Laxmibai Sopanrao Kathawate vs Hariram Tikamchand Dangi and Another

D.K. Deshmukh, J.—By this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 1st August. 1995 passed by the 5th Additional District Judge. Pune in Civil Appeal No. 671 of 1983. That appeal was filed by the petitioner challenging the order dated 7th March. 1983 passed by the IInd Additional Judge, Small Causes Court. Pune in Civil Appeal No. 501 of 1978. That civil suit was filed by the petitioner claiming therein that she is the owner of the suit house consisting of two rooms of which respondent No. 1 Hariram is a tenant. She alleged that respondent No. 1 has unlawfully sublet the suit premises to respondent No. 2 Subhashchandra. Trial Court, on the basis of the evidence on record, has held that subletting of the suit premises unlawfully has been proved. However, the Trial Court held that Hariram was not the only tenant of the suit premises and that his brother Tulshiram was the joint tenant of the suit premises and because he was not joined as defendant in the suit, the suit was dismissed for non-joinder of necessary parties. In the appeal filed by the landlords the Appellate Court confirmed that finding and dismissed the appeal.

The learned Counsel appearing for the petitioner urged before me that both the Courts have concurrently found that the suit premises were unlawfully sublet to respondent No.2 after 1st February, 1973. He urged that it was the case of respondent No. 1 himself that the findings recorded in the earlier suit that he was the joint tenant of the suit premises along with Tulshiram operates as res judicata. The learned Counsel submits that accepting that binding as binding between the parties, it was not necessary to joint Tulshiram as defendant and for this proposition he relied upon the observations of the Supreme Court in its judgment in Kanji Manji Vs. The Trustees of The Port of Bombay, .

Now the perusal of the judgments of both the Courts below shows that it is established fact between the parties that respondent No. 1 and his brother Tulshiram are joint tenants of the suit house. The only question that is raised for consideration is if admittedly one of the joint tenant is joined is defendant to the suit, could the other joint tenant, viz., Tulshiram is a necessary party. Perusal of the judgment of the Supreme Court in the above referred case shows that if the tenancy is joint then joining of one of the joint tenants is party to the suit is enough, ft is not necessary to join all the joint tenants as parties. In my opinion, in the face of the law laid down by the Supreme Court, orders of both the Court:, below are vitiated and, therefore, liable to be quashed and set aside.

In the result, therefore, the present petition succeeds and is allowed. Orders of both the Courts below impugned in the petition are quashed and set aside. Civil Suit No. 501 of 1978 is decreed in favour of the petitioner. Defendants Nos. 1 and 2 are directed to vacate the suit premises. Rule made absolute accordingly with no order as to costs.

At this stage the learned Counsel for the respondents, requests that the respondents should be given reasonable time to vacate the suit premises. In his Submission, six months would be reasonable time. The request is not opposed by the learned Counsel for the petitioner. In this view of the matter, it is directed that the decree of eviction passed against the respondents shall not be executed for a period of six months from today subject to the condition that the respondents submit an undertaking to this Court in usual from within a period of two weeks from today. Failure to submit the undertaking within the aforesaid period shall, however, entitles the petitioner-landlord to execute the decree immediately.

Issuance of certified copy expedited.