SUDHAKAR KASHIRAM ALIAS KASHINATH BHAVSAR Vs. NAGINDAS ATMARAM

JUDGEMENT

(1.) This application is directed against the judgment and decree of the Bench of the Small Cause Court Ahmedabad setting aside the decree of the trial Court and dismissing the plaintiffs suit With costs.

(2.) The facts giving rise to this application in a nut-shell are as under : The appellants are the sons of deceased Kashiram who was a tenant of the suit premises bearing M. C. No. 2025-2 situated in Bhanderi pole Dariapur ward No. 1 Ahmedabad. At the time of the death of Kashiram the appellants and their mother Saraswati were residing with him. Kashiram died on 9-7-1948. After his death Saraswati went on paying the rent of the suit premises which was accepted by the landlord till a dispute arose in 1959. In 1959 the landlord filed a suit No. H. R. P. 1877 of 1959 against Saraswati for eviction on the ground of non payment of arrears of rent. A decree for eviction was passed against her but in appeal the appellate Court in Civil appeal No. 143 of 1962 reversed the decree. But the High Court in revision application No. 98 of 1964 restored the decree of the trial Court on 13-3-1967. The present appellants therefore filed a suit alleging that as they were not parties to the previous decree the same was not binding on them. According to them they were residing with deceased Kashiram at the time of his death and as such they were tenants of the suit premises. They therefore contended that the decree obtained against Saraswati was not binding on them. According to them the landlord had obtained it fraudulently and illegally. They stated that when the previous suit was filed against Saraswati they were minors. They therefore prayed that a declaration be made that they were the tenants of the suit premises and prayed for a further declaration that the decree obtained by the landlord against Saraswati was not binding on them and prayed for an injunction restraining the defendant landlord from executing the decree. The suit was decreed by the trial Court. However the Small Cause Bench reversed the decree and dismissed the suit. Against the said judgment and decree of the Small Cause Bench at Ahmedabad this revision application has been preferred to this court.

(3.) Mr. H. M. Mehta learned Advocate for the appellants urged that under sec. 5(11)(c) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Act any member of the tenants family residing with him at the time of his death as may be decided in default of an agreement by the court would be a tenant. He urged that both the applicants at the time of the death of their father were minors. It was not possible for them to arrive at an agreement as to who should be a tenant in place of their father. Under these circumstances he urged that when an agreement was not possible between the parties due to minority of the applicants it was the Court which could appoint any member of the tenants family as a tenant in the place of the deceased tenant. No such declaration was sought from the Court and the position remained that after the death of Kashiram the widow as well as the minor sons continued in possession of the suit premises as tenants and rent was being paid by Saraswati on behalf of them all. He urged that under the circumstances it cannot be said that Bai Saraswati alone was the tenant of the suit premises. He submitted that it was not for the landlord to choose any member of the family as tenant in place of the deceased tenant and if he filed a suit against Saraswati treating her as tenant and obtained a decree fraudulently that decree naturally would not bind the other members of the family who had equal right to stay in the premises in view of the definition of `tenant in sec. 5(11)(c). He therefore urged that the decree obtained by the landlord against Saraswati cannot be said to be binding on the appellants and therefore the view taken by the bench of the Small Cause Court Ahmedabad that impliedly the plaintiffs had acquiesced in Bai Saraswati being treated as tenant was not correct.