FARHATHUNNISSA Vs. RAHIMUNNISSA

JUDGEMENT

(1.) This appeal is directed against an interim order passed by the learned Judge presiding over the XV Additional City Civil Court, Bangalore City, dated 23-11-1994 in O.S. No. 2204 of 1994. It is unnecessary for me to go into detail recitals because the two plaintiffs before the trial Court who are the respondents herein claim to be the daughters of one Syed Habibulla. They are the married daughters and the dispute pertains to certain non- residential premises in respect of which the deceased father was the tenant. After his death, the wife and two sons claim to be the persons on whom the tenancy rights had devolved and the contention was that one of the sons was running a watch repairing business in the premises after the death of the father in 1984. The other son who was residing separately had nothing to do with these premises. The Rent Control Court passed a decree of eviction in the year 1989 and it is relevant to point out that the matter was carried in revision to this Court and the C.R.P. No. 2919 of 1987 came to be finally disposed of by this Court in the year 1992. The decree was finally confirmed and at the request of the petitioners, the court granted them a period of two years time to restore the possession. Obviously, on the expiry of that period of time if the possession was not restored the original decree could have been executed. When almost two years had elapsed in 1994, the present suit is filed by the two married daughters wherein it is contended that they ought to have been made parties to the original litigation, that the decree in question does not bind them, that they have independent rights and that consequently, they are entitled to a injunction simplicitor restraining the landlords from executing the decree, of the Rent Control Court against them. The learned trial Judge after an elaborate hearing and a very careful consideration of the material placed before him and in particular, the law on the point came to the conclusion that the objections raised by the plaintiffs before him were justified, that they had an independent right as heirs of the deceased tenant which was unaffected by the decree and that consequently, they were entitled to an injunction order, as prayed for. It is against this order that the present appeal has been filed.

(2.) This is a litigation that has had a long history and the grievance canvassed at the stage of admission was that the interim injunction order passed by the learned trial Judge is unjustified insofar as it is not permissible for this Court to have restrained the respondents from executing the final decree and that in these circumstances, interference was called for. In support of the appeal, the appellant's learned Advocate has submitted that the original tenant having died the only protection that the law envisages is with regard to a restricted category of persons and that those rights have been completely extinguished on the passing of the decree by the Rent Control Court which has now become final. It is submitted that the persons who had claimed any right in respect of the premises and who claim to be in possession thereof were rightfully made parties and heavy reliance is placed on the pleadings before that court which undisputedly indicate that it is only one of the sons who had contested that proceeding and who claimed protection under that Statute. There is a clear-cut unequivocal statement made before the court to the effect that none of the other parties are either in possession or claim any rights and in these circumstances, the appellant's learned Advocate has advanced the submission that the decision of the Supreme Court in Pushpa Ram and Others v Bhagwanti Devi and Another, would apply squarely to the facts of this case. While considering a situation of the present type, the Supreme Court as far as non-residential premises are concerned, upheld the view that where it is specific from the pleadings that only the party before the court is claiming protection or rights and where it is very clear that the other parties have not come forward to agitate any such rights, the principle of implied surrender must apply and the Supreme Court consequently held that the decree passed against the contesting parties is a final one which binds all the heirs. It is the conduct of the remaining heirs that the Supreme Court took cognisance of and in these circumstances, the Supreme Court held that the fact that they had not putforward any independent claim while the litigation was alive is concrete and conclusive proof of the fact that there was an implied surrender. Applying this principle, the appellant's learned Advocate submitted that the plaintiffs before the trial Court have no right whatsoever and that the learned trial Judge has grossly erred in law in having passed the interim order in question. The appellant's learned Advocate also re-inforced his argument that the decree passed by the court which is binding vis-a-vis the original defendants is also binding against the remaining persons namely the present plaintiffs and in this regard, he placed reliance on a decision of this Court in Gopalakrishna Sharma v Jyothi Nagaram Chick Venkatashamaiah, wherein, while considering a similar situation under the Karnataka Rent Control Act this Court held that in the absence of a party having set up an independent claim, that the decree passed by the Karnataka Rent Control Court binds all persons who are claiming under the original tenant.

(3.) Appearing on behalf of the respondents who are the original plaintiffs, Mr. Shetty sought to distinguish these two decisions. As regards the decision in Gopalakrishna's case, it is his submission that the plaintiffs are agitating their individual and independent rights in their capacity as heirs of the original tenant and that they are in no way concerned with any statements that may have been made in the course of the earlier legal proceedings to which admittedly they had not been made parties. It is his submission that as daughters of the original tenant, they were necessary parties to the original proceeding and since they were not party-defendants, they are in no way bound by the decree and that this Court has taken the view that it is open to a persons who are not bound by a decree to independently move the court and agitate their rights. The principle enunciated by the Division Bench of this Court is not to be construed in a vaccum but has to be construed in relation to the facts of a case but more importantly in relation to the nature of the proceedings that we are concerned with. The rights that the plaintiffs are now seeking to agitate are rights that have relation to the law that can only flow from there having been the daughters of the deceased tenant. What is wrongly construed as an independent status or an independent right is in fact a wholly dependent one and something that owes it in existence entirely to the relationship with the original tenant. There again, one needs to take cognisance of the fact that a right of title or ownership is very different to the limited protection that the law may afford to a relative of a deceased tenant or one who was dependent on the tenant or residing with the tenant at the time of the tenant's death. It is only a very limited protection that derives and for good reason. Under these circumstances, that status of legal protection from eviction cannot be wrongly construed as an independent right or a independent status and taken to be on par with the situation that may arise in other proceedings. The significant fact remains that the two plaintiffs did not at any time putforward any independent claim with regard to the tenancy rights for several years. They did not agitate any such position while the proceeding was before the Rent Control Court or for that matter earlier when it was before this Court. Even in the present proceedings, there is no case made out that they were in possession of the premises at any time or that they were in any way connected with the business, the restricted plea that is canvassed being that they were getting some income out of the business that was being carried on there. The point of time at which this suit has been filed speaks volumes and the lack of material produced before the trial Court is also of considerable consequence. It is in relation to these factors that this Court will have to consider whether the learned trial Judge was right in affording them an independent status or in holding that they ought to have been the necessary parties to the earlier rent control proceedings and in the absence thereof that the decree does not bind them.