Rajasthan High Court
Harpyari Bai And Ors vs Ballabhdas on 14 December, 2021
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 410/1999
1. Harpyari Bai Wd/o Radhey Shyam
2. Kusum Kumari D/o Radhey Shyam
3. Rekha D/o Shri Radhey Shyam
4. Gopal S/o Shri Radhey Shyam
All R/o Dug, Distt. Jhalawar
...Defendants/Appellants
Versus
Ballabhdas S/o Ram Chander (since deceased)
1. Girraj Kishore Jaju S/o Ballabhdas R/o Dug Bus Stand,
Dug, Distt. Jhalawar
2. Purshottam Das Jaju S/o Ballabh Das, R/o Gangdhar
Gate, Dug, Distt. Jhalawar
3. Krishankant Jaju S/o Ballabh Das, C/o Panchayat
Samiti, Dug, Distt. Jhalawar
4. Shivnarain Jaju S/o Ballabhdas, Ganesh Chauk, Dug,
Distt. Jhalawar
5. Ganga Vishan Jaju C/o Audiyogik Vyavsayik Bank,
Sheopur (Madhya Pradesh)
----Respondents/Plaintiffs
For Appellant(s) : Mr. Sanjay Mehrishi, Advocate
For Respondent(s) : Mr. R.K. Daga, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment
14/12/2021
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
(2 of 5) [CSA-410/1999]
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 respondent-
plaintiff's (for short, 'the plaintiffs') suit for eviction and recovery
of rent.
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.
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.
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.
(3 of 5) [CSA-410/1999]
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.
The Coordinate Bench of this Court vide its order dated
10.4.2007 while admitting the appeal, framed the following
substantial questions of law:
"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 defendant-
appellants 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?
2. Whether the relationship of landlord and
tenant could be taken to be established between
the plaintiff-respondent and the defendant-
appellants 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"
3. Whether the suit filed by the plaintiff-
respondent was not maintainable as the plaintiff-
respondent 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?
(4 of 5) [CSA-410/1999]
4. Whether the suit filed by the plaintiff-
respondent 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?"
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.
Learned counsel for the plaintiff has opposed the same
and defended the impugned judgments.
Heard. Considered.
In the case of Kerala Atmavidya Sangham & Ors.
(supra), the Hon'ble Apex Court held as under:
"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.
18. 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
(5 of 5) [CSA-410/1999]
stage of the proceedings once brought to the
notice of the Court."
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.
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.
Substantial questions of law framed by the Coordinate
Bench of this Court vide its order dated 10.4.2007 are answered
accordingly.
Both the parties are directed to appear before the Trial
Court on 10.1.2022.
Consequent upon the disposal of the appeal, interim
order, if any, is vacated and the stay application also stands
disposed of accordingly.
(PRAKASH GUPTA),J
DILIP KHANDELWAL /45
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