Quashed

Harpyari Bai and Ors. v. Ballabhdas

Rajasthan HC14 Dec 2021CSA/410/1999

Case brief

AI extract

What is this about?

This second appeal challenged a decree for eviction and rent recovery. The High Court held that subordinate courts failed to decide two substantial issues going to the root of the case regarding the existence of a landlord-tenant relationship and the representative capacity of the plaintiff. Consequently, the judgment was quashed, and the matter was remitted to the trial court for a fresh trial on

What did the court decide?

Impugned judgments and decree of courts below quashed and set-aside; matter remitted to trial court to decide issues no. 1 and 2 afresh on merits.

Harpyari Bai and Ors. Vs Ballabhdas — Landlord and Tenant | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 410/1999

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Harpyari Bai Wd/o Radhey Shyam

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Kusum Kumari D/o Radhey Shyam

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Rekha D/o Shri Radhey Shyam

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Gopal S/o Shri Radhey Shyam All R/o Dug, Distt. Jhalawar

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...Defendants/Appellants

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Versus

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Ballabhdas S/o Ram Chander (since deceased)

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Girraj Kishore Jaju S/o Ballabhdas R/o Dug Bus Stand, Dug, Distt. Jhalawar

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Purshottam Das Jaju S/o Ballabh Das, R/o Gangdhar Gate, Dug, Distt. Jhalawar

¶12

Krishankant Jaju S/o Ballabh Das, C/o Panchayat Samiti, Dug, Distt. Jhalawar

¶13

Shivnarain Jaju S/o Ballabhdas, Ganesh Chauk, Dug, Distt. Jhalawar

¶14

Ganga Vishan Jaju C/o Audiyogik Vyavsayik Bank, Sheopur (Madhya Pradesh)

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----Respondents/Plaintiffs

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For Appellant(s) : Mr. Sanjay Mehrishi, Advocate For Respondent(s) : Mr. R.K. Daga, Advocate

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HON'BLE MR. JUSTICE PRAKASH GUPTA

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Judgment

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14/12/2021

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This second appeal has been filed by the appellants - defendants (for short, 'the defendants') under Section 100 CPC against the judgment and decree dated 5.7.1999 passed by Addl. District Judge, Jhalawar (for short, 'the appellate court') in Civil Appeal No. 34/1999, whereby the appellate court dismissed the

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(2 of 5)

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[CSA-410/1999]

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appeal and affirmed the judgment and decree dated 8.10.1987 passed by ACJM, First Class, Bhawani Mandi (for short, 'the trial court') in Civil Suit No. 37/1980 decreeing the respondentplaintiff's (for short, 'the plaintiffs') suit for eviction and recovery of rent.

¶24

Facts of the case are that the original plaintiff Ballabh Das, being the President of Maheshwari Samaj, Dug, filed a suit against the defendants for eviction and recovery of rent mentioning therein that the suit shop was taken on rent by Radhey Shyam husband of defendant no.1 on 4.12.1965 in the monthly rent of Rs. 15/-, for which a rent deed was executed on a 50/- paise stamp paper. According to the terms of the rent deed, the suit shop was given on rent for a year and on default of payment of rent for three months, the plaintiff was given the right to get the suit shop evicted. After the death of Radhey Shyam, the suit shop is lying vacant, of which no maintenance is being done. Thus, the suit shop is in dilapidated condition. By the registered notice dated 6.1.1980, the tenancy was said to be terminated and the due rent was demanded from the defendants, but the defendants neither paid the rent nor vacated the suit shop. For this reason, the suit was filed.

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The defendants put in appearance and filed the written statement. It was submitted that the plaintiff Ballabh Das is not the President of Maheshwari Samaj, Dug. The defendants also denied about the relationship of landlord and tenant between the plaintiff and the defendants.

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On the basis of pleadings of the parties, necessary issues were framed. After hearing the arguments, the trial court vide its judgment dated 8.10.1987 decreed the plaintiff's suit.

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(3 of 5)

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[CSA-410/1999]

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Being aggrieved, the defendants filed a Civil Appeal before the appellate court, which came to be dismissed vide judgment dated 5.7.1999. Hence, this second appeal has been filed.

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The Coordinate Bench of this Court vide its order dated 10.4.2007 while admitting the appeal, framed the following substantial questions of law:

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"1. Whether the decision of the learned lower courts on issue no. 7 that the relationship of landlord and tenant existed between the plaintiff-respondent and the defendantappellants regarding the disputed shop is based on misreading of rent note Ex. 1 and the evidence of the parties and the same has vitiated the trial of the case?

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Whether the relationship of landlord and tenant could be taken to be established between the plaintiff-respondent and the defendantappellants although the rent note Ex. 1 had been written by deceased Radhy Shyam in favour of Maheshwari Panchayat, Dug and not in favour of the plaintiff-respondent in his individual capacity and the plaintiff-respondent had failed to prove that he was the President of Maheshwari Panchayat and that he had any authority to file the present suit on behalf of Maheshwari Panchayat and he had been duly authorized by Maheshwari Panchayat to file the present suit on their behalf"

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Whether the suit filed by the plaintiffrespondent was not maintainable as the plaintiffrespondent did not seek permission of the Court to file the present suit in representative capacity under Order 1 Rule 8 of the Code of Civil Procedure?

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(4 of 5)

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[CSA-410/1999]

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Whether the suit filed by the plaintiffrespondent could not be taken to be a representative suit as no notice of the institution of the suit to all persons interested in the disputed property was given by the learned trial court under Order 1 Rule 8 (2) of the Code of Civil Procedure?"

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Learned counsel for the defendants submits that the trial court framed the issue nos. 1 and 2, but no finding on those issues has been given. Even if the suit is treated to be a representative suit under Order 1 Rule 8 CPC, aforesaid issues, which go to the root of the case, were required to be decided in accordance with law. In support of his contentions, he has placed reliance on the judgment passed by the Hon'ble Apex Court in the case of S.N.D.P. Sakhayogam Versus Kerala Atmavidya Sangham & Ors. reported in 2017 (2) WLC (SC) Civil 598.

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Learned counsel for the plaintiff has opposed the same and defended the impugned judgments.

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Heard. Considered.

¶40

In the case of Kerala Atmavidya Sangham & Ors. (supra), the Hon'ble Apex Court held as under:

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"17. In our considered opinion, one question, which goes to the root of the case affecting the very jurisdiction of the Court to try the suit, was not taken note and if taken note of, it was not decided in its proper perspective by any of the Courts below. May be due to the reason, instead of raising the objection, the defendant appears to have conceded it.

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Be that as it may, in our considered view, the issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any

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(5 of 5) [CSA-410/1999]

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stage of the proceedings once brought to the notice of the Court."

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Since no finding has been given by both the courts below on issues no. 1 and 2, which are important issues and go to the root of the case, the impugned judgments and decree passed by the courts below are liable to be quashed and set-aside.

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Accordingly, the second appeal filed by the defendants is allowed and the impugned judgment and decree passed by the Courts below are quashed and set-aside. Matter is remitted to the Trial Court to decide the issues no. 1 and 2 afresh on merits, after hearing both the parties, in accordance with law, expeditiously.

¶47

Substantial questions of law framed by the Coordinate Bench of this Court vide its order dated 10.4.2007 are answered accordingly.

¶48

Both the parties are directed to appear before the Trial Court on 10.1.2022.

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Consequent upon the disposal of the appeal, interim order, if any, is vacated and the stay application also stands disposed of accordingly.

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(PRAKASH GUPTA),J

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DILIP KHANDELWAL /45

Harpyari Bai and Ors. v. Ballabhdas

Case brief

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Harpyari Bai and Ors. v. Ballabhdas

Case brief

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