Rajasthan High Court - Jodhpur

Manoj vs Kailashchandra (2023:Rj-Jd:44092) on 15 December, 2023

Author: Rekha Borana

Bench: Rekha Borana

[2023:RJ-JD:44092]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Second Appeal No. 280/2022

1.       Manoj S/o Late Shri Moolchand Ji, Aged About 51 Years,
         By Caste Sindhi, R/o 184 Near Govinddham Mandir,
         Singhunagar, Bhilwara.
2.       Kamal S/o Late Shri Moolchand Ji, Aged About 54 Years,
         By Caste Sindhi, R/o 184 Near Govinddham Mandir,
         Singhunagar, Bhilwara. At Present 781, Sector No. 29,
         Faridabad.
3.       Rakesh S/o Late Shri Moolchand Ji, Aged About 50 Years,
         By Caste Sindhi, R/o 184 Near Govinddham Mandir,
         Singhunagar, Bhilwara. At Present 781, Sector No. 29,
         Faridabad.
4.       Smt. Rajni D/o Late Shri Moolchand Ji, Aged About 55
         Years, By Caste Sindhi, R/o 184 Near Govinddham
         Mandir, Singhunagar, Bhilwara. At Present 781, Sector No.
         29, Faridabad.
5.       Smt. Praveen D/o Late Shri Moolchand Ji, Aged About 45
         Years, By Caste Sindhi, R/o 184 Near Govinddham
         Mandir, Singhunagar, Bhilwara. At Present 781, Sector No.
         29, Faridabad.
6.       Smt. Aasha W/o Late Shri Moolchand Ji, Aged About 75
         Years, By Caste Sindhi, R/o 184 Near Govinddham
         Mandir, Singhunagar, Bhilwara. At Present 781, Sector No.
         29, Faridabad.
                                                                  ----Appellants
                                     Versus
1.       Kailashchandra S/o Late Shri Baluram Ji, By Caste Sindhi,
         R/o Behind Bade Mandir, Bhilwara.
2.       Gopallal S/o Late Shri Baluram Ji, By Caste Sindhi, R/o
         Behind Bade Mandir, Bhilwara.
3.       Mahaveer S/o Late Shri Baluram Ji, By Caste Sindhi, R/o
         Behind Bade Mandir, Bhilwara.
4.       Ramesh S/o Late Shri Baluram Ji, By Caste Sindhi, R/o
         Behind Bade Mandir, Bhilwara.
5.       Pawan S/o Late Shri Baluram Ji, By Caste Sindhi, R/o
         Behind Bade Mandir, Bhilwara.
6.       Smt. Kanta D/o Late Shri Baluram Ji, By Caste Sindhi, R/o


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                Behind Bade Mandir, Bhilwara.
        7.      Smt. Shakuntala D/o Late Shri Baluram Ji, By Caste
                Sindhi, R/o Behind Bade Mandir, Bhilwara.
        8.      Smt. Hema D/o Late Shri Baluram Ji, By Caste Sindhi, R/
                o Behind Bade Mandir, Bhilwara.
        9.      Sudhir S/o Late Shri Lilaram Ji Sindhi, By Caste Sindhi, R/
                o H. No. 184, near Govinddham Mandir, Singhunagar,
                Bhilwara.
        10.     Pradeep S/o Late Shri Lilaram Ji Sindhi, By Caste Sindhi,
                R/o H. No. 184, near Govinddham Mandir, Singhunagar,
                Bhilwara.
        11.     Trilok S/o Late Shri Lilaramji Sindhi, By Caste Sindhi, R/o
                H. No. 184, near Govinddham Mandir, Singhunagar,
                Bhilwara.
        12.     Smt. Sobhagyawanti W/o Late Shri Lilaramji Sindhi, By
                Caste Sindhi, R/o H. No. 184, near Govinddham Mandir,
                Singhunagar, Bhilwara.
                                                                        ----Respondents


       For Appellant(s)          :     Mr. R.K. Thanvi, Sr. Adv. with
                                       Mr. Narendra Thanvi
                                       Mr. Mahendra Thanvi
       For Respondent(s)         :     Mr. Saurabh Maheshwari



                     HON'BLE MS. JUSTICE REKHA BORANA

Judgment

Reportable

15/12/2023

1. The present second appeal has been preferred against the

judgment and decree dated 25.11.2022 passed by the Additional

District Judge No.1, Bhilwara in Civil Appeal No.15/2021 whereby

the appeal of the appellant/plaintiff has been dismissed and the

judgment and decree dated 06.03.2021 passed by the Additional

[2023:RJ-JD:44092] (3 of 23) [CSA-280/2022]

Civil Judge No.3, Bhilwara in Civil Original Case No.166/2006 (CIF

No.1766/2014 has been confirmed.

The learned Trial Court vide judgment and decree dated

06.03.2021 dismissed the suit as preferred by the plaintiff for

declaration of decree dated 26.09.2001 passed in Civil Suit

No.330/1992 (68/86) to be null and void.

2. The facts of the case are as under:

(i) In the year 1968, two shops were let out to two brothers

Moolchand and Lilaram jointly @ Rs.56/- per month by the joint

owners of the property namely, Jaganath, Babulal and Banshilal.

When the tenants committed default in payment of rent, a suit

(No.390/1977) (288/1970) for eviction and arrears of rent was

filed against both of them jointly by all the three owners.

(ii) During the pendency of the suit, a settlement was arrived

into between three owners of the property and the two shops in

question came in the share of Babulal. Therefore, the names of

the other two owners was prayed to be struck off and the

consequential order was also passed.

(iii) In the said suit, written statement was filed by one of the

tenants Lilaram only wherein he specifically stated that Moolchand

had nothing to do with the rented premise as he was just a helper

to Lilaram. Further, Moolchand has left Bhilwara since long and

hence, he cannot be termed to be a tenant of the premise in

question. It was also the specific averment of Lilaram that the rent

of both the shops was being paid by him only and he is only

running business in the said shops.

(iv) In terms of the above averments as made by Lilaram in his

written statement, an application under Order I Rule 10 of the

[2023:RJ-JD:44092] (4 of 23) [CSA-280/2022]

Code of Civil Procedure was preferred by the plaintiff landlord

Baluram with a submission that as Moolchand is no more a tenant

in the premise and his whereabouts are not being found since

more than last seven years, his name be deleted from the array of

defendants. No reply to the said application was filed by any of the

defendants. It is relevant to note here that both Lilaram and

Moolchand were represented by the same counsel in the said suit.

(v) The application under Order I Rule 10, CPC as preferred by

the plaintiff landlord was allowed on 05.03.1984 and the name of

Moolchand was ordered to be deleted.

(vi) However, the said suit No.390/1977 was ultimately

withdrawn by the plaintiff landlord on 19.03.1985 with liberty to

file a fresh suit.

(vii) Thereafter, a fresh suit was filed by the landlord Baluram for

eviction and recovery of arrears of rent impleading only Lilaram.

In the said suit, it was specifically averred by the plaintiff that as

Moolchand has not been heard of or seen for more than seven

years, he no more being a tenant, is not impleaded. However, the

fact of Moolchand not been heard from last seven years was

denied by the defendant Lilaram.

(viii) Vide judgment and decree dated 26.09.2001, the suit was

partly decreed and a decree for eviction was passed only qua the

eastern side shop. However, the standard rent qua both the shops

was fixed @ Rs.750/- per month each and a decree for arrears of

rent was also passed.

(ix) The first appeal preferred against the said judgment by

Lilaram was dismissed on 30.10.2003 and the second appeal

against the same was dismissed by this Court on 14.01.2004.

[2023:RJ-JD:44092] (5 of 23) [CSA-280/2022]

However, vide the said judgment, the defendant tenant was

granted one year time to handover the vacant possession of the

east side shop to the landlord. The defendant was directed to file

an undertaking to the said effect within two weeks.

(x) In pursuance to the said directions, the tenant Lilaram did file

an undertaking before the learned Trial Court on 27.01.2004. Vide

the same, he undertook to handover the vacant possession of the

premise on 13.12.2015 qua which the decree for eviction was

passed. He also undertook to comply with the orders qua the

payment of arrears of rent/mesne profit.

(xi) However, before the undertaking as given by the tenant

Lilaram to vacate the premise could be complied with, the present

suit was preferred by Moolchand on 07.01.2005 for declaration of

the decree dated 26.09.2001 to be void and ineffective qua him.

Moolchand preferred the said suit with a submission that he was

the joint tenant in the premise in question and was running his

business in the eastern side shop. Lilaram, in connivance with the

plaintiff landlord, got the decree of eviction qua the shop in which

he was running his business. It was further averred that he was

very much alive and running his business in the shop and the

plaintiff did not implead him in the present suit on the wrong and

incorrect premise that he was not being heard of from last 7

years. Therefore, the decree as passed qua his shop in a suit

wherein he was not impleaded, cannot be said to be binding on

him and hence, deserves to be declared as null ineffective qua his

interests.

[2023:RJ-JD:44092] (6 of 23) [CSA-280/2022]

3. In the present suit, Lilaram was also impleaded as defendant

No.11 but he did not prefer to appear or file any written statement

and ultimately, the suit was proceeded ex-parte against him.

4. Meanwhile, the execution proceedings were initiated by the

plaintiff landlord as Lilaram did not handover the vacant

possession of the premise in question in terms of the undertaking

given by him. In the said execution proceedings, objections under

Order XXI Rules 97 and 98, CPC were preferred by present

plaintiff Moolchand which were rejected vide order dated

12.08.2022. The appeal against the said order is reported to be

pending till date.

Plaintiff Moolchand expired during the pendency of the suit

and his legal representatives were brought on record.

5. On basis of the pleadings as made by the parties, the

following four issues were framed:

"1& vk;k çfroknh la[;k&01 yxk;r 10 o 11 us vkil esa nqjfHk lafèk djds çdj.k la[;k 323@92 bZånhå esa okn ds iSjk la[;k&01 esa of.kZr nqdkuksa esa iwoZ fn'kk dh nqdku dks [kkyh djkus o fdjk;k oknxzLr nksuksa nqdkuksa dk 56 :i;s çfrekg ls c<+kdj 750 :i;s çfrekg dk çfr nqdku c<+kus ckcr~ fMØh nqHkkZouk o csbZekuhiw.kZ vk'k; ls çkIr dh\ & oknhx.k 2& vk;k oknhx.k çfroknhx.k ds fo:) çdj.k la[;k 323@92 bZånhå (68@86) cvuoku Jherh uUnw nsoh ekyhoky oxSå cuke yhykjke flaèkh esa fnukad 26-09-2001 dks ikfjr fMØh dks 'kwU; o çHkkoghu rFkk fujLruh; ?kksf"kr djus dh fMØh çkIr djus ds vfèkdkjh gS\ &oknhx.k 3& vk;k oknhx.k çfroknhx.k ds fo#) çdj.k la[;k 323@92 bZånhå (68@86) cvuoku Jherh uUnw nsoh ekyhoky oxSå cuke yhykjke flaèkh esa fnukad 26-09-2001 dks ikfjr fMØh dh ikyuk dks LFkfxr djkus ,oa bl vk'k; dh fMØh çkIr djus ds vfèkdkjh gS fd mä fMØh dh vuqikyuk esa oknxzLr nqdkuksa esa ls iwoZ fn'kk dh nqdku dks [kkyh ugha djkos vkSj 'kkafriwoZd <ax ls oknh dks

[2023:RJ-JD:44092] (7 of 23) [CSA-280/2022]

oknxzLr nqdku dk mi;ksx&miHkksx djus nsos vkSj mlds 'kkafriw.kZ mi;ksx&miHkksx esa fdlh çdkj dh ckèkk u rks Lo;a mRiUu djs] u gh fdlh vU; ls djkos\ &oknhx.k 4& vuqrks"k \"

6. The plaintiff got examined PW-1 Ghanshyam Kumar, the

power of attorney (P/A) holder of plaintiff No.1/2 Manoj son of

Moolchand and got exhibited four documents. Defendant did not

produce any oral or documentary evidence.

7. The learned Trial Court, while deciding all the issues against

the plaintiffs, dismissed the suit vide judgment and decree dated

06.03.2021. The first appeal preferred against the said judgment

and decree was also dismissed with a cost of Rs.3,000/- vide

judgment and decree dated 25.11.2022 against which the present

second appeal has been preferred.

8. Learned counsel for the appellants submitted that it is clear

on record that the decree dated 26.09.2021 was obtained by

collusion between the landlord and Lilaram. When once, it was

admitted that it was a joint tenancy and Moolchand was one of the

tenants, he ought to have been impleaded in the suit and even if

it was averred that Moolchand was not heard of from last seven

years, his legal representatives ought to have been

impleaded/substituted in his place. Secondly, when an application

for deletion of the name of Moolchand was preferred by the

plaintiff in the earlier suit, no objection was made by Lilaram

which also shows that he was hand in gloves with the plaintiff

landlord. Further, even when an application for withdrawal of the

suit was preferred by the landlord, Lilaram did not object to that

too which proves the factum of they being hand in gloves.

[2023:RJ-JD:44092] (8 of 23) [CSA-280/2022]

9. Counsel further submitted that Moolchand came to know

about the present decree only when he was informed by Lilaram

to vacate the premise on 13.01.2005. As he was not a party to the

suit, firstly, the decree would not be binding on him and

secondly, it would be a deemed presumption that he was not

aware of the said decree. Further, despite no evidence been led

by the defendants, the learned Courts below proceeded on to

decide all the issues against the plaintiff without there being any

material available on record.

10. Per contra, learned counsel for the respondents submitted as

under :

(i) The present is a stark example of abuse of process of the

Court. Learned counsel submitted that the decree which has been

sought to be declared null and void, has been affirmed by the High

Court vide judgment dated 14.01.2004 passed on merits.

Moolchand never contested any of the matters nor did he

challenge any of the orders passed during the complete litigation

since the year 1968. He did not file any written statement in the

earlier suit, neither did he oppose the application under Order I

Rule 10, CPC whereby his name was sought to be deleted and nor

did he challenge the decree dated 26.09.2001 which was affirmed

by the High Court in the year 2004. It is only after the execution

proceedings been initiated that he has chosen to file the present

suit which is on the face of it, at the instance of Lilaram/LRs of

Lilaram with an oblique motive to somehow hamper the execution

proceedings and frustrate the decree.

[2023:RJ-JD:44092] (9 of 23) [CSA-280/2022]

(ii) Admittedly, the decree had been passed only for one of the

shops and had Moolchand been in possession of the said shop, it is

not comprehendable as to why Lilaram contested the suit qua the

shop of which he was not even in possession, for years and years.

(iii) Even otherwise, the present suit was not maintainable as

had Moolchand been aggrieved of the decree dated 26.09.2001,

he had a remedy available in terms of Order XXI Rule 99, CPC

which he admittedly did not avail.

(iv) The fact that the present suit has been preferred with a

malafide intent to frustrate the decree dated 26.09.2001 is also

evident from the sole fact that none of the legal representatives of

Moolchand came into the witness box and the only witness

examined on behalf of the plaintiff who was portrayed to be the

power of attorney (P/A) holder of plaintiff No.1/2 Manoj, is the son

of Lilaram. On the one hand, the plaintiff has specifically averred

that he and Lilaram were not on good terms and that Lilaram

malafidely obtained the decree dated 26.09.2001 in collusion with

the landlord and on the other hand, the son of Lilaram has entered

the witness box in the present suit as power of attorney (P/A)

holder of the son of Moolchand. The collusion, if any, is clearly

between Lilaram and Moolchand and their representatives.

(v) It is the settled proposition of law that a power of attorney

(P/A) holder cannot depose on behalf of the plaintiff qua the facts

which can be in the personal knowledge of the plaintiff only.

(vi) The present appeal deserves to be dismissed with heavy costs

as even no rent has been paid till date of the disputed premises by

Lilaram or Moolchand. If Moolchand claims to be the tenant, his

first obligation was to pay the rent of the same.

[2023:RJ-JD:44092] (10 of 23) [CSA-280/2022]

11. In support of his submissions, learned counsel relied upon

the following judgments:

i. Vidhyadhar vs. Manikrao and Ors., (1999) 3 SCC 573.

ii. Ashok Chintaman Juker and Ors. vs. Kishore

Pandurang Mantri and Ors., (2001) 5 SCC 1.

iii. Janki Vashdeo Bhojwani and Ors. vs. Indusind Bank

Ltd. and Ors., (2005) 2 SCC 217.

12. In rejoinder arguments, learned counsel for the appellants

submitted firstly, that the judgment dated 14.01.2004 passed in

the earlier second appeal cannot be said to be binding on the

present plaintiff and hence, would be of no consequence so far as

the shop on the eastern side is concerned. Further, the said

judgment cannot even be read as the same has not been

exhibited in the present suit. Secondly, the provision of Order

XXI Rule 99, CPC would not even apply as the plaintiff has not still

been dispossessed. Thirdly, the factum of Moolchand being the

tenant was specifically admitted by the plaintiff himself in the

plaint wherein it has been averred that 'the premise was rented

out to the defendants jointly and further, that the rent was not

paid by Lilaram and Moolchand'. Lastly, the dues, if any, qua the

arrears of rent would be payable by Lilaram only and there being

no decree against the present plaintiff Moolchand, he cannot be

held liable for payment of the same.

13. Heard learned counsel for the parties and perused the

material available on record.

14. Before adverting into the facts, it is to be noted that an

application under Order XLI Rule 27, CPC has been preferred on

behalf of the defendants in the present appeal seeking a prayer to

[2023:RJ-JD:44092] (11 of 23) [CSA-280/2022]

take seven documents as annexed along with the application, on

record. No reply to the said application has been preferred on

behalf of the appellants. A perusal of the documents which have

been sought to be placed on record makes it clear that five

(Annex.-R/1/2 to Annex.-R/1/6) out of them are the

order/judgments passed by the Civil Courts in the earlier

proceedings qua the same disputed property.

So far as Annex.-R/1/1 is concerned, the same is a copy of

the application under Order I Rule 10 r.w. Section 151 of the Code

of Civil Procedure as preferred by the landlords in the earlier suit

for deletion of the name of defendant No.2 Moolchand (the

present plaintiff).

Annex.-R/1/7 is a copy of the undertaking as filed by Lilaram

(defendant No.11 in the present suit) before the learned Trial

Court in pursuance to the judgment dated 14.01.2004 passed by

this Court in the earlier second appeal.

15. In the opinion of this Court, all these documents pertain to

the earlier proceedings between the same parties and qua the

same disputed property. Five of them are the orders/judgments of

the Civil Court and the other two documents are also not the

disputed ones. Further, pleadings regarding the said documents

have been made in the present suit too and the said documents, if

taken on record, would only facilitate the Court to adjudicate the

present dispute promptly and effectively. Therefore, the

application under Order XLI Rule 27, CPC is allowed and the

documents (Annex.-R/1/1 to Annex.-R/1/7) as annexed along with

the application are permitted to be taken on record.

[2023:RJ-JD:44092] (12 of 23) [CSA-280/2022]

16. After perusing the complete material available on record and

hearing both the counsels, this Court does not find any ground to

interfere with the impugned judgment and decree. The reasons for

such conclusion are as under:

(i) Admittedly, the first suit in the year 1970 was preferred

jointly against both Moolchand and Lilaram. It is also an admitted

fact that both the defendants were represented by the same

counsel. In the said suit, the specific averment was made by

Lilaram that he is the tenant of both the rented shops and

Moolchand has nothing to do with the said tenancy. It was also

averred by Lilaram that Moolchand has left the city years ago and

that the rent is also paid by him only. No objection to the said

averments was made by Moolchand, who was at that stage,very

well a party to the suit. Meaning thereby, the factum of Lilaram

being the only person running business in the premise and

Moolchand being nowhere related to the said business or the

rented premise was not denied by Moolchand and hence, would be

deemed to be his admission.

(ii) An application under Order I Rule 10, CPC for deletion of the

name of Moolchand was preferred by the landlord and the same

was also not objected to by him despite he being a party to the

suit. Moreover, the order dated 05.03.1984 whereby his name was

permitted to be struck off was never challenged by him. Meaning

thereby, he accepted the same and was not aggrieved of the

same.

(iii) It is nowhere the case of the plaintiff Moolchand that he ever

paid the rent to the landlord. Even if the version of the plaintiff

Moolchand that he is running business in one of the shops since

[2023:RJ-JD:44092] (13 of 23) [CSA-280/2022]

last 30 years, is assumed to be correct, he definitely would have

paid the rent qua the same for all these years. There is not a

single statement either in the plaint or in the evidence as led by

the plaintiff to the effect that he ever paid any rent to the

landlord. It is rather the argument of his counsel before this Court

that he is not liable to pay any arrears of rent or mesne profit.

(iv) Section 3 (vii) of the Rajasthan Premises (Control of Rent and

Eviction) Act, 1950 defines tenant as under:

"Section 3 (vii) "tenant" means-

(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and

(b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death."

In terms of the above provision of law, to hold a person to be

a tenant of a premise, there are two essential requirements:

(a) The first is that he is the person by whom or on whose

account or behalf, the rent is paid. Admittedly, in the present

matter, the rent was never paid by Moolchand or his legal

representatives. Even before this Court, it has been argued that

the liability of payment of the rent/mesne profit, if any, is of

[2023:RJ-JD:44092] (14 of 23) [CSA-280/2022]

Lilaram only and not Moolchand. It is also not the case of the

plaintiff that the rent was paid by Lilaram on his behalf. The

specific averment of Lilaram had been that he is only the tenant

who is using the premise and is paying the rent for the same.

Therefore, by any means, it cannot be concluded that the rent was

ever paid or is being paid by Moolchand or his legal

representatives.

Hence, it can safely be concluded that the accrued right of

tenancy, even if any, had been waived/surrendered by Moolchand.

In the present matter, it is clear on record that the same was

waived/surrendered by acquiescence. By all means, Moolchand

cannot be held to be a tenant and hence, the finding of both the

learned Courts below holding him to be disentitled to get the

decree dated 26.09.2001 annulled cannot be interfered with,

being totally in consonance with law and deserves to be affirmed.

(b) As the present was a premise let out for commercial

purposes, the present plaintiffs i.e. the legal representatives of

Moolchand, were under an obligation to prove that they were

carrying on business with him in the premise upto his death.

There is no pleading or evidence available on record to prove the

same. On the contrary, it is the specific admission of PW-1 that no

document pertaining to the business being carried on in the

premise by the plaintiffs is available with him and there is no proof

of the fact that Manoj (plaintiff No.1/2) was carrying on business

with his father Moolchand upto the date of his death. Therefore

also, the present plaintiffs cannot be termed to be the tenants of

the premise in question and hence, cannot be entitled to challenge

the decree for eviction passed against Lilaram.

[2023:RJ-JD:44092] (15 of 23) [CSA-280/2022]

(v) Mostly importantly, if the version of Moolchand, he being a

joint tenant, is admitted, he ipso facto, would be bound by the

decree dated 26.09.2001. As is the settled proposition of law,

once it is held that the tenancy was joint, a notice to one of the

joint tenants is sufficient and further, even the suit against one of

the tenants would be good. Further, a decree passed in such a suit

shall also be binding on all the tenants. The said proposition of law

has been reiterated by the Hon'ble Apex Court in Ashok

Chintaman Juker's case (supra) wherein, while dealing with a

similar situation, the Hon'ble Apex Court observed as under:

"11. The question that arises for consideration in such cases is whether the tenancy is joint or separate. In the former case notice on any one of the tenants is valid and a suit impleading one of them as a defendant is maintainable. A decree passed in such a suit is binding on all the tenants."

Dealing with the facts of the said matter, the Hon'ble Apex

Court held as under:

"16. In the case on hand, as noted earlier, on the death of the original tenant Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of his widow Smt. Kishori Kesrinath Juker. It is not the case of the appellant no. 1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed the appellant no. 1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy

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together. In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the circumstances the decree passed in terms of the compromise entered between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid nor inexecutable against any person who claims to be a member of the family residing with the original tenant, and therefore, a 'tenant' as defined in section 5(11)(c). The position that follows is that the appellants have no right to resist on the ground that the decree is not binding on them. Further, the trial Court and the appellate Court concurrently held that the appellant no. 1 has not been residing in the premises since 1962 i.e. when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant no. 1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. In that view of the matter the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle the appellants have no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord."

In the opinion of this Court, the observations made by the

Hon'ble Apex Court in Ashok Chintaman Juker's case (supra)

and the ratio laid down therein, squarely applies to the present

matter, the facts being totally akin. In view of the above ratio, it

can safely be concluded that Moolchand and his legal

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representatives, the present plaintiffs, would definitely be bound

by the decree dated 26.09.2001. The findings as arrived by both

the learned Courts below, therefore, cannot be interfered with and

the findings on all the three issues deserve to be affirmed.

(vi) Further, the finding of both the learned Courts below taking

adverse inference against the plaintiffs for not coming into the

witness box also does not deserve any interference. In view of the

settled proposition of law as reiterated in Vidhyadhar's case

(supra), where a party to the suit does not appear in the witness

box and state his case on oath and does not offer himself to be

cross-examined, a presumption would arise that the case set up

by him is not correct.

(vii) It is also the settled proposition of law as reiterated in Janki

Vashdeo Bhojwani's case (supra) that a power of attorney (P/A)

holder cannot depose for the principal for the acts done by the

principal and not by him. He is not supposed to have the personal

knowledge of the facts which only the principal would know and

hence, he cannot be cross-examined on those facts.

17. In view of the above analysis and observations, this Court is

of the clear opinion that the present suit is a stark example of a

collusive suit of a highest degree and the most disdainful attempt

of abuse of the process of Court. It is very painful situation that a

landlord, who is seeking eviction of a premise since the year 1970,

has not been able to get the vacant possession of even a part of

the said premise after more than 50 years. A landlord who has a

decree in his favour which has been affirmed till the stage of

second appeal by the High Court way back in the year 2004 and

even has an undertaking of a tenant to vacate the premise on

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13.01.2005, has not been able to get the premise vacated even

after 18 years of the said undertaking. The present is a classic

example wherein the two mischievous litigants have attempted to

make a mockery of the process of the Court and even succeeded

in the same.

Interestingly, both the brothers claim themselves to be

tenants but both deny the liability to pay the rent and the landlord

has been deprived of the rent/mesne profit since years despite the

same being his unfettered right. Herein is a case where one of the

brothers claims himself to be the tenant of both the shops and

contest the suit for more than 30 years. The said brother denies

the other brother to be a tenant. After his having contested for

more than a period of 30 years and having lost, the other brother

comes into picture claiming himself to be the tenant. In the first

suit where the first brother claimed to be the tenant, no objection

was raised by the other brother. In the second suit, where the

second brother claims himself to be the tenant, no objection is

made by the first brother. Interestingly, both of them claim

themselves to be the tenants but hold the other to be liable to pay

the rent. What is crystal clear on record is that Lilaram and his

legal representatives conveniently, in connivance, continued to

enjoy the commercial premises without paying any rent. This

Court has no hesitation in holding that the present suit

proceedings have been initiated by the legal representatives of

Moolchand at the behest of Lilaram/LRs of Lilaram only who

actually is in possession of the premise in question and against

whom a decree of eviction exists.

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18. In Haryana Urban Development Authority and Ors. Vs.

Jagdeep Singh; AIR 2023 SC 2257, the Hon'ble Apex Court

held as under:

"14. For filing the present frivolous appeal, in our opinion, the Appellants deserve to be burdened with heavy cost. This Court had deprecated the conduct of the litigants in flooding this Court with frivolous litigations, which are choking the dockets as a result of which the matters, which require consideration are delayed. Observations made in Dynandeo Sabaji Naik and Ors. v. Pradnya Prakash Khadekar and Ors. (2017) 5 SCC 496 are extracted below:

13. This Court must view with disfavour any attempt by a litigant to abuse the process.

The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow.

Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.

14. Courts across the legal system-this Court not being an exception - are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a

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stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behaviour. Liberal access to justice does not mean access to chaos and Indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner."

In Charu Kishor Mehta Vs. Prakash Patel and Ors.

(Special Leave Petition (C) No.11030/2022) decided on

22.06.2022, the Hon'ble Apex Court held as under:

"18.....Under the facts and circumstances of the case, the Bombay High Court was absolutely justified in imposing the cost of Rs. 5 lakh, on the Petitioner. It is not only the proceedings before the Civil Court initiated by the Petitioner in the year 2022 which was on abuse of the law, but the entire conduct of the Petitioner is a clear reflection of the fact that the Petitioner has been doing so repeatedly, after being a signatory to the settlement as back as 01.10.2013.

19. The Supreme Court in Dalip Singh v. State of Uttar Pradesh and Ors. reported in (2010) 2 SCC 114 has this to say for methods adopted at the hands of

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litigants under similar circumstances. Paragraph Nos. 1 and 2 as produced below:

1 . For many centuries, Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences.

However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

20.....The present petition is no doubt an abuse of the process of law and has caused harm to the other parties to the litigation, some of whom may have been needlessly drawn into the litigation. We may refer here an observation given in the case of Subrata Roy Sahara v. Union of India (2014) 8 SCC 470:

191. The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and

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restlessness, whilst the litigation is pending, without any fault on his part."

In Rajappa Hanamantha Ranoji vs. Mahadev

Channabasappa and Ors., (2000) 6 SCC 120, the Hon'ble

Apex Court held as under:

"13. It is distressing to note that many unscrupulous litigants in order to circumvent orders of courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of courts. Such tendency deserves to be taken serious note of and curbed by passing appropriate orders and issuing necessary directions including imposing of exemplary costs. As noticed, despite eviction order having become final nearly a quarter century ago, Respondent 1 still could not enjoy the benefit of the said order and get possession because of the filing of the present suit by the brother of the person who had suffered the eviction order. Under these circumstances, we quantify the costs payable by the appellant to Respondent 1 at Rs. 25,000/-."

19. In view of the ratio as laid down in the above judgments, this

Court is of the specific view that the present is a clear attempt by

the litigant to abuse the process and take liberty with the

procedures of the Court. As is clear on record, despite an eviction

order having been passed nearly more than 30 years ago, the

respondent could not enjoy the benefit of the said decree because

of filing of the present frivolous suit by the present plaintiff. As

held by the Hon'ble Apex Court in the case of Haryana Urban

Development Authority (supra), the imposition of exemplary

costs is a necessary instrument which has to be deployed to weed

out as well as to prevent the filing of frivolous cases. In the case

of Rajappa Hanamantha Ranoji (supra), the Hon'ble Apex Court