The issue, therefore, would remain as to
whether a suit for eviction against some of the legal
representatives of the deceased tenant would be tenable.
The record in the present case would show that the
plaintiff had issued notice to the defendants No. 1 and
2 directing them to pay the rent. The same was replied
by the defendants No. 1 and 2 without specifying that
they alone are not occupying the suit premises but their
sisters, being the legal representatives of deceased
tenant, would be liable to pay the rent. The plea is
taken in the written statements that the deceased also
left behind “2 daughters”.
CORAM : M.T. JOSHI, J.
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whether a suit for eviction against some of the legal
representatives of the deceased tenant would be tenable.
The record in the present case would show that the
plaintiff had issued notice to the defendants No. 1 and
2 directing them to pay the rent. The same was replied
by the defendants No. 1 and 2 without specifying that
they alone are not occupying the suit premises but their
sisters, being the legal representatives of deceased
tenant, would be liable to pay the rent. The plea is
taken in the written statements that the deceased also
left behind “2 daughters”.
In some of the cases, the exparte decree in
favour of the tenant was passed as the legal
representatives of the deceased tenant, who were joined
as defendants to the exclusion of others remained
absent.
. In the case of “Surayya Begum (Mst) V. Mohd.
Usman and others” (cited supra), relied on by Mr. Shah,
the law on the subject has been thoroughly discussed.
The ratio would show that as to whether failure to
implead one or the other heir/s of deceased tenant as a
party, would render the eviction decree not executable,
depends upon the facts and circumstances of a particular
case. It was held that if the interest of the person
not impleaded bonafide represented by the coheir,
objection to the execution of the decree would be
unsustainable. However, in case of collusive or malafide
exclusion of heir from impleadment, such objection wouldbe sustainable. Reliance was placed by Their Lordships
on the ExplanationVI of Section 11 of the Code of Civil
Procedure.
18. In a way, if it would an effective class
representation, then as per the ExplanationVI to
favour of the tenant was passed as the legal
representatives of the deceased tenant, who were joined
as defendants to the exclusion of others remained
absent.
. In the case of “Surayya Begum (Mst) V. Mohd.
Usman and others” (cited supra), relied on by Mr. Shah,
the law on the subject has been thoroughly discussed.
The ratio would show that as to whether failure to
implead one or the other heir/s of deceased tenant as a
party, would render the eviction decree not executable,
depends upon the facts and circumstances of a particular
case. It was held that if the interest of the person
not impleaded bonafide represented by the coheir,
objection to the execution of the decree would be
unsustainable. However, in case of collusive or malafide
exclusion of heir from impleadment, such objection wouldbe sustainable. Reliance was placed by Their Lordships
on the ExplanationVI of Section 11 of the Code of Civil
Procedure.
18. In a way, if it would an effective class
representation, then as per the ExplanationVI to
section 11 of the Code of Civil Procedure, the issues
decided in the lis would be res judicata as against thelegal heirs not impleaded in the suit. If all these
aspects are considered, then the fact that the
defendants No. 1 and 2 in the present case did not, in
their communication earlier to the litigation,
communicate the fact of having other legal
representatives to the deceased and thereafter raising
of the said issue by amendment of the written statement
lateron in the trial court would show that if at all any
grievance of the sisters of the defendants No. 1 and 2
would be there, the plaintiff would very well be
entitled to show that they were litigating bonafide
against present defendants No. 1 and 2. At least, the
issue is not required to be decided in the present lis.
decided in the lis would be res judicata as against thelegal heirs not impleaded in the suit. If all these
aspects are considered, then the fact that the
defendants No. 1 and 2 in the present case did not, in
their communication earlier to the litigation,
communicate the fact of having other legal
representatives to the deceased and thereafter raising
of the said issue by amendment of the written statement
lateron in the trial court would show that if at all any
grievance of the sisters of the defendants No. 1 and 2
would be there, the plaintiff would very well be
entitled to show that they were litigating bonafide
against present defendants No. 1 and 2. At least, the
issue is not required to be decided in the present lis.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 112 OF 2012
Rameshchandra Daulal Soni,
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 112 OF 2012
Rameshchandra Daulal Soni,
V
Devichand Hiralal Gandhi,
Devichand Hiralal Gandhi,
CORAM : M.T. JOSHI, J.
DATED : 20th JULY, 2015
Citation:2016(6) ALLMR 63
Citation:2016(6) ALLMR 63
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