Abdul
Razak (D) Thr.Lrs. & Ors. Vs. Mangesh Rajaram Wagle & Ors. [2010] INSC
17 (7 January 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 55 OF 2010
(Arising out of SLP (C) No. 2991 of 2008) Abdul Razak (D) Through L.Rs. and
others ... Appellants Versus Mangesh Rajaram Wagle and others ... Respondents
G.S.
Singhvi, J.
1.
Leave granted.
2.
The appellants are aggrieved by the order of the learned Single
Judge of the Bombay High Court, Goa Bench whereby he allowed the writ petition
filed by respondent Nos. 1 and 2 and granted their prayer for striking off the
additional written statement filed by the appellants after their impleadment as
legal representatives of defendant No.2 - Abdul Razak.
3.
Respondent Nos. 1 and 2 filed suit in the Court of Civil Judge
(Senior Division), Panaji (hereinafter described as `the trial Court') for
declaring them as lawful tenants of suit premises and also for restraining the
defendants - Suresh D. Naik (respondent No.3 herein) and Abdul Razak, who died
during the pendency of the suit and is being represented by his legal representatives
(appellants herein) to remove the lock allegedly put by respondent No.3 on the
suit premises along with materials dumped there. An alternative prayer made by
respondent Nos. 1 and 2 was for recovery of possession of suit premises in case
it was held that they had already been dispossessed. The substance of the case
set up by respondent Nos. 1 and 2 before the trial Court is that the suit
premises were let out to their predecessor Shri Rajaram D. Wagle in 1951 by one
Jussab Abdul Karim at a monthly rent of Rs.15/- which was subsequently
increased to Rs.25/-; that the owner-cum-landlord sold the premises to Abdul
Kadar Haji Jaffar (grandfather of appellant Nos.2, 3, 4 and 6); that Rajaram D.
Wagle died on 29.4.1981 and after his death they have been using the suit
premises for parking their cars; that on 5.1.1992, respondent No.3 broke open
the lock of the suit premises and dumped his goods i.e., boxes of liquor
bottles, but the same were removed by the police on a complaint made by
respondent No.1 in that regard; that on 8.1.1992, respondent No. 3 again broke
open the lock and forcibly occupied the suit premises and this time the police
did not act on the complaint made by them.
4.
In his written statement, respondent No.3 not only denied the
averments contained in the plaint that he had illegally taken possession of the
suit premises after breaking open the locks put by respondent Nos. 1 and 2, but
also pleaded that after being forced to leave Kuwait in the wake of war, he
came to India and is doing business of distribution of liquor in the suit
premises on the basis of permission accorded by defendant No.2 - Abdul Razak,
who was a family friend.
Respondent
No.3 further pleaded that the competent authority granted him excise licence
after being satisfied that the suit premises were suitable for doing business
in liquor.
5.
Abdul Razak (predecessor of the appellants) filed a separate
written statement. He largely denied the averments contained in the plaint and
pleaded that much before his death, Shri Rajaram D. Wagle had voluntarily
surrendered the suit premises and thereafter, respondent No.3 was allowed to
occupy the same for conducting business of distribution of liquor.
6.
Abdul Razak died during the pendency of the suit. Thereupon,
respondent Nos. 1 and 2 filed an application for impleading his widow
(appellant No.1), son and three daughters (appellant Nos. 2, 3 4 and 6) and two
son-in- laws (appellant Nos. 5 and 7) in place of the deceased. Appellant Nos.
3, 4 and 6 objected to the impleadment of the son-in-laws by stating that they
are non- Goans and are not governed by personal law relating to properties in
Goa. They 4 also objected to the impleadment of appellant Nos. 1 and 3 i.e.,
the widow and son of the deceased on the ground that the suit premises had been
allotted to them in the inventory proceedings.
7.
By order dated 10.12.2003, the learned trial Court overruled all
the objections raised by appellant Nos. 3, 4 and 6 and allowed the application
of respondent Nos. 1 and 2 by observing that joining of the widow, son and
son-in- laws of the deceased will not prejudice the daughters and they will be
entitled to take defence suitable to their plea.
8.
In furtherance of the observation made by the trial Court in the
aforementioned order, the appellants filed additional written statement dated
3.3.2004, the sum and substance of which is that in the inventory proceedings
No.80/1989/A held in the Court of Civil Judge (Senior Division) at Panaji after
the death of Abdul Kadar Haji Jaffar and his wife, the suit property was
allotted to their grand-daughters (appellant Nos.3, 4 and 6) because other
heirs did not object to this. The appellants pleaded that in the meeting held
on 10.4.1990, members of the Family Council unanimously agreed for allotment of
the properties and this was approved by the Court vide order dated 26.9.1990. A
reference was also made to Special Civil Suit No. 89/99/B filed by appellant
Nos. 3, 4 and 6 in the trial Court for grant of permanent injunction on the
ground that respondent Nos. 1 and 2 had filed Execution Application No.15/98/A
for being 5 put in possession of the suit premises in execution of order dated
17.4.1997 passed in an application for temporary and mandatory injunction.
According to the appellants, the trial Court allowed the execution application
and the appeal and special leave petition filed by them were dismissed by the
High Court and this Court respectively. In the additional written statement, it
was also averred that son-in-laws of late Abdul Razak have no right, title or
interest in the suit property and, therefore, they cannot be treated as his
legal representatives. The impleadment of appellant No.2 was also questioned on
the premise that he has no right in the suit property.
9.
After filing of the additional written statement, the trial Court
framed the following additional issues:
1.
Whether the plaintiffs prove that defendants illegally damaged and destroyed
the two ramps existing adjacent to the entrance of the suit premises?
2.
Whether the plaintiffs prove that the suit filed by them for declaration of
tenancy right is maintainable for want of the owners of the suit premises?
3.
Whether the plaintiffs prove that Sajeeda Razak, Matheen I Saint, Mohammad Arif
Razak Ajaz Ahmed are legal representatives of deceased defendant No.2 impleaded
in the suit as defendants 2(i), 2(ii), 2(v) and 2(vii) respectively.
What
relief? What order?
10.
Respondent Nos. 1 and 2 did not object to the taking on record of
the 6 additional written statement filed by the appellants or framing of the
additional issues and led evidence, the recording of which was completed during
2006.
Thereafter,
the appellants produced their evidence. When the case was fixed for
cross-examination of appellant No.3, who is one of the witnesses cited by the
appellants, respondent Nos. 1 and 2 filed application dated 9.10.2007 for
striking off the additional written statement by asserting that the legal
representatives of the deceased defendant No.2 do not have right under the Code
of Civil Procedure (CPC) to file such written statement and, in any case, they
cannot be allowed to raise new plea about their title to the suit premises.
Respondent Nos. 1 and 2 further pleaded that the additional written statement
is liable to be struck off because before filing the same, the appellants did
not seek leave of the court. In their reply, the appellants pleaded that the
additional written statement was filed with a view to bring on record the facts
relating to the inventory proceedings and the same cannot be struck off because
the applicants have failed to make out a case for exercise of power by the
court under Order VI Rule 16 CPC.
11.
The trial Court dismissed the application of respondent Nos. 1 and
2 by observing that leave of the Court will be presumed to have been granted
because the additional written statement was filed on 3.3.2004 and respondent
Nos. 1 and 2 had not objected to the same. As regards their plea that new or
inconsistent case was sought to be set up by the appellants, the trial Court 7
observed that this point can be considered at the time of deciding the case on
merits. The trial Court then referred to Order VI Rule 16 and held that
respondent Nos. 1 and 2 have not been able to make out a case for striking off
the additional written statement.
12.
Respondent Nos. 1 and 2 challenged the order of the trial Court in
W.P. No. 58/2008. By the impugned order, the learned Single Judge allowed the
writ petition and held that the legal representatives of deceased defendant
No.2 could have taken a plea which was appropriate to their character as legal
representatives, but they were not entitled to take a plea derogatory to the
plea already taken. The learned Single Judge further held that the trial Court
was not justified in dismissing the application on the ground of delay, which
could have been compensated by imposing cost.
13.
We have heard learned counsel for the parties. Three questions
which merit consideration by this Court are - (i) What is the effect of delay
in filing the application by respondent Nos. 1 and 2 for striking off the
additional written statement? (ii) Whether the High Court could pass an order
for striking off the additional written statement despite the fact that
respondent Nos. 1 and 2 failed to make out a case for exercise of power by the
court under Order VI Rule 16 CPC? (iii) Whether the High Court was justified in
setting aside the order of the trial Court without being satisfied that the
same was vitiated by an error of 8 jurisdiction or an error of law apparent on
the face of the record and that such error resulted in substantial failure of
justice? Re: (i):
14.
Undisputedly, the additional written statement was filed on
3.3.2004 and the same was taken on record without any objection from respondent
Nos. 1 and 2, who did not even seek leave of the court to file further
pleadings in the light of the additional written statement. Although, the
parties have not furnished details of the proceedings of the case for next
about two years, this much is clear that respondent Nos.1 and 2 led evidence in
support of their case and completed the same in 2006. In the absence of any
contrary evidence, it can be reasonably and legitimately presumed that
respondent Nos. 1 and 2 must have produced their evidence keeping in view the
pleadings contained in the additional written statement. They filed application
for striking out the additional written statement after a long time gap of
three years and six months without explaining as to why they did not object to
the taking on record of the additional written statement and framing of
additional issues in 2004 and why they chose to lead evidence knowing fully
well that after their impleadment as legal representatives of Abdul Razak,
appellant Nos. 3, 4 and 6 had pleaded that they had become owners of the
property by virtue of the orders passed in the inventory proceedings. The
learned Single Judge casually brushed aside and rejected the plea of the
appellants that the application filed by respondent Nos. 1 and 2 for striking
off the additional written statement was highly belated and no 9 explanation
worth the name had been offered for the same by observing that the trial Court
could have compensated them by imposing cost. In our view, the learned Single
Judge should have seriously examined the issue of delay in the backdrop of the
facts that respondent Nos. 1 and 2 did not object to the taking on record the
additional written statement or framing of additional issues and led their
evidence and further that the application was filed after almost one year of
completion of their evidence. The observation made by the learned Single Judge
that the proceedings of the suit will be delayed if the legal representatives
of the deceased defendant are allowed to take the plea based on their title is
neither here nor there. It is true that the suit filed by respondent Nos. 1 and
2 is pending for last about 17 years, but there is nothing on record to show
that the appellants or their predecessors are responsible for the delay. The
death of Abdul Razak was not a predictable event, the happening of which could
be averted by the parties or the court. In any case, the appellants cannot be
blamed for the delay, if any, in the trial of the case. As a matter of fact,
respondent Nos. 1 and 2 have delayed the proceedings for over two years by
filing frivolous application for striking off the additional written statement
which, as mentioned above, was taken on record in March, 2004.
Re: (ii):
15.
Order VI Rule 16 CPC which empowers the Court to strike out the
pleadings reads thus:
10
"Striking out pleadings. - The Court may at any stage of the proceedings
order to be struck out or amended any matter in any pleading-- (a) which may be
unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to
prejudice, embarrass or delay the fair trial of the suit, or (c) which is
otherwise an abuse of the process of the court."
16.
A reading of the plain language of the above reproduced provisions
makes it clear that the court's power to strike out any pleading at any stage
of the proceedings can be exercised in either of the three eventualities i.e.,
where the pleadings are considered by the court unnecessary, scandalous,
frivolous or vexatious; or where the court is satisfied that the pleadings tend
to prejudice, embarrass or delay the fair trial of the suit or which is
otherwise considered as an abuse of the court.
17.
Normally, a court cannot direct or dictate the parties as to what
should be their pleading and how they should prepare their pleadings. If the
parties do not violate any statutory provision, they have the freedom to make
appropriate averments and raise arguable issues. The court can strike off the
pleadings only if it is satisfied that the same are unnecessary, scandalous,
frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial
of the suit or the court is satisfied that suit is an abuse of the process of
the court. Since the striking off pleadings has serious adverse impact on the
rights of the concerned party, the power to do so has to be exercised with
great care and circumspection. In 11 Knowles v. Roberts (1888) 38 Ch D, 263,
Boven, L.J. Observed:
"It
seems to me that the rule that the Court is not to dictate to parties how they
should frame their case, is one that ought always to be preserved sacred. But
that rule is, of course, subject to this modification and limitation, that the
parties must not offend against the rules of pleading which have been laid down
by the law; and if a party introduces a pleading which is unnecessary, and it
tends to prejudice, embarrass and delay the trial of the action, it then becomes
a pleading which is beyond his right. It is a recognized principle that a
defendant may claim ex debito justitiae to have the plaintiff's claim presented
in an intelligible form, so that he may not be embarrassed in meeting it; and
the Court ought to be strict even to severity in taking care to prevent
pleadings from degenerating into the old oppressive pleadings of the Court of
Chancery."
18.
The above reproduced observations have been quoted with approval
in Sathi Vijay Kumar v. Tota Singh and others (2006) 13 SCC 353. In that case,
the order passed by the High Court deleting paragraphs 11, 12 and 13(a) from
the election petition filed by the appellant was questioned before this Court
on the ground that the case does not fall within the ambit of Order VI Rule 16.
This
Court first held that the provisions of Order VI Rule 16 CPC are applicable to
election petitions. The Court then referred to the earlier judgments in Roop
Lal Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487, K.K. Modi v. K.N. Modi
(1998) 3 SCC 573, Union Bank of India v. Naresh Kumar (1996) 6 SCC 660 and held
that the power to strike out pleading is extraordinary in nature and must be
exercised by the Court sparingly and with extreme care, caution and
circumspection.
19.
In this case, the learned trial Court did make a reference to the
provisions of Order VI Rule 16 and held that the application made by the
plaintiffs (respondent Nos. 1 and 2 herein) does not fall in either clauses of
Rule 16. The learned Single Judge of the High Court did not even bother to
notice Order VI Rule 16 what to say of considering its applicability to the
pleadings contained in the additional written statement and granted the prayer
of respondent Nos. 1 and 2 by assuming that the plea raised by the appellants
was inconsistent with the defence set up by their predecessor-in-interest. In
our opinion, the learned Single Judge did not have the jurisdiction to direct
striking off the additional written statement without being satisfied that
respondent Nos. 1 and 2 were able to make out a case for exercise of power by
the court under either of three clauses of Order VI Rule 16 CPC.
Re: (iii)
:
20.
Although, from the record produced before this Court it is not
clear whether respondent Nos. 1 and 2 had filed writ petition under Article 226
of the Constitution of India or they had invoked supervisory jurisdiction of
the High Court under Article 227 of the Constitution, but a reading of the
impugned order does not leave any manner of doubt that while granting relief to
respondent Nos.
1 and 2,
the learned Single Judge did not keep in mind the guiding principles laid down
by this Court for exercise of power under Articles 226 or 227 of the
Constitution. It seems to us that the learned Single Judge decided the matter
by 13 assuming that he was hearing an appeal against the order of the trial
Court. If this was not so, the learned Single Judge was duty bound to first
consider whether he was called upon to exercise power under Article 226 of the
Constitution of India or under Article 227 thereof. If respondent Nos. 1 and 2
had invoked the High Court's jurisdiction under Article 226, then the learned
Single Judge ought to have considered whether the trial Court committed a
jurisdictional error by refusing to strike off the additional written statement
filed by the appellants or it was a case of failure on the part of the trial
Court to exercise the power vested in it under Order VI Rule 16 CPC or the
order under challenge was vitiated by an error of law apparent on the face of
the record or there was violation of the rules of natural justice. In either
case, the learned Single Judge was also required to consider whether there has
been substantial failure of justice or manifest injustice has been caused to
respondent Nos. 1 and 2 on account of the trial Court's refusal to strike off
the additional written statement. These are the parameters laid down by this
Court in Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477. If the petition
filed by respondent Nos. 1 and 2 was under Article 227 of the Constitution of
India, then the learned Single Judge should have taken note of the often quoted
judgment in Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675, in which a
two-Judge Bench, after threadbare analysis of Articles 226 or 227 of the
Constitution and considering large number of judicial precedents on the
subject, recorded the following conclusions:
14
"(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115
of the Code of Civil Procedure cannot and does not affect in any manner the
jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2)
Interlocutory orders, passed by the courts subordinate to the High Court,
against which remedy of revision has been excluded by CPC Amendment Act 46 of
1999 are nevertheless open to challenge in, and continue to be subject to,
certiorari and supervisory jurisdiction of the High Court.
(3)
Certiorari, under Article 226 of the Constitution, is issued for correcting
gross errors of jurisdiction i.e. when a subordinate court is found to have
acted (i) without jurisdiction -- by assuming jurisdiction where there exists
none, or (ii) in excess of its jurisdiction -- by overstepping or crossing the
limits of jurisdiction, or (iii) acting in flagrant disregard of law or the
rules of procedure or acting in violation of principles of natural justice
where there is no procedure specified, and thereby occasioning failure of
justice.
(4)
Supervisory jurisdiction under Article 227 of the Constitution is exercised for
keeping the subordinate courts within the bounds of their jurisdiction. When a
subordinate court has assumed a jurisdiction which it does not have or has
failed to exercise a jurisdiction which it does have or the jurisdiction though
available is being exercised by the court in a manner not permitted by law and
failure of justice or grave injustice has occasioned thereby, the High Court
may step in to exercise its supervisory jurisdiction.
(5) Be it
a writ of certiorari or the exercise of supervisory jurisdiction, none is
available to correct mere errors of fact or of law unless the following
requirements are satisfied: (i) the error is manifest and apparent on the face
of the proceedings such as when it is based on clear ignorance or utter
disregard of the provisions of law, and (ii) a grave injustice or gross failure
of justice has occasioned thereby.
(6) A
patent error is an error which is self-evident i.e. which can be perceived or
demonstrated without involving into any lengthy or complicated argument or a
long-drawn process of reasoning.
Where two
inferences are reasonably possible and the subordinate court has chosen to take
one view, the error cannot be called gross or patent.
15 (7)
The power to issue a writ of certiorari and the supervisory jurisdiction are to
be exercised sparingly and only in appropriate cases where the judicial
conscience of the High Court dictates it to act lest a gross failure of justice
or grave injustice should occasion.
Care,
caution and circumspection need to be exercised, when any of the abovesaid two
jurisdictions is sought to be invoked during the pendency of any suit or
proceedings in a subordinate court and the error though calling for correction
is yet capable of being corrected at the conclusion of the proceedings in an
appeal or revision preferred thereagainst and entertaining a petition invoking
certiorari or supervisory jurisdiction of the High Court would obstruct the
smooth flow and/or early disposal of the suit or proceedings. The High Court
may feel inclined to intervene where the error is such, as, if not corrected at
that very moment, may become incapable of correction at a later stage and
refusal to intervene would result in travesty of justice or where such refusal
itself would result in prolonging of the lis.
(8) The
High Court in exercise of certiorari or supervisory jurisdiction will not
convert itself into a court of appeal and indulge in reappreciation or
evaluation of evidence or correct errors in drawing inferences or correct
errors of mere formal or technical character.
(9) In
practice, the parameters for exercising jurisdiction to issue a writ of
certiorari and those calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction exercised by the High Courts in
India unlike English courts has almost obliterated the distinction between the
two jurisdictions.
While
exercising jurisdiction to issue a writ of certiorari, the High Court may annul
or set aside the act, order or proceedings of the subordinate courts but cannot
substitute its own decision in place thereof. In exercise of supervisory
jurisdiction the High Court may not only give suitable directions so as to
guide the subordinate court as to the manner in which it would act or proceed
thereafter or afresh, the High Court may in appropriate cases itself make an
order in supersession or substitution of the order of the subordinate court as
the court should have made in the facts and circumstances of the case."
21.
We regretfully note that while deciding the writ petition filed by
16 respondent Nos. 1 and 2, the learned Single Judge did not keep in mind the
principles laid down by this Court in the aforementioned two judgments and
decided the same as if he was exercising appellate jurisdiction of the High
Court.
There
have been several other instances in which different High Courts have passed
orders in exercise of power under Articles 226 or 227 of the Constitution of
India disregarding the limitations identified and indicated by this Court in
several decisions on the exercise of that power. We hope and trust that in
future the High Courts would keep in view the limitations of certiorari
jurisdiction/supervisory jurisdiction and refrain from deciding the writ
petitions filed under Article 226 or petitions/applications filed under Article
227 of the Constitution as if they are adjudicating appeals filed against the
orders of the lower courts or other judicial/quasi judicial bodies/authorities.
22.
Before concluding, we deem it appropriate to consider the argument
of the learned counsel for respondent Nos. 1 and 2 that the pleadings contained
in the additional written statement filed by the appellants were inconsistent
with and beyond the scope of the defence set up by Abdul Razak in the original
written statement and the trial Court was duty bound to discard the same in
view of the provision contained in Order 22 Rule 4 CPC and the judgments of
this Court in J.C. Chatterjee v. Sri Kishan (1972) 2 SCC 461, Bal Kishan v. Om
Parkash (1986) 4 SCC 155 and Vidyawati v. Man Mohan (1995) 5 SCC 431. In our
opinion, the argument of the learned counsel is 17 meritless and deserves to be
rejected. In the plaint filed by them, respondent Nos. 1 and 2 did not make a
mention of the inventory proceedings held after the death of Abdul Kadar Hazi
Jaffar and his wife and order dated 26.9.1990 passed by the trial Court. In his
written statement, Abdul Razak pleaded that before his death, the tenant Shri
Rajaram D. Wagle had surrendered possession of the premises to him and that the
plaintiffs had nothing to do with the suit premises.
He
further pleaded that the suit premises were given to defendant No.2 for
conducting business of distribution of liquor. There is nothing in the written
statement of Abdul Razak from which it can be inferred that he has claimed
ownership over the suit property. After they were brought on record as legal
representatives of late Abdul Razak, the appellants filed additional written
statement incorporating therein the plea that the suit property had become
subject matter of inventory proceedings No.80/89/A and the same was allotted to
the daughters of Abdul Razak i.e. appellant Nos.3, 4 and 6. The appellants also
pleaded that in the meeting of the Family Council held on 10.4.1990, a
unanimous decision was taken for allotment of the properties and the same was
approved by the trial Court vide order dated 26.9.1990. According to the
appellants, Abdul Razak was looking after the suit property because at the time
of death of his parents, appellant Nos. 3, 4 and 6 were minor. Therefore, it
cannot be said that the plea raised by the appellants is inconsistent with the
averments contained in the original written statement by Abdul Razak. Order 22
Rule 4(1) and (2) CPC on which reliance has been placed 18 by learned counsel
for respondent Nos. 1 and 2 reads as under:
"4.
Procedure in case of death of one of several defendants or of sole
defendant.--(1) Where one of two or more defendants dies and the right to sue
does not survive against the surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the right to sue survives, the
court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall proceed
with the suit.
(2) Any
person so made a party may make any defence appropriate to his character as
legal representative of the deceased defendant."
23.
In J.C. Chatterjee's case, this Court interpreted the above
reproduced provision and held:
Under
sub-clause (ii) of Rule 4 of Order 22 of the Civil Procedure Code any person so
made a party as a legal representative of the deceased, respondent was entitled
to make any defence appropriate to his character as legal representative of the
deceased respondent. In other words, the heirs and the legal representatives
could urge all contentions which the deceased could have urged except only
those which were personal to the deceased. Indeed this does not prevent the
legal representatives from setting up also their own independent title, in
which case there could be no objection to the court impleading them not merely
as the legal representatives of the deceased but also in their personal
capacity avoiding thereby a separate suit for a decision on the independent
title.
24.
In Bal Kishan's case, the proposition laid down in J.C.
Chatterjee's case was reiterated, but its width was limited by observing that
the same would apply only to those cases where the Court hearing the case has
jurisdiction to try 19 the issues relating to independent title also. The facts
of Bal Kishan's case were that respondent No. 1 therein filed a petition for
eviction of the tenant by alleging that the latter had sublet the premises
without his consent. During the pendency of the petition, the tenant Musadi Lal
died. Thereupon, the appellant Bal Kishan filed an application for being
brought on record as legal representative of the deceased. The Rent Controller
allowed the application.
Thereafter,
the appellant filed additional written statement asserting therein that the
premises in question being residential and commercial, the legal heir of the
tenant could not be treated as a tenant as defined under Section 2(h) of the
Haryana Urban (Control of Rent and Eviction) Act, 1973 and that possession of
such legal heir of the tenant would be that of a trespasser. He accordingly
prayed for dismissal of the eviction petition. The Rent Controller rejected the
appellant's plea and allowed the eviction petition by holding that Musadi Lal
had sublet the premises to Med Ram without his consent. The appeal and revision
filed by the appellant were dismissed by the Appellate Authority and the High
Court respectively. Before this Court, the appellant relied upon the ratio of
J.C. Chatterjee's case and argued that he was entitled to raise an additional
plea that the eviction petition was not maintainable. While rejecting this
plea, this Court held:
But in
the instant case the appellant cannot claim the benefit of the above decision
for two reasons. First, the appellant had not been brought on record as a
respondent in the eviction petition in his personal capacity but had been
brought on record only as the legal representative of Musadi Lal. Secondly, in
the circumstances of this 20 case, even if a prayer had been made to bring the
appellant on record in his personal capacity, the Rent Controller could not
have allowed the application and permitted him to raise the plea of independent
title because such a plea would oust the jurisdiction of the Rent Controller to
try the case itself. The observations made in the Jagdish Chander Chatterjee
case have to be confined to only those cases where the court hearing the case
has jurisdiction to try the issues relating to independent title also. The Rent
Controller, who had no jurisdiction to pass the decree for possession against a
trespasser could not have, therefore, impleaded the appellant as a respondent
to the petition for eviction in his independent capacity.
(emphasis
supplied)
25.
In Vidyawati's case, this Court considered the question whether a
person impleaded as a legal representative of the deceased defendant can independently
claim title to and interest in the property under a will. It was contended by
the appellant that claim of the original defendant and that of the legal
representative are founded on the will executed by Champawati and the courts
below were not right in refusing to permit her to file additional written
statement. While approving the view taken by the courts below, this Court
observed "whether the petitioner has independent right, title and interest
de hors the claim of the first defendant is a matter to be gone into at a later
proceeding.
It is
true that when the petitioner was impleaded as a party-defendant, all rights
under Order XXII Rule 4(2), and defences available to the deceased defendant
became available to her. In addition, if the petitioner had any independent
right, title or interest in the property, then she had to get herself impleaded
in the suit as a party-defendant. Thereafter, she could resist the claim made
by the 21 plaintiff or challenge the decree that may be passed in the suit. For
taking this view, the Court relied upon the judgments in J.C. Chatterjee's case
and Bal Kishan's case.
26.
The judgments of Bal Kishan's case and Vidyawati's case are
clearly distinguishable. In the first case, the earlier judgment in J.C.
Chatterjee's case, which substantially supports the appellants was
distinguished on the ground that the plea raised by the impleaded legal
representative of the tenant was inconsistent with his defence and, if
accepted, the same would result in ouster of the jurisdiction of the Rent
Controller. In the second case also, the Court found that the plea raised by
the appellant, who was impleaded as legal representative of the defendant that
she had independent title under the will executed by Champawati was not in consonance
with the plea taken by the original defendant. However, as discussed in the
earlier part of the judgment, the claim made by the appellants is in no way
inconsistent with or derogatory to the defence set up by Abdul Razak. In any
case, once the additional written statement filed by the appellants was taken
on record without any objection by respondent Nos. 1 and 2, who also led their
evidence keeping in view the pleadings of the additional written statement, the
High Court was not at all justified in allowing the application filed for
striking off the additional written statement and that too without even
adverting to Order VI Rule 16 CPC and considering whether respondent Nos. 1 and
2 were able to make out a case for 22 exercise of power by the court under that
provision.
27.
In the result, the appeal is allowed. The impugned order of the
High Court is set aside and the one passed by the trial Court is restored.
Respondent Nos. 1 and 2 shall pay cost of Rs.25,000/- to the appellants for
burdening them with unnecessary litigation.
........................................J. [G.S. Singhvi]
......................................J.
Back