Smt. Kamlesh Sharma vs Smt. Savitri
2022 Latest Caselaw 22206 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 
Case :- MATTERS UNDER ARTICLE 227 No. - 5028 of 2022
 
Petitioner :- Smt. Kamlesh Sharma
 
Respondent :- Smt. Savitri
 
Counsel for Petitioner :- Abdullah Ramzi Khan,Bakhtiyar Ramzi,Umair Ahmad Khan
 
Counsel for Respondent :- Ashish Kumar Dixit
 

 
Hon'ble Abdul Moin,J.

Heard Sri Abdullah Ramzi Khan, learned counsel for the petitioner and Sri Aniruddh Singh, Advocate who files his Vakalatnama on behalf of respondent.

Instant petition has been filed praying for the following main reliefs:-

"(I) It is therefore respectfully prayed that this Hon'ble Court may be pleased to quashed/setaside the who judgment and decree and dated 02.07.2018 (Annexure No. 1 to 2) and part of the judgment and decree dated 11.11.2022 (Annexure No. 3 to 4) upholding the decree of eviction passed in (Annexure No. 1 to 2)."

The case set forth by the petitioner is that a suit was filed in the year 2016 by the respondent herein which was numbered as SCC Suit No. 96 of 2017 Inre; Smt. Savitri Vs. Kamlesh Sharma praying for ejectment of the petitioner in respect of a shop, praying for recovery of arrears of rent and for damages for unauthorized dues and occupation of shop in dispute.

Prior to the said suit being filed, a notice had been sent by the respondent herein on 08.05.2014, a copy of which is annexure 6 to the petition which was addressed to the petitioner and her two sons.

As the suit had only been filed against the petitioner herein and her two sons had not been impleaded as a party, as such, while filing her written statement, the petitioner herein took a plea that as the notice had been sent to the petitioner and her two sons and the suit has only been filed against the petitioner herein consequently, the doctrine of approbate and reprobate would be applicable and the notice having been sent to all three persons, the suit could not be filed only against one person and as such the sons of the petitioner were necessary party and they not having been impleaded as a party, the suit merited to be dismissed.

The learned Trial Court vide impugned order dated 02.07.2018, after dealing with the said issue, did not find any merit in the same and ordered for eviction of the petitioner herein as well as payment for arrears of rent.

Being aggrieved, the petitioner filed a revision number. 49 of 2018 Inre; Smt. Kamlesh Sharma Vs. Smt. Savitri raising the same issue. The revisional Court also considered the said issue and upon not finding any merit in the said issue but finding merit on the other issue as raised by the petitioner herein has partly allowed the revision whereby the order of eviction has been maintained while the order for payment and arrears of rent has been set aside.

Still being aggrieved, instant petition has been filed praying for the aforesaid relief.

The only ground which has been urged by Sri Abdullah Ramzi Khan, learned counsel for the petitioner is that when the notice dated 08.05.2014 was sent by the landlord to the tenant namely the petitioner and her two sons as such, there would not be any occasion for the suit to be only filed against the petitioner alone and her two sons not having been impleaded as a party in the said suit itself merited the said suit to be dismissed for non impleadment of party apart from attracting the principle of approbate and reprobate.

No other ground has been urged.

A perusal of the order impugned, passed by the learned Trial Court dated 02.07.2018 would indicate that no such issue was ever framed by the learned Trial Court.

It is thus apparent that the said ground was taken with all vehemence while filing the revision before the learned revisional Court.

Learned revisional Court vide order dated 11.11.2022, a copy of which is annexure 3 to the petition framed issue no. 2 as to whether the SCC suit was bad for non impleadment of necessary party.

The learned revisional Court has decided the issue after considering the judgment over which reliance has been placed by the learned counsel for the petitioner/revisionist namely Ramesh Chand Bose Vs Gopesh Prasad Sharma reported in 1976 (2) ALR 711 as well as the recent judgment of this Court in the case of Uday Bhan Tiwari Vs. Pashupati Colonizers Private Limited and Ors reported in 2021 (39) LCD 1283 and the another judgment of this Court in the case of Harish Tandon Vs Additional District Magistrate, Allahabad and Ors reported in 1995 (1) ARC 220 to take a view that after the death of the tenant, his heirs become joint tenant and it is a single tenancy which devolves on the heirs and there is no division of the premises or the rent payable therefor and the heirs succeed to the tenancy as joint tenants and a notice or determination to one heir is sufficient.

From a perusal of the facts as have been set forth by the learned counsel for the petitioner it is apparent that the notice had been sent to the petitioner and her two sons while the suit itself was filed only against the petitioner.

When facts of the instant case are tested on the touchstone of the law laid down by the this Court in the case of Harish Tandon (supra) & Uday Bhan Tiwari (supra) it is apparent that the heirs succeed to the tenancy as joint tenant and a notice for determination to one heir would be sufficient. As an abundant precaution, the landlord had sent a notice to all the three persons namely the petitioner and her two sons while the suit has only been filed against the petitioner herein consequently, once there is a joint tenancy as such, it was within the prerogative of landlord to have only confined the suit to the petitioner landlady alone and not having impleaded her two sons as a party, which, keeping in view the aforesaid judgments, would not render the suit bad.

Even otherwise, there being a specific finding of fact which has been given by both the learned Trial Court as well as revisional Court, no interference is required in the instant petition filed under Article 227 of Constitution of India.

This Court is exercising powers under Article 227 of the Constitution of India. Hon'ble the Apex Court in the case of Waryam Singh and another vs Amarnath and another reported in AIR 1954 SC 215 as reiterated by Hon'ble the Apex Court in the case of Shalini Shyam Shetti vs Rajendra Shankar Patil reported in (2010) 8 SCC 329 held as under:

"(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it,`within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised." Keeping in view the aforesaid observations, no case for interference is made out. Accordingly, the petition is dismissed.

Keeping in view the aforesaid observations, no case for interference is made out. Accordingly, the petition is dismissed.

Order Date :- 21.12.2022

Pachhere/-