy?
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