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Judgment
Dharam Chand Chaudhary, J—Defendant in the trial Court is in the second appeal before this Court. She is aggrieved by the judgment and decree passed by learned Additional District Judge-I, Shimla in Civil Appeal No. 47-S/13 of 2013/12 decided on 4.11.2014, whereby the appeal has been dismissed and the judgment and decree passed by learned Civil Judge (Senior Division), Court No. I, Shimla in Civil Suit No. 58/1 of 2008, dated 31.5.2012 has been affirmed.
The subject matter of dispute in the present lis is a Flat comprising four bed rooms, one hall, one kitchen, two bathrooms and open terrace in the first floor of the building (hereinafter referred to as the ''demised premises'') namely, Kasturba Gandhi National Memorial Trust, Rockwood Shimla. As per the facts, which are not in controversy, the Trust, namely, Kasturba Gandhi National Memorial, Surbodya Bal Ashram is the owner of the building in which the demised premises situate. One Shri Bhawani Prakash Sharma, father-in-law of defendant-appellant was working as office Secretary in Sarbodya Bal Ashram, Rockwood, Shimla, being managed and run by the Trust. The demised premises was allotted as residential accommodation to said Shri Bhawani Prakash Sharma during the course of his employment. He stood retired from the plaintiff trust on 31.5.2002. Keeping in view the long services, he rendered, the plaintiff Trust allowed him to retain the demised premises up to December 2002 on compassionate ground. He however, died on 28.3.2004 and was pre-deceased by his wife. Till his death, he retained the demised premises for residential purposes. Said Shri Bhawani Prakash Sharma left behind his son Shri Jyoti Prakash Sharma, the husband of defendant. Said Shri Jyoti Prakash also died on 13.2.2005. The defendant, who is an employee of Electricity Board and working as Senior Assistant did not vacate the demised premises on the death of her father-in-law and also her husband irrespective of she was being paid house rent by her employer, the Electricity Board. Neither the defendant nor her husband has any right to retain the demised premises on and after the retirement of Shri Bhawani Prakash Sharma aforesaid. Hence, being in unauthorized occupation was requested by the plaintiff Trust to handover the vacant possession thereof, but of no avail. She was also served with a legal notice. On this also, she did not vacate the demised premises. Therefore, the plaintiff trust ultimately filed the suit for recovery of possession of the demised premises and also for the recovery of use and occupation charges @ Rs. 5,000/- per month w.e.f. 1.1.2003 till the delivery of the vacant possession of the premises in question.
The defendant when put to notice has contested the suit. In preliminary, she raised objections qua its maintainability, bad for non-joinder of necessary parties and locus standi etc. of the plaintiff to file and maintain the same. In view of withdrawal of the previously instituted civil suit No. 110/1 of 2005 and also rent petition No. 46/2 of 2003, qua the same subject matter of dispute, plea of res judicata was also raised.
On merits, it has been pleaded that permanent/irrevocable licence qua the premises in question was granted by the plaintiff Trust in favour of her father-in-law late Shri Bhawani Prakash Sharma, Therefore, she is legally entitled to retain the same. In the alternative, it has been submitted that she has become owner of the demised premises by way of adverse possession. Also that, there was no privity of contract between Shri Bhawani Prakash Sharma and the plaintiff Trust.
The plaintiff in replication has denied the contents of preliminary objections, being wrong and on merits, reiterated the case as set out in the plaint.
Learned trial Court has framed the following issues:
"1) Whether the plaintiff is entitled for possession of the suit land consisted of four bed room, one hall, one kitchen, two bath rooms and open terrace in the building known as Kasturba Gandhi, National Memorial Trust? OPP
2) Whether the plaintiff is entitled for the recovery of use and occupation charges of the suit land, as alleged? OPP
3) Whether the present suit is not maintainable? OPD
4) Whether the suit of the plaintiff is bad for non- joinder of necessary parties? OPD
5) Whether the plaintiff has no locus standi to file and maintain the present suit? OPD
6) Whether the suit of the plaintiff is barred by limitation? OPD
7) Whether the suit of the plaintiff is hit by principle of res judicata? OPD
a) Whether Sh. Bhawani Prakash had became the owner of the suit premises by adverse possession? OPD
b) Whether the licence granted in favour of the plaintiff was irrevocable, if so its effect? OPD
8) Relief."
Parties were put to trial on all the issues, so framed. On appreciation of the evidence available on record, the trial Court has overruled the objections qua maintainability, non-joinder of necessary parties, locus standi and limitation, as raised in the written statement while answering issues No. 2 to 6 against the defendant. The claim of the defendant that the suit is hit by the principle of res judicata has also been discarded. The Court below has however, held that Shri Bhawani Prakash had never become owner of the demised premises by way of adverse possession nor irrevocable licence was granted by the plaintiff Trust in his favour and to the contrary while answering issues No. 1 and 2 in favour of the plaintiff, the suit has been decreed in favour of the plaintiff for possession of the demised premises and also recovery of use and occupation charges @ Rs. 2,000/- per month w.e.f. November 2005 till 31st May, 2012. The plaintiff was also held entitled to the interest @ 6% per annum on the decreetal amount, till the same is recovered.
In appeal learned Lower Appellate Court has affirmed the judgment and decree passed by the trial Court and dismissed the appeal.
The legality and validity of the judgment and decree has been questioned by the defendant on the ground inter-alia that on account of withdrawal of the eviction petition filed by the plaintiff under the provisions of H.P. Urban Rent Control Act, the suit is barred under the provision of Order 23 Rule 4(b) of the Code of Civil Procedure as no leave was obtained to file fresh suit. The suit for want of all trustees as plaintiffs was not maintainable. Both Courts below have erred in not taking note of provision to this effect contained in the Indian Trust Act. The so called authorization in favour of Shri H.S. Verma vide resolution Ext. PW1/A has not been proved in accordance with law. Therefore, the findings as recorded are vitiated and the judgment and decree under challenge is not legally sustainable. The suit was not maintainable being barred under the provision of Section 11 of the Code of Civil Procedure. However, this aspect of the matter has also been ignored.
Keeping in view that the demised premises belongs to the Trust, running a Bal Ashram and that the same is required for housing the orphans and destitute children coupled with the factum of both Courts on appreciation of the evidence have decreed the suit against the appellant-defendant, the appeal has been taken up for hearing at admission stage itself after exploring the possibility of amicable settlement also.
Mr. Suneet Goel, Advocate, appearing on behalf of the appellant/defendant has mainly emphasised on two grounds: Firstly, the suit having not been filed by all the trustees is hit by the provisions contained under Indian Trust Act, hence could have not been entertained and in view of the withdrawal of the rent petition and civil suit previously instituted qua the same subject matter of dispute, the present suit allegedly barred by principles of res judicata and under Order 23 Rule 1(4)(b) of the Code of Civil Procedure was not maintainable.
Mr. Adarsh K. Vashista, Advocate, appearing on behalf of the respondent/plaintiff while repelling the arguments addressed on behalf of the appellant has urged that one of the trustees, if authorized, can file and maintain the suit and also that the rent petition as well as the previous suit not decided on merits and rather withdrawn without inviting any findings on merits, the present suit is not hit by the principles of res judicata enshrined under Section 11 of the Code of Civil Procedure nor barred under Order 23 Rule 1(4)(b) of the Code of Civil Procedure.
Now coming to the claims and counter claims so put-forth by the parties on both sides. The present is a case where the suit has been filed by an authorized representative of all the trustees, Sh H.S. Verma, Office Secretary of Sarvodya Bal Ashram, Shimla. The resolution whereby said Sh. Verma has been authorized to file the suit is Ext. PW1/A. The language of this document amply demonstrates that the Executive Committee of the Trust in its meeting held on 10.3.2007 has resolved to authorize Sh. Hari Singh Verma, aforesaid, on behalf of the trustees (including holding trustees) of the trust to sign and execute petitions, pleadings, applications, plaints, affidavit, Vakalatnamas, power of attorney and other documents in connection with any legal proceedings by or against the Trust. The present, therefore, is not a case where the suit has been filed by a trustee or co-trustee and rather by all the trustees through their authorized representative. Though, it has been urged that this document is not proved legally and validly, however, without indicating the defect(s) if any in its proof. Above all, when PW1 Hari Singh Verma, the above authorized representative, produced this document while in the witness box, no objection was raised on behalf of the defendant qua the mode of its production and defect, if any, in its proof.
No doubt, Full Bench of Gujarat High Court in Atmaram Rachhodbhai Vs. Gulamhusein Gulam Mohiyaddin and Another, AIR 1973 Guj 113 : (1972) GLR 828 has held that all co-trustees must join in filing the suit to recover the possession of the property of the trust from a tenant after determination of the lease and a single co trustee, even if he is a managing trustee, cannot maintain such suit against the tenant without joining the co-trustees, may be in capacity of defendants, if the co-trustees are not ready and willing for their impleadment as plaintiffs.
However, the present is not a case which has been filed by one of the co-trustees and rather it has been filed by all the trustees through their authorized representative, none else but the Office Secretary of the Sarvodya Bal Ashram. Above all, the present is not a case of recovery of possession of the demised premises from a tenant and rather, the defendant is a trespasser to whom the demised premises was never leased out or given on rent as tenant by the trust.
True it is, the demised premises was allotted for residential purpose to one Sh. Bhawani Parkash Sharma, father-in-law of the defendant, at such a stage when he was working as a Office Secretary of Sarvodya Bal Ashram, free of costs. It is not the case of the defendant that the demised premises was leased out or rented out to said Sh. Bhawani Parkash Sharma on payment of rent. She has abandoned the plea raised in the written statement that permanent/irrevocable licence was granted by the plaintiff in favour of her father-in-law or in the alternative, she has become owner of the demised premises by way of adverse possession as no such ground has been raised in the grounds of appeal. Learned counsel has rather fairly submitted that such a plea raised in the written statement has now been abandoned. Therefore, on facts also, this case is distinguishable from Atmaram Ranchhodbhai''s case (supra).
Similarly, the judgment of Delhi High Court in Duli Chand Vs. Mahabir Pershad Trilok Chand Charitable Trust, AIR 1984 Delhi 145 : (1984) 25 DLT 70 : (1984) 6 DRJ 153 , is also distinguishable on facts, because in this case the suit has been filed by all the trustees, of course, through their authorized representative and the relief sought is the recovery of the possession of the demised premises and for recovery of use and occupation charges against the defendant, none else but a trespasser and not a tenant.
If coming to the judgment of the Apex Court in In Re: H.E.H. The Nizam''s Jewellery Trust, AIR 1980 SC 17 : (1979) 4 SCC 602 , the same is also distinguishable on the facts of this case, because here the issue involved is not the sale of trust property and rather recovery of possession of the premises from the defendant, a trespasser and the suit has been filed by all the trustees through their authorized representative.
If coming to the ratio of the judgment of Punjab High Court in Lakha Singh Hamir Singh Vs. Harbhajan Singh Sunder Singh and Another, AIR 1958 P&H 102 , the same reveals that it is open for the body of the co-trustees to authorize one of the them to perform an act, of course on behalf of the trustees and the trustee, who is so authorized, is to be considered an agent of all co-trustees and not as an individual trustee. Anyhow, in the case in hand, suit has been filed by all the trustees, as already discussed in para (supra).
I am, thus, not in agreement with learned counsel for the appellant/defendant that both the courts below have committed illegality and irregularity in entertaining and deciding the suit or that for want of all the trustees as plaintiffs, the same was not maintainable. The courts below rather have decided this aspect of the matter on appreciation of the given facts and circumstances and also the law applicable in its right perspective.
Now, if coming to the plea that the suit is barred by principles of res-judicata, no doubt, Civil Suit No. 110/1 of 2005 was withdrawn by the plaintiff/trust without reserving any liberty to file a fresh suit vide order dated 29.11.2008, Ext. DW1/D. The subject matter of dispute in the said suit is however not identical because perusal of the plaint, Ext. DW1/E reveals that the same was filed for recovery of Rs. 2,91,040/- due and payable towards use and occupation charges, as on October, 2005. Secondly, the issue involved in that suit was not decided on merits because in terms of Section 11 of the Code of Civil Procedure, the principle of res judicata is attracted only in those cases where the issues in a subsequent suit were directly and substantially in issue in previous suit and the previous suit was heard and finally decided by the court on merits. Therefore, when not only Civil Suit No. 110/1 of 2005, but rent petition No. 46/2 of 2003 has also been dismissed as withdrawn vide Ext. DW1/D and Ext. DW1/B without inviting any findings on merits, there is no question of the present suit barred by the principles of res judicata. Otherwise also, in the previously instituted suit, the use and occupation charges as on 31.10.2005 were claimed to be paid by the defendant. Though, the payment of use and occupation charges is a recurring cause of action, however, even if the withdrawal of the previously instituted suit is treated as bar, the plaintiff at the most cannot claim the use and occupation charges payable as on 31.10.2005 and as the trial court has decreed the suit for payment of use and occupation charges w.e.f. 1.11.2005, therefore, on this score also, no case in favour of the appellant/defendant is made out.
If coming to the provisions contained under Order 23 Rule 1(4)(b), though the order Ext. DW1/D reveals that some application was filed for withdrawal of C.S. No. 110/1 of 2005, however, the said application was filed under Order 23 Rule 1 of the Code of Civil Procedure no evidence has been produced by the defendant. The provisions contained under Order 23 Rule 1(4)(b) of the Code of Civil Procedure are attracted only in a case of withdrawal of the suit in term of sub-Rules 2 and 3 of Order 23 of the Code of Civil Procedure. There is no iota of evidence to show that the previously instituted suit was withdrawn in terms of the provisions contained under sub-Rules 2 and 3 of Order 23 of the Code of Civil Procedure. Therefore, it cannot be said that the suit is hit by the provisions contained under Order 23 Rule 1(4)(b) of the Code of Civil Procedure nor the judgment of a coordinate bench of this Court in State of H.P. Vs. Achhru Ram (dead) through LRs., AIR 2011 HP 19 is applicable in the given facts and circumstances.
If coming to factual matrix, admittedly the demised premises is neither leased out nor rented out to the defendant/appellant by the plaintiff/trust. She is in illegal and unauthorized possession thereof, if not from some earlier date at least w.e.f. 28.3.2004, the day when her father-in-law, Sh. Bhawani Parkash Sharma expired. Even said Sh. Bhawani Parkash Sharma was also in an unauthorized possession of the demised premises on and w.e.f. 1.1.2003 because he being an employee of the plaintiff/trust was allowed to retain the demised premises on compassionate grounds upto to December, 2002 after his retirement on 31.5.2002.
The demised premises is the property of the trust. The plaintiff/trust is not a private trust, but a trust engaged in the activities for the larger public interest. The demised premises is required by the plaintiff/trust to accommodate the orphans and destitute children. The defendant, none else but an employee of Electricity Board in the rank of Senior Assistant otherwise entitled to the payment of rent from her employer is residing in the demised premises free of costs from years together. She, therefore, has no legal right to remain in possession of the demised premises.
The High Court of Delhi in CM (M) No. 449/2002, titled Padmawati and ors. v. Harijan Sewak Sangh, decided on 6.11.2008, in the similar circumstances has not only ordered to evict the occupants of the premises belonging to the respondent/Harijan Sewak Sangh, a registered society in the service of downtrodden people, but also burdened them with heavy costs, i.e. Rs. 15,10,000/-. The facts of that case were also identical to the present one, because the respondent/Sangh has allotted the premises to one H. Kameshwar, its servant, while in service for his residence. He died on 13.3.1982. The petitioners his legal heirs instead of handing over the vacant possession of the premises to the Sangh retained the same being in illegal possession thereof. In an eviction petition filed by the Sangh, their eviction from the premises in question was ordered. The petition, they preferred, was also dismissed. The Court while observing as under -
"6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Courts. One of the aim of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person."
- has not only dismissed the civil miscellaneous petition but also burdened the petitioners with costs of Rs. 15,10,000/-. The decision rendered in Padmawati''s case (supra) when assailed before the Apex Court in SLP(C) No. 29197 of 2008, titled Padmawati v. Harijan Sewak Sangh and ors. was dismissed by the apex court vide order dated 19.3.2010 with the following observations:--
"We find no ground to interfere with the well-considered judgment passed by the High Court. The special leave petition is, accordingly, dismissed."
In the case in hand, learned counsel representing the respondent/plaintiff has vigorously urged that the demised premises is required for housing orphans and destitute children. On the one hand, the appellant/defendant is in illegal and unauthorized possession thereof, as already held in this judgment, hereinabove. She even has contested the suit on false and frivolous grounds. Therefore, though this appeal should have also been dismissed with exemplary costs, but however, keeping in view the mitigating circumstances that initially the plaintiff trust has filed the eviction petition against her, thereafter, Civil Suit No. 110/1 of 2005 and also that the use and occupation charges @ Rs. 2000/- per month have been assessed and ordered to be paid to the respondent/plaintiff w.e.f. 1.11.2005 and the assessment so made has not been questioned by the respondent/plaintiff any further in an appeal to impose costs of Rs. 50,000/- upon her would serve the ends of justice.
In view of what has been said hereinabove, this appeal, being devoid of any merit, is dismissed together with Rs. 50,000/- as costs. Pending application(s), if any, also stand dismissed.