ISWAR PURNANANDA MAHADEB JEW Vs. RAM NARAIN KAPOOR

JUDGEMENT

(1.) This Rule has been obtained by the plaintiff. The suit for recovery of arrears of rent was decreed by the Chief judge, Court of Small Causes Calcutta but whose decision was reversed by the Full Bench on an application under section 38 of the Presidency Small Causes Courts Act. The suit was filed for recovery of sum of Rs. 1218 being the arrears of rent from July 1961 to June 1971 at the monthly rate of Rs. 50.75 per month. The defendant denied that there was any relationship of landlord and tenant between the parties. The defence was also taken to the effect that the suit was bad for non-joinder of necessary, parties. Certain other defence was also taken but we are not concerned with those in the present Rule. The trial court upon a consideration of the materials on record decreed the suit. Against the decision of the trial court the defendant preferred an application for new trial under section 38 of the Presidency Small Causes Courts Act. The Full Bench took the view that as the defendant died during the pendency of the suit and as all his heirs and legal representatives were not brought on record, the trial court was not right in passing a decree in favour of the plaintiff. But the Full Bench after setting a side the judgment and decree of the trial court remanded the suit to the trial court for a fresh decision after giving the plaintiff an opportunity to bring on record the other heirs and legal representatives of the deceased defendant. The lower appellate court relied on the decision in Asha Gupta and Anr Vs. Sipra Dutta and ors. reported in 80 CWN 187 and on the basis thereof held that the plaintiff was not entitled to proceed with the suit without bringing on record the heirs and legal representatives of the deceased defendant.

(2.) Mr. Chatterjee learned Advocate appearing in support of the Rule has contended that the lower appellate court was not right in proceeding to decide the case on the basis of the decision mentioned above. He has pointed out that the decision in 80 CWN page 187 was one for eviction under the West Bengal Premises Tenancy Act and there the question for consideration was whether the heirs and representatives of a deceased defendant were also tenants within the meaning of the said Act. Mr. Chatterjee his pointed out that the decision of the lower appellate court is contrary to a Full Bench decision of this Court in the case of Kailash Ch. Mitra Vs. Brojendra K. Chakravarti and ors. reported in 29 CWN 1000 where it has been held that a decree for the entire rent against some of the heirs and legal representatives in the absence of the others is not a nullity and is valid and effective as a decree for money. The said Full Bench decision is on all fours with the facts of the present case and is a binding authority for the decision of the present case. Applying the Full Bench decision mentioned above to the present case it must be held that the order of remand passed by the lower appellate court cannot be sustained in law.

(3.) This rule is therefore made absolute. The judgment and decree passed by the Full Bench of the Court of Small Causes, Calcutta are set aside and those of the trial court are restored. There will be no order as to costs.