ABDUL RAZZAQUE Vs. MEHERUNNESSA BEGUM & ANOTHER

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 7th Feb., 1997 passed in Ejectment Suit No. 106 of 1986 by the learned Judge, 3rd Bench, City Civil Court, Calcutta. The suit for eviction of the defendant was decreed on the ground of subletting. The issues with regard to non-joinder of parties and subletting were contentious. Whereas the rest of the issues were not very material for the purpose of this appeal. However, the Court had held with regard to the ownership of the landlord in favour of the plaintiffs. On the question of default in payment of rent, it was held that the defendant was not a defaulter. The notice was held to be valid and properly served. So far the question of title, which is now being raised by the learned Counsel for the appellant, cannot be raised in view of Sec. 116 of the Evidence Act, particularly in view of the statement made by the defendant in paragraph 10 of the written statement where the defendant has admitted that he is a tenant under the plaintiffs.

(2.) So far as the question of non-joinder of parties is concerned, it is contended that during the pendency of the suit, the plaintiff's No. 3 having died, his name was deleted without substituting his heirs. In the absence of such heirs, the suit could not be maintained. The fact remains that there was a 'Hebanama', which was pointed out to be in writing and, therefore, according to the learned counsel for the appellant, unless it is a registered one, it did not convey any title. The Hebanama is made exhibit which appears to be in writing, but the writing is evidencing the Hebanama made orally, as is apparent from the said exhibit. It is not necessary to go into the said question in view of the fact that ⅓rd share was purported to be bequeathed to the plaintiff No. 1. All the other heirs of the deceased had consented to it. At the same time, none of the other co-owners had objected to the suit for eviction of the defendant/appellant. Be that as it may, the co-owners has every right to maintain the suit for eviction against the defendant even in the absence of the other co-owners and even though they may not be party to it unless objected to by the other co-owners. It was so held in case of Kanta Goel Vs. B.P. Pathak & Others, AIR 1977 Supreme Court 1599. Therefore, on this ground, we do not find that there was any defect of non-joinder of parties.

(3.) Be that as it may, Order 1 Rule 9 of the Code of Civil Procedure (Code) prescribes that no suit is defeated by reason of non-joinder of parties except in case of non-joinder of necessary party. Sec. 99 of the Code provides that unless the necessary party is omitted, the Appeal Court will not reverse or remand the case. Unless the party omitted is a necessary party, the suit cannot be defeated. Similarly, a decree on appeal cannot be reversed or substantially varied or remanded unless the non-joinder is of a necessary party. Necessary parties are parties whose presence is essential and in whose absence no effective decree can at all be passed. In a suit where the, co- owners have same interest and such interest is not affected by reason of the decree, and, on the other hand, the benefit of the decree equally enures to them and to which such co-owners have no objection, omission of co-owners would not be a case falling within the exception to Order 1 Rule 9 or Sec. 99 of the Code. That apart, absence of co-owners, when not objected to by any of them, does not stand in the way of passing an effective decree. Inasmuch as, the co-owners have between themselves an identity of interest. Such interest can be represented by any of the co-owners when not objected to by anyone of them, an implied consent of representation by the co- owners/plaintiffs is to be presumed when the decree is not supposed to affect such co-owner adversely. Eviction of tenant does not seem to adversely affect the other co-owners-landlords. On the other hand, it enures to their benefit. It is on this principle a co-owner-landlord can maintain a suit for eviction against tenant/tenants, without making the other co-owners parties, unless objected to by any such co-owner. In the present case, in our view, absence of one or the other co-owner will not defeat the suit. Nor does such absence affect the merit of the case or jurisdiction of the Court. As such the decree cannot be reversed.