Law Web: Whether it is mandatory to implead karta of HUF in eviction suit filed by co-owner of tenanted property?

This, however, does not imply that for want of impleadment of

Karta, in the peculiar facts of the case, the suit is liable to be

dismissed. Indisputably, respondent Nos. 2 to 4 have been impleaded

as the plaintiffs to the suit in the capacity of the legal representatives

of the deceased plaintiff No.2. The learned counsel for the respondent

Nos.2 to 4 was justified in advancing a submission that a decree for

eviction was also sought on the ground of personal bonafide

requirement of the deceased plaintiff No.2 and his daughter Anjalirespondent

No.4 herein. Thus, the respondent No.4, in the capacity of

being a co-owner, is entitled to prosecute the suit irrespective of the

Karta being brought on record.

23. The aforesaid submission is required to be considered in the

backdrop of the proposition that a co-owner is entitled to institute a

suit for eviction for and on behalf of all the co-owners, unless it is

shown that the other co-owners were not agreeable to the ejectment

to the tenant. It is one thing to say that a member of the family

other than, or in the absence of, a Karta, may be permitted to

prosecute the suit on account of special circumstances of a given case.

And a completely different thing to claim that despite a Karta having

been appointed, he will not be impleaded to represent the HUF sans

the existence of special circumstances. In the latter case, the tenability

of the suit, without impleading the Karta, would be in issue.

24. Reverting to the facts of the case, as the respondent Nos.2 to 4

are already prosecuting the suit, either in the capacity of the coowner

or as the legal representatives of deceased plaintiff No.2 and,

at the same time, there is a cloud of doubt over the intendment of

the HUF to prosecute the suit for eviction of the tenant, especially on

account of the fact that there being material to show that a Karta has

indeed been appointed and there is an alleged non-compliance of an

order of Appellate Bench in Appeal No.306 of 2009 to bring the Karta

on record, steps will have been taken to implead the successor Karta

in the instant suit. It would be in the fitness of things to frame and

try the issue regarding the tenability of the suit, in the event of nonimpleadment

of the successor Karta. To this extent, the observations

of the Appellate Bench to the effect that the non-impleadment of the

successor Karta has no bearing whatsoever on the tenability of the

suit are unsustainable.

25. The question as to whether the HUF as such intends to

prosecute the suit for eviction is essentially for the HUF to answer. It

would be onerous for the defendants to plead and prove that the HUF

does not want to prosecute the suit. Therefore, it would be

appropriate to provide an opportunity to the HUF to make its stand

clear, if it desires to.

26. In the aforesaid peculiar circumstances, in my view, it would be

appropriate to provide an opportunity to the HUF to bring the

successor Karta on record, within a stipulated period, and, in the

event of default, frame and try the issue of tenability of the suit for

eviction at the instance of HUF, as such, without bringing Karta on

record, and plaintiff Nos. 2 to 4, in the capacity of the co-owners of

the demised premises.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE CIVIL JURISDICTION

WRIT PETITION NO. 9267 OF 2019

REVISION APPLICATION NO. 343 OF 2018

EXHIBIT NO. 28

R.A.E. SUIT NO. 119/171 OF 2011

Mrs. Madhuri Doulatram Choitram Vs Lachmandas Tulsiram Nayar (HUF) by and through its Karta

CORAM : N.J. JAMADAR, J.

Pronounced on : 18th December 2019

1. This petition under article 227 of the Constitution of India

assails the legality, propriety and correctness of the judgment and

order dated 12th April 2019 in Revision Application No. 343 of 2018

passed by the Appellate Bench of the Court of Small Causes, Bombay,

whereby the revision application preferred by the petitioner against an

order passed by the learned Judge, Court of Small Causes, Bombay on

an application for dismissal of the suit (Exh.28) in RAE Suit No.

119/171/2011 dated 2nd April 2018, came to be dismissed.

2. The background facts leading to this petition can be stated in

brief, as under :-

(a) The respondent No.1-Lachmandas Tulsiram Nayar (HUF)

had instituted a suit, being RAE Suit No. 660/1127/2002,

against the predecessor-in-title of the petitioner and

respondent No.5 for recovery of the possession of the

demised premises on the ground of personal bonafide

requirement and non-user. The said suit came to be

dismissed by a judgment and order dated 27th February

2009.

(b) Thereafter, respondent No.1 again instituted a suit,

being RAE Suit No. 119/171/2011, against the petitioner and

respondent No.5 on the ground of personal bonafide

requirement and alleged sub-letting. The suit was instituted

by the HUF through its Karta and Manager Mr.Brijbihari

Tulsiram Nayar. Mr. Jagdishmohan Tulsiram Nayar was also

arrayed as the plaintiff, with an assertion that the latter was

assisting the Karta and Manager in managing the affairs of

the said HUF.

on 23rd February 2014. The respondent Nos. 2 to 4 herein,

claiming to be the legal representatives of the deceased

plaintiff No.2, sought their impleadment. The learned Judge,

by an order dated 16th September 2016, was persuaded to

allow the application and implead the respondent Nos. 2 to

4 as the legal representatives of the deceased plaintiff No.2.

The petitioner challenged the said order in Writ Petition No.

557 of 2017.

(d) In the meanwhile, Mr.Brijmohan Lachmandas Nayar,

the Karta and Manager of HUF also died on 1st July 2015.

Since the successor Karta and Manager of Lachmandas

Tulsiram Nayar (HUF) was not impleaded in the suit, the

petitioner-defendant filed an application for dismissal of the

suit as abated, and, in the alternative, qua the plaintiff No.1

HUF, as there was no Karta to represent the said HUF. The

respondent Nos.2 to 4, in the capacity of the legal

representatives of the deceased plaintiff No.2, resisted the

application.

(e) By an order dated 2nd April 2018, the learned Judge

was persuaded to reject the application holding, inter-alia,

that the legal representatives of the deceased plaintiff No.2

were already brought on record and, thus, the suit would

not abate on account of the death of Karta and Manager of

HUF despite the successor Karta of the HUF not being

brought on record.

3. The petitioner carried the matter in revision before the Appellate

Bench. By the impugned judgment and order, the Appellate Bench was

persuaded to reject the application. The observations in paragraph 7

of the impugned judgment spell out the reasons which weighed with

the Appellate Bench to repel the contention of the petitioner. As a

severe criticism was advanced against those observations, it would be

advantageous to extract paragraph No.7 of the impugned judgment. It

reads as under :-

“7 It is pertinent to note here that the plaintiffs

have already brought the legal heirs and

representatives of the plaintiff No.2 namely Jagdish

Mohan Lachmandas Nayar on record by virtue of the

order below the application exh.19 Dt. 16.09.2016.

However, we do not find any mandatory or

compulsory provisions which compel the plaintiffs to

appoint or bring the Karta of the Hindu Undivided

Family (HUF) on record but the other plaintiffs have

rightly represented and protect the rights of the

concern parties including the suit premises for

themselves and others. Moreover, the order passed

by the Appellate Court below the application Exh.33

in Appeal No. 306 of 2009 dt. 27.01.2016 is

permissive in nature and not the directive by which

there is no reason to say that the plaintiffs have not

followed the order passed by the Appellate Court

below the application Exh.33 in Appeal No.306 of

2009 Dt.27.01.2016. Per contra, it is the sweet

choice or option of the plaintiffs being the members

of the HUF that they may or may not elect or select

or appoint the new Karta in place of the deceased

Karta or continue their family without any Karta.”

(Underline supplied)

4. Shri Yashpal Jain, the learned counsel for the petitioner urged

that the view of the Appellate Bench that there is no mandatory or

compulsory provision which would compel the plaintiffs to appoint

and bring the Karta of Hindu Undivided Family (HUF) on record and

that the plaintiff Nos.2(A) to 2(C) can represent the HUF, is plainly

erroneous. The further observations of the Appellate Bench that it is

the sweet choice or option of the plaintiffs, being the members of

HUF, to appoint the new Karta in place of the deceased Karta or

continue their family without any Karta, is also manifestly in

dissonance with the settled legal position which governs the

representation of a HUF in the proceedings instituted by or on behalf

of HUF and the express provisions contained in Order XXX Rule 10 of

the Code of Civil Procedure, 1908 (‘the Code’). The Appellate Bench,

according to the learned counsel for the petitioner, totally

misconstrued the nature of the HUF and dismissed the application

without adverting to the questions which arose for determination in

the backdrop of the governing statutory provisions and binding

precedents. Thus, the impugned judgment and order, being wholly

untenable, deserves to be quashed and set aside, and in the absence

of the successor Karta being brought on record, the suit itself is liable

to be dismissed, urged Shri Jain.

5. In opposition to this, Shri Mayur Khandeparkar, the learned

counsel for the respondent Nos.2 to 4 would urge that neither the

impugned order nor the order passed by the learned Judge on 12th

April 2019 dismissing the application for dismissal of the suit filed by

the petitioner warrant any interference. Indisputably, the respondent

Nos.2 to 4 have already been brought on record pursuant to the order

passed on the application (Exh.19) by the learned Judge on 16th

September 2016. The fact that the said order is assailed in Writ

Petition No.557 of 2017 before this Court does not impinge upon the

right of the respondent Nos.2 to 4 to prosecute the suit. As the

respondent Nos.2 to 4 are, incontestably, the co-owners of the

demised premises, the continuation of the suit by respondent Nos. 2

to 4 for eviction of the tenants cannot be questioned. The nonimpleadment

of successor Karta, for any reason, thus, does not impair

the tenability of the suit, urged Shri Khandeparkar.

6. To begin with, it is necessary to note the nature of the

proceeding, which has a determinative bearing on the right to sue.

Undoubtedly, the suit has been instituted for eviction of the tenants

from the demised premises on the statutory grounds provided in

section 16 of the Maharashtra Rent Control Act, 1999 (‘The Act’). It is

well neigh settled that one co-owner, in the absence of any objection

from the other co-owners, can maintain an action for eviction against

a tenant, without impleading all the co-owners. The governing

principle is the doctrine of agency. When one co-owner institutes a

suit for eviction against the tenant, it is construed as the suit having

been instituted in his own right and also as an agent of the other coowners.

What is of importance is the jural-relationship of the landlord

and tenant. Once a co-owner satisfies the description of the landlord,

the fact that the other co-owners have not joined in action pales in

significance and does not affect the maintainability of the suit. Of

course, different considerations come into play when existence of a

dispute between the co-owners as regards the institution of the very

action of eviction, is brought to the notice of the Court.

7. A profitable reference in this context can be made to a decision

of the Supreme Court in the case of Mohinder Prasad Jain Vs.

Manohar Lal Jain 2006(2) SCC 724, wherein the Supreme Court expounded the legal

position in the following words :

“10 This question now stands concluded by a

decision of this Court in India Umbrella

Manufacturing Co. & Ors. vs. Bhagabandei

Agarwalla (Dead) by Lrs. Savitri Agarwalla

(Smt.) & Ors. [(2004) 3 SCC 178] wherein this

Court opined:

"6 Having heard the learned

counsel for the parties we are satisfied

that the appeals are liable to be

dismissed. It is well settled that one of

the co-owners can file a suit for

eviction of a tenant in the property

generally owned by the co-owners.

(See Sri Ram Pasricha v. Jagannath

[(1976) 4 SCC 184] and Dhannalal v.

Kalawatibai [(2002) 6 SCC 16], SCC

para 25.) This principle is based on

the doctrine of agency. One co-owner

filing a suit for eviction against the

tenant does so on his own behalf in

his own right and as an agent of the

other co-owners. The consent of other

co- owners is assumed as taken unless

it is shown that the other co-owners

were not agreeable to eject the tenant

and the suit was filed in spite of their

disagreement. In the present case, the

suit was filed by both the co-owners.

One of the co-owners cannot withdraw

his consent midway the suit so as to

prejudice the other co-owner. The suit

once filed, the rights of the parties

stand crystallised on the date of the

suit and the entitlement of the coowners

to seek ejectment must be

adjudged by reference to the date of

institution of the suit; the only

exception being when by virtue of a

subsequent event the entitlement of

the body of co-owners to eject the

tenant comes to an end by act of

parties or by operation of law."

11 A suit filed by a co-owner, thus, is

maintainable in law. It is not necessary for the

co- owner to show before initiating the

eviction proceeding before the Rent Controller

that he had taken option or consent of the

other co-owners. However, in the event, a coowner

objects thereto, the same may be a

relevant fact. In the instant case, nothing has

been brought on record to show that the coowners

of the respondent had objected to

eviction proceedings initiated by the

respondent herein. …………………..”

8. This aspect was again considered by the Supreme Court in the

case of Boorugu Mahadev and Sons & Anr. Vs. Sirigiri Narasing Rao 2016(3) SCC 343,

in the context of the proceedings between a landlord and tenant,

governed by the rent control legislation. The Supreme Court

enunciated that the concept of ownership and consequently the right

to sue, in such cases, has to be distinguished from the one in a title

suit. The observations in paragraph No.18 of the said judgment are

instructive and thus extracted below :

“18 It is also now a settled principle of law that

the concept of ownership in a landlord-tenant

litigation governed by Rent control laws has to be

distinguished from the one in a title suit. Indeed,

ownership is a relative term, the import whereof

depends on the context in which it is used. In rent

control legislation, the landlord can be said to be the

owner if he is entitled in his own legal right, as

distinguished from for and on behalf of someone else

to evict the tenant and then to retain control, hold

and use the premises for himself. What may suffice

and hold good as proof of ownership in landlordtenant

litigation probably may or may not be enough

to successfully sustain a claim for ownership in a

title suit. (vide Sheela & Ors. vs. Firm Prahlad Rai

Prem Prakash, (2002) 3 SCC 375).”

(emphasis supplied)

9. The learned counsel for the petitioner, without disputing the

generality of aforesaid proposition, endevoured to canvass a

submission that general proposition as regards the entitlement of a coowner

to sue, to evict a tenant, cannot have application to a suit

instituted by and on behalf of HUF, with equal force. A Hindu

Undivided Family (HUF) by its very character and legal connotation,

stands on a different footing. The representation of a HUF by the

Karta is the rule. Indisputably, in an appropriate case, even a person

who is not the senior-most member may act as Karta but a case for

such a representation is required to be made out, on facts.

10. The learned counsel for the petitioner, to bolster up the

aforesaid submissions, placed a strong reliance upon the judgment of

the Supreme Court in the case of Tribhovandas Haribhai Tamboli Vs.

Gujarat Revenue Tribunal & Others (1991) 3 SCC 442, wherein the Supreme Court had

explained the position of the Karta of Hindu Undivided Family in the

matter of management of the joint family property. The observations

of the Supreme Court, in paragraph 13, on which a strong reliance

was placed by the learned counsel for the petitioner, read as under :

“13 Regarding the management of the Joint

Family Property or business or other interests in a

Hindu Joint Family, the Karta of the Hindu Joint

Family is a prima inter pares. The managership of

the Joint Family Property goes to a person by birth

and is regulated by seniority and the Karta or the

Manager occupies a position superior to that of the

other members. A junior member cannot, therefore,

deal with the joint family property as Manager so

long as the Karta is available except where the

Karta relinquishes his right expressly or by

necessary impl i cation or in the absence of the

Manager in exceptional and extra-ordinary

circumstances such as distress or calamity effecting

the whole family and for supporting the family or

in the absence of the father whose whereabouts

were not known or who was away in remote place

due to compelling circumstances and that is return

within the reasonable time was unlikely or not

anticipated. No such circumstances are available

here to attract the facts of the case.”

(emphasis supplied)

11. The learned counsel for the petitioner has placed reliance on a

Division Bench judgment of Nagpur High Court in the case of Shop of

Bhai Ganeshram Balbhadra and Anr. Vs. Firm Mangilal Balkisan and

Ors. AIR 1952 Nag. 390, wherein the requirement of institution of the suit by or on

behalf of the members of the family, was examined. The observations

of the Court in paragraphs 15 and 16 postulate legal position. They

read as under :

“15 A suit by or against a joint Hindu

Mitakshara family may be conducted or defended as

the case may be by the karta alone in a

representative capacity or by all the members of the

family being impleaded if the karta alone is on the

record, in the event of his death substitution has got

to be made within the time limited by law either of

the succeeding karta in his representative capacity, as

was done in ‘Atma Ram Vs. Banku Mal’ 11 Lah. 598,

or of all the surviving members of the family. But in

each case the application has to be one for

substitution, which has got to be made within 90

days of the date of death. Otherwise, the suit or the

appeal as the case may be will abate. In this case,

the appeal abated as soon as 90 days elapsed from

the 23rd June 1950 and no application for substitution

had been made. That appears to have been the view

of the learned single Judge who referred this case,

and we entirely agree with that view.

16 It is not a case where all the members of

the joint family had been impleaded and the karta

died. In such a case, if all the members of the joint

family at the time of the death of the deceased karta

are already on record, the case would be governed

by Rule 2 of Order 22. Only an entry to that effect

will have to be made in the record, and the suit or

the appeal as the case may be, would proceed

without anything further being necessary to be done.

There is ample authority for the proposition that

even if the karta is on the record but not as such,

that is to say, he has been impleaded in the

litigation along with the other members of the joint

family and if one of the members died leaving him

surviving not only the members who are already on

record but some other members who may have come

into existence during the pendency of the litigation,

it is necessary under the law to make substitution in

place of the deceased party, and it will not do

simply to say that the karta is already on the record

: see in this connextion the Bench decisions of the

Patna High Court in ‘Lilo Sonar Vs. Jhagru Sahu’, 3

Pat. 853 and ‘Basist Naraya Singh V. Modnath Das’,

7 Pat. 285 and the case therein mentioned.”

12. Per contra, Shri Mayur Khandeparkar stoutly submitted that it is

not an immutable rule of law that the Karta must represent the HUF

in a suit for eviction instituted against the tenant. A co-owner is

equally competent to prosecute the suit for the purpose of regaining

possession of the demised premises. The aforesaid judgment of the

Supreme Court in the case of Tribhovandas Haribhai Tamboli (Supra)

has been construed and explained by the Supreme Court in the

judgment in the case of Nopany Investments (P) Ltd. Vs. Santokh

Singh (HUF) 5, urged Shri Khandeparkar.

13. In the case of Nopany Investments (P) Ltd. (Supra), one Jasraj

Singh had instituted proceeding for eviction before the Additional Rent

Controller claiming himself to be the Karta of Dr. Santokh Singh

(HUF), when an elder member of the said HUF was alive. A challenge

to the tenability of the proceeding at the instance of Jasraj Singh was

mounted on behalf of the tenant. The Supreme Court, inter-alia,

framed the following question :

“(i) Whether Jasraj Singh could file the suit

for eviction, in the capacity of the Karta of Dr.

Santokh Singh HUF, when, admittedly, an elder

member of the aforesaid HUF was alive ?”

14. The Supreme Court, after adverting to the pronouncement in the

cases of Sushil Kumar (Sunil Kumar) and another Vs. Ram Prakash

and others6 and Tribhovandas Haribhai Tamboli (Supra), on which

reliance was placed on behalf of the tenant in support of the

objection, enunciated that the decision in the case of Sunil Kumar and

another (Supra), does not hold that when the elder member of a joint

Hindu family is alive, the younger member would not at all be

5 (2008) 2 SCC 728

6 (1988) 2 SCC 77

entitled to act as a manager or Karta of the joint family.

15. The Supreme Court explained the import of the judgment in the

case of Tribhovandas Haribhai Tamboli (Supra) in the following

words:-

“9 From a careful reading of the observation of this

court in Tribhovandas's case [supra], it would be evident

that a younger member of the joint hindu family can deal

with the joint family property as manager in the

following circumstances :- (SCC P. 450, para 13)

(i) if the senior member or the Karta is

not available;

(ii) where the Karta relinquishes his right

expressly or by necessary implication;

(iii) in the absence of the manager in

exceptional and extra ordinary circumstances

such as distress or calamity affecting the

whole family and for supporting the family;

(iv) in the absence of the father :-

(a) whose whereabouts were not

known or

(b) who was away in a remote

place due to compelling

circumstances and his return within

a reasonable time was unlikely or

not anticipated. Therefore, in

Tribhovandas's case [supra], it has

been made clear that under the

aforesaid circumstances, a junior

member of the joint hindu family

can deal with the joint family

property as manager or act as the

Karta of the same.”

16. The aforesaid exposition of law makes it abundantly clear that

there is no restraint in law on a younger member of the joint family

dealing with joint family property as a Manager or Karta thereof in

certain circumstances, which necessitate the discharge of such duties

by a younger member.

17. The learned counsel for the petitioner urged that the learned

Judge as well as the Appellate Bench completely lost sight of the

provision contained in Order XXX Rule 10 of the Code. The

propositions of Hindu Law, as regards the representation to be made

by Karta, according to the learned counsel for the petitioner is

required to be applied in the context of the provisions contained in

Order XXX Rule 10. The observations of the Appellate Bench that

there was no obligation at all to bring the successor Karta on record

is, according to the learned counsel for the petitioner, in the teeth of

the provisions contained in Order XXX Rule 10, which reads as

under :-

“ORDER XXX- SUITS BY OR AGAINST

FIRMS AND PERSONS CARRYING ON

BUSINESS IN NAMES OTHER THAN

THEIR OWN :

10. Suit against person carrying on

business in name other than his own—

Any person carrying on business in a

name or style other than his own name,

or a Hindu undivided family carrying on

business under any name, may be sued in

such name or style as if it were a firm

name, and, in so far as the nature of

such case permits, all rules under this

Order shall apply accordingly.”

18. To butress the submission of applicability of the aforesaid

provision in the matter of institution and continuation of a suit by a

Hindu Undivided Family, the learned counsel for the petitioner, placed

a very heavy reliance upon a judgment of this Court in the case of

Nergish Minoo Pavri & Anr. Vs. Pramod Kishanchand Gupta (2010) 1 Mah. L J 264. In the

said case, the suit was instituted by the petitioner for declaration of

tenancy against the predecessor-in-title of the respondents,

Kishanchand P. Gupta, Karta/Manager of Hindu Undivided Family of

Kishanchand P. Gupta. The suit was decreed. On the date, the appeal

was preferred by the HUF, said Kishanchand P. Gupta was not alive.

Pramod Gupta, the son of Kishanchand P. Gupta took out a notice of

motion seeking deletion of Kishanchand P.Gupta and permission to

represent Kishanchand P. Gupta. The said notice of motion was

allowed by the Appellate Bench. This Court held that the Court below has, without understanding the basic difference between a “firm” and

a “HUF”, allowed the application filed by the respondent. A HUF

needs to be represented by Karta/Manager. In case of a HUF, if karta

dies during pendency of a suit/appeal, the successor karta will have to

come forward and apply for bringing him on record. In the process,

this Court construed the import of the provisions contained in Rule 10

as under :

“8. Rule 10 of Order 30 provides that any

person carrying on business in a name or style

other than his own name or Hindu undivided

family carrying on business under any name, may

be sued in such name or style as if it were a firm

name, and, insofar as the nature of such case

permits, all rules under Order 30 shall apply

accordingly. From bare perusal of this provision, it

is clear that when a HUF is "to be sued", it may

be sued in the name in which it carries business.

In the present case the suit was filed against the

HUF showing Kishanchand Gupta as its

karta/manager and not in other name. In other

words, the provision of rule 4(2) will apply only

where a Hindu undivided family is carrying on

business under any name, and is to be sued it

could be sued in the name or style in which it

carries its business. It needs to be noted that a

HUF cannot appear as a HUF, and the

manager/karta should, therefore, appear in his own

name, though all subsequent proceedings could be

continued in the name of HUF. A HUF need to be

represented by its karta/manager in a suit/appeal

and in the event of his death a successor

karta/manager will have to represent the HUF and

continue the proceedings. But, after disposal of a

suit and at the time of filing an appeal if karta,

who was representing the HUF in the suit dies, the

successor karta will have to file the appeal. The

appeal, in such eventuality cannot be filed in the

name of HUF, showing the deceased karta/manager

as its karta/manager. Such appeal would be a

nullity.”

(emphasis supplied)

19. According to the learned counsel for the petitioner, in the case

at hand, the situation is further accentuated by the fact there is

material on record to indicate that the HUF has indeed appointed a

Karta and yet the said Karta is not brought on record to prosecute the

suit. To lend support to this submission, the learned counsel for the

petitioner drew attention of the Court to the affidavit in reply filed by

the respondent Nos. 2 to 4 before the trial court, wherein it was

asserted that a new Karta though appointed, being a senior citizen

and residing at Dehradun, it was not possible for him to give

instructions. Attention was also invited to a notice dated 17th June

2019 purported to have been issued by the Karta/Authorized Signatory

of HUF to all the tenants of the HUF.

20. The aforesaid submissions are required to be appreciated in two

perspectives. One, the necessity of impleadment of a successor Karta.

Two, the right of the respondent Nos.2 to 4 to prosecute the suit for

eviction in the capacity of the co-owners. As regards the substitution

of the successor Karta to represent the HUF, it is pertinent to note

that the Appellate Bench, in Appeal No. 306 of 2009 arising out of

R.A.E. Suit No.660/1127/2002, which was initially instituted by the

HUF, had passed an order permitting the appellants therein to take

necessary steps for bringing the new Karta on record on or before 5th

February 2016, by an order dated 27th January 2016. It is the

grievance of the petitioner that despite the said order, the successor

Karta has not been impleaded and this fact was also downplayed by

the Appellate Bench, in the case at hand, as being one of permissive

nature.

21. The material on record thus indicates that it is the case of the

plaintiff in the instant suit and the appellants in the said Appeal No.

306 of 2009 arising out of a previous suit instituted by the HUF, that

a new karta has indeed been appointed. If the successor Karta has

been appointed, the provisions of Order XXX Rule 10 will have full

application. It is not a positive case that the Karta has not been

appointed. The pronouncement of this court in the case of Nergish

Minoo Pavri & Anr. (Supra) will, therefore, govern the representation

of the HUF in the suit.

22. This, however, does not imply that for want of impleadment of