KHATHIJABI Vs. JOSEPHS CHURCH BAJPE

JUDGEMENT

(1.) THOUGH this revision petition is posted for admission, as both the sides are represented by Counsel and at their request matter is taken up for final disposal.

(2.) THE brief facts giving rise to the present proceedings are as follows: the respondent herein-St. Joseph's Church, Bajpe, represented by parish Priest had filed ejectment suit (O. S. No. 1019 of 1993) against its tenant Sri S. K. Ismail whose wife is the present petitioner. It is not in dispute that such ejectment suit was filed after issuing notice of termination as required under Section 106 of the Transfer of Property Act. It appears, during the pendency of the suit, the tenant expired and to bring his legal representative on record, an application was filed. However, as the original tenant himself had raised question regarding maintainability of the suit, the same was considered by the Trial Court and on finding that the suit is not maintainable, permitted the landlord, respondent herein, to withdraw the plaint. After such order, the respondent filed small causes case which was numbered as S. C. No. 5 of 1996 against Sri S. K. Ismail who was deceased by then. On noticing that small causes case has been filed against a dead person, the respondent filed an application under Order 23, Rule 1 of the CPC seeking permission of the Court to withdraw the proceedings of small causes case with liberty to file afresh which is allowed by the Court and thereafter Small causes No. 20 of 1998 came to be filed. After issuance of the notice to the respondent and considering their rival contentions, the Small causes Court by the impugned order dated 5-2-2003 upheld the contentions of the respondent and ordered for eviction of the petitioner. Hence, the present revision petition.

(3.) THE learned Counsel appearing for the petitioner vehemently contended that the ejectment order passed by the Small Causes Court is contrary to law inasmuch as there was no notice of termination issued to the petitioner as is mandatorily required. He also contended that since the Small Causes No. 5 of 1996 was filed against a dead person, the court could not have permitted the respondent to withdraw the suit and further permit him to file the present case. In this regard he contended that as Ismail, the predecessor in title of the petitioner was already dead when S. C. No. 5 of 1996 was filed, any order passed in that proceeding was illegal as the proceeding stood abated by operation of law and hence as the order was passed against the dead person whose legal representative is the petitioner, such order would not have been inured to the benefit of the respondent. In this regard, the learned Counsel has relied upon the decision in the case of Makhan Lal v Mst. Chandravati. On the other hand, the learned Counsel for the respondent argued in support of the findings of the Small Causes Court inter alia to contend that merely because the original contractual tenant is dead and the petitioner herein being his legal representative continues in his possession of the premises 'does not ipso facto mean that contractual tenancy is continued with her also. He contended that once there is termination of tenancy of Ismail (deceased), his possession thereafter is not by virtue of being a statutory tenant but as in view of the protection given by the law namely, he cannot be evicted without due process of law. On these among other grounds, he prayed for dismissal of the civil revision petition. The learned Counsel has relied upon the decision in the case of mohan Lai Goela and Others v Siri Krishan and Others.