Smt. Neeraj Gupta vs Shyam Sunder Alias Shyam Sunder ...
2022 Latest Caselaw 11230 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED ON 08.08.2022
 
DELIVERED ON 25.08.2022
 
Court No. - 5
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 5979 of 2022
 

 
Petitioner :- Smt. Neeraj Gupta
 
Respondent :- Shyam Sunder Alias Shyam Sunder Singh And 9 Others
 
Counsel for Petitioner :- Rama Goel Bansal,Shalini Goel
 
Counsel for Respondent :- Shreya Gupta,Ravi Anand Agarwal
 
                                       With 
 
Case :- MATTERS UNDER ARTICLE 227 No. - 6015 of 2022
 

 
Petitioner :- Smt.Neeraj Gupta
 
Respondent :- Shyam Sunder Alias Shyam Sunder Singh And 9 Others
 
Counsel for Petitioner :- Rama Goel Bansal,Shalini Goel
 
Counsel for Respondent :- Shreya Gupta,Ravi Anand Agarwal
 

 
Hon'ble Salil Kumar Rai,J.

Because both the petitions involved the same parties and the same issues, therefore, were connected and heard together and are being decided by a common judgment.

Petition No. 5979 of 2022 arises from Small Causes Case No. 45 of 2009 (hereinafter referred to as, ''SCC Case No. 45 of 2009') and Small Causes Revision No. 05 of 2022 (hereinafter referred to as, ''SCC Revision No. 05 of 2022') while Petition No. 6015 of 2022 arises from Small Causes Case No. 46 of 2009 (hereinafter referred to as, ''SCC Case No. 46 of 2009') and Small Causes Revision No. 06 of 2022 (hereinafter referred to as, ''SCC Revision No. 06 of 2022').

Small Causes Case Nos. 45 of 2009 and 46 of 2009 were instituted by the plaintiff - respondent nos. 1 to 5 against Nand Kishore Gupta, i.e., respondent no. 6 and (Late) Om Shanker Gupta for arrears of rent and eviction from the demised premises. The suit property in the cases were two shops of which the plaintiffs - respondents were the landlords. Service of summons in SCC Case Nos. 45 of 2009 and 46 of 2009 to Om Shanker Gupta was held to be sufficient vide order dated 20.8.2009 by service on his son. Om Shanker Gupta appeared in the cases on 11.1.2010 but did not file his written statement. During the pendency of the aforesaid cases, Om Shanker Gupta died on 8.10.2012. The respondent nos. 7 to 10 and the petitioner are the heirs of Om Shanker Gupta. The respondent no. 7 is the wife of Om Shanker Gupta, respondent nos. 8 to 10 are the sons of Om Shanker Gupta and the petitioner is the married daughter of Om Shanker Gupta. The petitioner is married to one Rajiv Gupta posted at Anpara, District Sonbhadra and, along with her husband, resides in C 2/5 Lanko Township Bina Road, Anpara, District Sonbhadra. The respondent nos. 7 to 10 are shown to be resident of District Bareilly. After the death of Om Shanker Gupta, the plaintiffs - landlords filed substitution applications in SCC Case Nos. 45 of 2009 and 46 of 2009 to bring on record the aforesaid heirs including the petitioner. The substitution applications were allowed vide order dated 14.12.2012. Subsequently, summons were issued to the heirs of Om Shanker Gupta which included the petitioner by registered post and as acknowledgment was not received within 30 days, therefore, vide order dated 23.4.2013 and in accordance with Order V Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as, ''CPC'), the court declared that summons had been duly served on the heirs of Om Shanker Gupta. In its impugned judgment, the trial court has recorded that after the aforesaid declaration, the plaintiff and the defendant no. 1 in the said case, who is respondent no. 6 in the present petition, continuously appeared in the cases but as the heirs of Om Shanker Gupta did not appear in the cases, therefore, the trial court, vide its orders dated 23.4.2013, directed that the proceedings in SCC Case Nos. 45 of 2009 and 46 of 2009 shall be held ex parte against the heirs of Om Shanker Gupta. SCC Case Nos. 45 of 2009 and 46 of 2009 were dismissed in default on 12.8.2014 but were subsequently restored to their original number and file vide order dated 10.10.2014. Summons through registered post were again issued to the heirs of Om Shanker Gupta and the summons were declared to have been duly served on the heirs by refusal. The proceedings in the cases continued ex parte against the heirs of Om Shanker Gupta which included the petitioner. Subsequently, the petitioner filed applications numbered as Paper Nos. 118-Ga and 121-Ga in SCC Case Nos. 45 of 2009 and 46 of 2009 praying that the order dated 23.4.2013 directing that the proceedings shall be held ex parte against the heirs of Om Shanker Gupta be recalled. In her applications, the petitioner pleaded that she was permanently residing in District Sonbhadra and used to only occasionally come to Bareilly. It was stated in the applications that she came to Bareilly in 2019 when she came to know from her mother and brothers, i.e., respondent nos. 7 to 10 regarding the eviction proceedings instituted through SCC Case Nos. 45 of 2009 and 46 of 2009 and that due to financial crunch, the respondent nos. 7 to 10 could not appear in the aforesaid eviction proceedings. It was stated by the petitioner that respondent nos. 7 to 10 themselves had come to know about the proceedings in September, 2018. In her applications numbered as Paper Nos. 118-Ga and 121-Ga, the petitioner also stated that she had sentimental attachment with the shops as they were under the tenancy of his deceased father. The petitioner also denied that she had refused any registered notice or any notice had been served on her or at her residential address. The aforesaid applications were dismissed by the Judge, Small Causes Court, Bareilly vide his separate orders dated 4.1.2022 passed in SCC Case Nos. 45 of 2009 and 46 of 2009. SCC Revision No. 05 of 2022 and SCC Revision No. 06 of 2022 filed against the orders passed by the trial court have also been dismissed by the Additional District Judge, Court No.02, District Bareilly vide his orders dated 13.5.2022. The orders dated 4.1.2022 passed in SCC Case No. 45 of 2009 & 46 of 2009 and 13.5.2022 passed in SCC Revision Nos. 05 of 2022 & 06 of 2022 have been challenged in the present petitions.

The courts below have dismissed Paper Nos. 118-Ga and 121-Ga filed by the petitioner on the ground that after the death of her father, the petitioner along with respondent nos. 7 to 10 was a joint tenant of the demised premises and in case of joint tenancy, notice on one tenant is sufficient and all the joint tenants are not necessarily to be impleaded in the case as the decree against one joint tenant would be binding on all joint tenants. In their impugned judgments, the lower courts have also taken note of the fact that the applications filed by the petitioner were, on two occasions dismissed in default, and considering the aforesaid fact have held that the applications had been filed by the petitioner only to delay the proceedings in the case. The courts below have also taken note of the fact that respondent nos. 7 to 10 have not filed any application denying the endorsement of the Postman that they had refused to receive notices and have not filed any application stating that no notices in the said case had been served on them. In their impugned judgments, the courts below have also held that no fruitful purpose would be served in allowing the applications as admittedly the petitioner had no use of the said shop because she was residing in District Sonbhadra and only because the petitioner had a sentimental attachment with the demised premises was not sufficient to recall the order dated 23.4.2013 at her instance as in the circumstances, no rights of the petitioner were infringed by the order dated 23.4.2013.

It was argued by the counsel for the petitioner that admittedly, the petitioner was substituted as one of the heirs of Om Shanker Gupta and, therefore, notices had to be served on her and failure to serve notice of the case on the petitioner vitiates the order dated 23.4.2013 as the same does not fulfill the requirements of Order IX Rule 6(1)(a) of the CPC. It was argued that no notices were served on the petitioner and as the petitioner was not residing in District Bareilly but in District Sonbhadra and notices were sent to Bareilly, therefore, there was no question of she refusing to receive any notice. It was argued that notices of the case were admittedly sent at the Bareilly address of Sri Om Shanker Gupta and as the petitioner was not residing in District Bareilly but in District Sonbhadra, therefore, summons were not properly addressed and no presumption under Order V Rule 9 of the CPC can be drawn to declare service of summons on the petitioner to be sufficient. It was argued that for the aforesaid reasons, the orders dated 4.1.2022 and 13.5.2022 are liable to be set-aside and Paper Nos. 118-Ga and 121-Ga filed by the petitioner in SCC Case Nos. 45 of 2009 and 46 of 2009 are to be allowed. In support of her contention, the counsel for the petitioner has relied on the judgment of this Court reported in Gauri Shankar Gupta vs. Anita Mishra & Anr. 2004 (1) ARC 200.

Rebutting the contention of the counsel for the petitioner, the counsel for the respondent nos. 1 to 5 has supported the reasons given in the impugned orders dated 4.1.2022 and 13.5.2022 passed by the lower courts. It was argued by the counsel for the respondents that the order to proceed ex parte against the petitioner was passed on 23.4.2013 and the applications of the petitioner for recall of the said order were filed in February, 2019 and were highly belated. It was argued that from the averment of the petitioner in her applications numbered as Paper No. 118-Ga and 121-Ga, it is evident that the brothers of the petitioner, i.e., respondent nos. 8 to 10 had come to know about the proceedings in the case in September, 2018 itself. It was argued that the petitioner was a joint tenant of the premises along with respondent nos. 7 to 10 and notice to one joint tenant is sufficient and is not required to be given to all the tenants separately. It was argued that the other heirs of the deceased, i.e., respondent nos. 7 to 10 have not denied the endorsement regarding their refusal to receive notice, therefore, notices in the case shall be deemed to have been served on them. It was argued that the petitioner is only a proxy for respondent nos. 7 to 10 and the applications have been filed to delay the proceedings in the case. In support of her contention, the counsel for the respondents has relied on the judgments of this Court reported in Basant Lal Agarwal vs. Vth Additional District Judge, Mathura & Ors. 2012 (3) ARC 525; Sandeep Bhatia vs. Vth Additional District Judge, Bijnor & Ors. 2000 (2) ARC 474 and Suresh Kumar Kohli vs. Rakesh Jain & Anr. 2018 (6) SCC 708. Relying on the aforesaid judgments, the counsel for the respondents has argued that the petitions lack merit and are liable to be dismissed.

I have considered the submissions of the counsel for the parties.

In Gauri Shankar Gupta (supra), a Single Judge of this Court held that ''ordinarily after the death of the tenant particularly in case of tenancy of non-residential building, all his heirs must be impleaded as tenant in ejectment suit'. The judgment is not an authority on the point that when all the heirs of the original tenant are impleaded, notice on all of them, who are joint tenants is required to be separately given to each of the heirs. In any case, the judgment in Gauri Shankar Gupta (supra) does not take note of the judgment of this Court in Sandeep Bhatia (supra) where it was held by another Single Judge of this Court that ''It is well settled in law that notice to one of the joint tenants and impleadment of one of them is valid in law and a notice having been served upon any one of the joint tenants is good for all joint tenants and decree passed against one of the joint tenants has got binding effect upon all joint tenants even though they are not impleaded in the suit'. The judgment in Sandeep Bhatia (supra) is prior to the judgment of this Court reported in Gauri Shankar Gupta (supra). Further, in Basant Lal Agarwal (supra) where notices were not served upon all legal heirs of the deceased tenant, this Court after noting the different judgments of the Supreme Court held that ''service of notice upon all the legal heirs was not necessary at all but it was sufficient to serve notice upon one of the joint tenants and such a notice cannot be said bad merely because it has been served upon one of the joint tenants'. It is admitted by the counsel for the parties that the petitioner as well as respondent nos. 7 to 10 became joint tenants of the suit properties after the death of Om Shanker Gupta. The respondent nos. 7 to 10 have not filed any application or affidavit denying service of notice of the case on them. In fact, in its impugned order dated 4.1.2022, the trial court takes note of the fact that Om Shanker Gupta was served notice of the case through his son and had also appeared in the case though he did not file any written statement. In view of the precedents referrred above, there is no illegality in the orders passed by the lower courts rejecting the applications filed by the petitioner for recall of the order dated 23.4.2013.

A reading of the order of the trial court also indicates that Paper Nos. 118-Ga and 121-Ga filed by the petitioner for recall of the orders dated 23.4.2013 were initially dismissed in default on 5.2.2021. The petitioner filed applications for recall of the said order which application was also dismissed in default vide order dated 20.9.2021. Subsequently, the petitioner filed applications for recall of the order dated 20.9.2021 which was allowed by order dated 18.10.2021 and subsequently, by order dated 24.11.2021, the order dated 5.2.2021 dismissing her applications numbered as Paper Nos. 118-Ga and 121-Ga were also recalled. The aforesaid facts show that the applications numbered as Paper Nos. 118-Ga and 121-Ga were filed by the petitioner only to delay the proceedings in the case and there is no perversity in the opinions of the trial court and the revisional court to the aforesaid effect so as to occasion interference by this Court.

In view of the aforesaid reasons, there is no illegality, perversity or any jurisdictional error in the orders passed by the courts below so as to occasion interference by this Court under Article 227 of the Constitution of India.

The petitions lack merit and are, hereby, dismissed.

Order Date :- 25.8.2022

Satyam