Daisy Mantosh vs Nemchand Saraogi and Another

Altamas Kabir, J.—This appeal is directed against Order No. 14 dated 20th July, 1998, passed by the learned 1st Civil Judge (Senior Division) at Alipore, allowing the defendant''s application under Order 7 Rule 11 read with Section 151 CPC upon holding that the suit was not maintainable, having been filed against a dead person, namely, the defendant No. 3, and dismissing the suit on the ground of maintainability. While the defendant No. 3 died on 25th August, 1991, the suit was filed on 15th July, 1997, long after his death. Appearing for the respondents, Mr. Sudhis Dasgupta took a preliminary objection that the appeal was not maintainable as it was not in form. He submitted that since the suit had been dismissed a regular First Appeal ought to have been filed and the Memorandum of Appeal should have been accompanied by the decree of the learned trial court as provided in sub-rule (l) of Rule (1) of Order 41 of the Code of Civil Procedure.

Mr. Dasgupta submitted that if no decree had been drawn up in respect of the order appealed against, a certificate to that effect should have been filed along with the Memorandum of Appeal as contemplated in Order 20 Rule 6A Civil Procedure Code.

Mr. Dasgupta submitted that in the absence of either, the Appeal was not in form and was liable to be dismissed as being not maintainable.

Appearing for the appellant, Mr. Saptansu Basu, learned advocate, contended that it was really the defendants application under Order 7 Rule 11, Civil Procedure Code, which had been allowed by the impugned order and that the suit had only incidentally been dismissed as a consequence thereof. Mr. Basu urged that the said question had been considered at the time of admission of the appeal and by the order dated 9th November, 1998, the appeal was directed to be classified as a "First Miscellaneous Appeal" since the order of rejection of the plaint under Order 7 Rule 11 CPC would have the effect of a deemed decree.

Mr. Basu referred to a decision of the Peshawar Judicial Commissioner''s Court in the case of Feroz Shah vs. Kalu Ram & Anr., AIR 1936 Peshawar 155, wherein with reference to the definition of "decree" in Section 2(2) CPC it was held that an appeal from an order rejecting a plaint was not required to be accompanied by a separate decree sheet.

Reference was also made to the decision of the Hon''ble Supreme Court in Jagat Dhish Bhargava vs. Jawahar Lal Bhargava, AIR 1961 S.C. page 832, and Phoolchand & Anr. vs. Gopal Lal, AIR 1967 S.C. page 1470, wherein while observing that the filing of a certified copy of the decree along with the Memorandum of Appeal was mandatory, there could be circumstances where an appeal may be competent even though a copy of the decree may not have been filed along with the Memorandum of Appeal.

Mr. Basu submitted that having regard to the nature of the impugned order, the provisions of Order 20 Rule 6A CPC would not be applicable to the instant appeal and the appeal must be treated to be in form.

Having considered the submissions made on behalf of the respective parties and the order passed on 9th November, 1998, we see no reason to differ from the views expressed in the said order. The order impugned in the appeal is essentially an order on the defendant''s application under Order 7 Rule 11 CPC which has the effect of a deemed decree as explained in Feroz Shah''s case (supra). The dismissal of the suit is incidental to the said order and the appeal must be held to be in form.

We do not therefore, find any merit in the preliminary objection taken by Mr. Dasgupta and we are of the view that the appeal is maintainable in its present form.

On the merits of the case it was urged on behalf of the appellants that the inclusion of Prithviraj Saraogi as defendant No. 3 in the suit, inspite of his death prior to the institution of the suit, did not vitiate the suit, since the tenancy in question was a joint tenancy where on the death of one of the joint tenants the tenancy passed by survivorship to the other joint tenants. It was urged that the suit was maintainable against the surviving joint tenants and the heirs of the defendant No. 3 were not necessary parties to the suit.

Mr. Basu submitted that the agreement dated 24th April, 1979, whereby the tenancy had been created, clearly indicated that the defendants Nos. 1, 2 and 3 in the suit had been inducted as joint tenants in the suit premises and not as tenants in common as there was unity of title in respect of the tenancy so created coupled with unity of possession. Mr. Basu urged that in the facts of the case it was not even necessary to serve notice to quit on all the joint tenants and the suit could be filed against all the joint tenants, if such notice had been served on any one of them.

In support of his submission Mr. Basu firstly relied on the decision of the Hon''ble Supreme Court in the case of Dr. K.A. Dhairyawan & Ors. vs. J.R. Thakur & Ors., AIR 1958 SC page 789. In the said case the Hon''ble Supreme Court was considering the maintainability of a suit where a person, who had died prior to the institution of the suit, had been made defendant No. 4 in the suit. When such fact was discovered, her name was struck off as a defendant in the suit. While considering the matter, the Hon''ble Supreme Court observed that the suit had been contested only by the defendants Nos. 1, 2 and 3 and the defendant Nos. 4 and 5, who were purported to be sued as representatives of one of the joint lessees, had not taken any interest in the suit premises. In such circumstances the Hon''ble Supreme Court was of the view that since the defendants Nos. 4 and 5 were not necessary parties to the suit, the court could proceed with the suit in their absence, despite the fact that the defendant No. 4 had died prior to the filing of the suit.

Reference was also made to another decision of the Hon''ble Supreme Court in Kanji Manji vs. The Trustees of the Port of Bombay, AIR 1963 SC page 468, where it was held that in a joint tenancy, a notice to one of the tenants was sufficient, and the suit for the same reason was also good.

The same view was uniformly expressed by this Court in Smt. Sumilita Bhattacharya & Anr. vs. Smt. Nila Chatterjee, 1989(2) CLJ page 351, Ajit Kumar Roy vs. Satya Bala Dutt & Ors., 78 CWN page 19, Amal Krishna Aditya vs. Ganesh Chandra Das, 1998(2) CWN page 521, and in Sambhu Charon Hazra vs. Smt. Bandana Laha, Cal L.T. 1993(1) H.C. page 113.

Mr. Basu urged that without applying its mind the learned Court below had erroneously held that the suit was not maintainable since Prithviraj Saraogi who had died prior to the filing of the suit had been impleaded as the defendant No. 3 in the suit.

Mr. Dasgupta, however, contended that since the concept of joint tenancy was foreign to Hindu Law, the defendants were tenants in common and on the death of one of them his interest did not devolve on the other tenants in common by survivorship, but on his heirs who succeeded to his interest in specific shares. Mr. Dasgupta submitted that since the deceased, Prithviraj Saraogi, had been impleaded as defendant No. 3 in the suit and since this was a tenancy in common, the learned Court below had rightly held that the suit was not maintainable.

Mr. Dasgupta submitted that a joint tenancy connotes unity of title, possession, interest and commencement of title, but in a tenancy in common, there may be unity of possession and commencement of title, but the other two features would be absent.

In support of his submission, Mr. Dasgupta firstly referred to the decision of the Hon''ble Supreme Court in the case of Boddu Venkatakrishna Rao & Ors. vs. Smt. Boddu Satyavathi & Ors., AIR 1968 SC page 751, wherein the principle of joint tenancy fell for consideration and an observation of the Privy Council was quoted with approval to the following effect:

The principle of joint tenancy appears to be unknown to Hindu Law, except in the case of coparcenary between the member of an undivided family.

Mr. Dasgupta also referred to a Full Bench decision of the Allahabad High Court in the case of Ram Awalamb vs. Jata Shankar, AIR 1969 All. pages 526 where the same views were expressed.

Mr. Dasgupta submitted that nowhere in the plaint has a case of joint tenancy been made out and in the facts and circumstances of the case, no interference was called for with the order under appeal as the suit had been rightly held to be incompetent having been filed against a dead man who was a tenant in common with the defendant Nos. 1, 2 and 4.

From the agreement executed between the parties on 24th April, 1979, it appears to have been the intention of the parties to create a joint tenancy in respect of the tenanted premises since the defendants were all jointly referred to as the tenant of the said premises. In such circumstances, on the death of Prithviraj Saraogi his interest in the tenancy passed to the other joint tenants by survivorship. Consequently, the suit as framed must be held to be maintainable in the absence of the heirs of the deceased defendant No. 3. In the said set of facts, the decision in Dr. K.A. Dhairyawan''s case, relied upon by Mr. Basu, appears to fit the case.

Since the defendant No. 3 died prior to the institution of the suit, his name shall be struck off as a defendant in the suit and the suit should proceed against the other defendants.

Accordingly, the order dated 20th July, 1998, passed by the learned Court below allowing the defendant''s application under Order 7 Rule 11 read with Section 151 CPC and dismissing the suit on grounds of maintainability, is set aside. The name of the defendant No. 3 be struck off from plaint and the learned Court below is directed to proceed with the suit against the other defendants.

There will be no order as to costs.

Let a copy of this order be communicated to the Court below expeditiously.

If an urgent xerox certified copy of the judgment is applied for, the same is to be supplied expeditiously, subject to compliance with all the required formalities.

G.C. De, J.

I agree.