The High Court dismissed a revision petition challenging the rejection of a recall and delay condonation application. The lower court held that service on one joint tenant sufficed to bind all co-tenants and noted the petitioner's actual knowledge of the proceedings.
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Court No. - 26
Case :- S.C.C. REVISION DEFECTIVE No. - 35 of 2019
Revisionist :- Poonam Jain Opposite Party :- Ravindra Mittal And 13 Others Counsel for Revisionist :- Irfan Hasan
Hon'ble Dr. Yogendra Kumar Srivastava,J.
Cause shown for delay in filing the revision is sufficient.
Delay in filing the revision is condoned.
Delay Condonation Application is allowed.
Heard Sri Madhur Prasad, holding brief of Sri Irfan Hasan, learned counsel for the revisionist.
The present revision seeks to challenge the order dated 16.03.2019 passed by the Additional District Judge-13, Moradabad in Misc. Case No. 242 of 2018 (Smt. Poonam vs. Ravindra Mittal and others), whereby the recall application along with delay condonation application ( Application No. 3- Ga) has been rejected.
The facts of the case, in brief, are that a S.C.C. Suit No. 09/1979 (Balmukund and others vs. Sumerchandra and others) was filed for arrears of rent and ejectment. The suit was decreed vide judgment dated 04.05.2017. Challenging the aforesaid judgment S.C.C. Revision Nos. 171/2017 and 172/2017 were filed before the High Court and the same were dismissed. The matter was carried over to the Supreme Court by filing Special Leave Petition No. 32207/2017 which was also dismissed by order dated 05.12.2017. Thereafter the decree holder filed Execution Case No. 10 of 2017 before the Additional District Judge, Court No.10, which is pending.
The records of the case indicates that during pendency of the suit the defendant no.3 Pradumn Kumar Jain had died and his legal heirs and representatives were substituted as defendant nos. 3/1, 3/2, 3/3, 3/4, 3/5 and 3/6. Notice to newly substituted defendant no.3/6 Smt. Poonam Jain (revisionist herein) was served through newspaper publication on 01.08.2016 and the notice was held to be sufficient. On 16.11.2016 an order was passed directing the defendant nos. 3/1 to 3/6 to file their additional written statement and pursuant thereto the defendant no. 3/2, 3/3 and 3/4 had jointly filed their additional written statement (Paper No. 224-Ka). The court below has also taken
note of the fact that the revisionist Smt. Poonam Jain is the real sister of defendant nos. 3/1 to 3/5 and on the basis of the same the court has drawn an inference that the revisionist had full knowledge of the pendency of the proceedings. The court below has also held that defendant nos. 3/1 to 3/6 were joint tenants and in view of the same the service of notice upon one would be held to be sufficient upon all the joint tenants. The court below after taking into consideration the aforesaid facts and circumstances has rejected the Application No. 3-Ga filed by the revisionist.
The learned counsel for the revisionist has not disputed the fact that the revisionist is the real sister of other defendants, who had appeared before the court below and had filed their additional written statement. The factum of joint tenancy amongst the co-tenants has also not been disputed. The aforesaid being the position there would a presumption that a joint tenant would represent the interest of all other tenants and the decree passed against a joint tenant would bind other joint tenants also.
Counsel for the revisionist has not been able to point out any material error or illegality in the order passed by the court below.
The revision lacks merit and is, accordingly, dismissed.
Order Date :- 16.4.2019 Imroz
[Dr. Y. K. Srivastava, J.]
2 issues framed by the court
Whether the revisionist could condone delay in filing a revision challenging the rejection of her recall and delay condonation applications.
Whether there was material error or illegality in the lower court's rejection of the recall and condonation applications based on substituted defendants and joint tenancy.
Poonam Jain
Ravindra Mittal
Yogendra Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
