Bhaskar Bhattacharya, J.@mdashThis first appeal is at the instance of a landlord in a suit for eviction on the ground of reasonable requirement and is directed against the judgment and decree dated 19th August, 1999 passed by the learned Judge, 4th Bench, City Civil Court at Calcutta in Ejectment Suit No. 219 of 1991 thereby dismissing the suit on the ground of absence of valid notice of ejectment upon all the tenants.
The learned Trial Judge, however, found that the plaintiff otherwise proved reasonable requirement.
2. Being dissatisfied, the plaintiff has come up with the present first appeal.
3. It appears from the record that the plaintiff, a subsequent purchaser from the previous landlord, filed the suit for eviction on the ground of reasonable requirement against one Salil Kumar Dasgupta by describing him as the sole tenant in respect of the tenanted property. There is no dispute that when the plaintiff purchased the property from the previous landlord, a suit for eviction against the said Salil Kumar Dasgupta was pending but such suit was withdrawn as the transferee landlord was not entitled to get the benefit of Section 13(ff) of the West Bengal Premises Tenancy Act within three years from the date of purchase.
4. Subsequently, by giving a fresh notice to quit, the plaintiff-appellant filed the suit for eviction against the said Salil Kumar Dasgupta on the ground of reasonable requirement out of which the present appeal arises.
5. Salil Kumar Dasgupta, the sole defendant, after entering appearance in the suit filed an application u/s 17(2) of the West Bengal Premises Tenancy Act but did not dispute the relationship of landlord and tenant between the parties as alleged in the plaint; subsequently, however, in the written statement, he took specific plea that he was not the sole tenant as his father was the original tenant and on the death of his father, he along with two other brothers inherited the property.
6. Afterwards, the heirs of one of such brothers came up with an application under Order 1 Rule 10 of the CPC for being added as the defendants alleging that they were co-tenants in respect of the property and as such, in their absence the suit was not maintainable.
7. The learned Trial Judge allowed such application and added the heirs of one of the other brothers of the original defendant.
8. The plea taken by the added defendants was that one Sashanka Sekhar Dasgupta was the original tenant in respect of the property and on his death in the year 1974, his three sons, namely, Sushil Kumar Dasgupta, Sunil Kumar Dnsgupta and Salil Kumar Dasgupta became the tenants in respect of the property and thus the suit filed by impleading Salil Kumar Dasgupta alone was not maintainable.
9. At the time of hearing of the suit, the added defendants produced rent receipts granted by the predecessor-in-interest of the plaintiff-appellant in favour of Sashanka Sekhar Dasgupta in support of their claim and asserted their actual possession over the suit property.
10. It may not be out of place to mention here that even after the heirs of one of the other brothers were added as parties, the plaintiff-landlord stuck to the original case made out in the plaint that Salil Kumar Dasgupta was the sole tenant and did not care to add the other left out brother of Salil.
11. As indicated earlier, the learned Trial Judge, by relying upon the rent receipts in favour of Sashanka Sekhar Dasgupta, arrived at the conclusion that the tenancy continued after the death of Sashanka and thus, his three sons became the tenants in respect of the property and, therefore, notice of eviction given by the plaintiff by describing Salil .as the sole tenant was illegal and as such, the suit filed on the basis of such a notice was not maintainable.
12. Mr. Chakraborty, the learned Advocate appearing on behalf of the appellant has emphatically contended before us that there was surrender of tenancy after the death of Sashanka Sekhar Dasgupta by two of his sons and for that reason, in the earlier suit filed by his client''s predecessor, Salil Kumar Dasgupta was made the sole defendant. Mr. Chakraborty contends that Salil did not allege in the earlier suit that his other brothers were also co-tenants with him and therefore, the plea now advanced by Salil or his successors or the heirs of his brother should be disbelieved.
13. Chakraborty submits that his client was not aware of the fact that Sashanka Sekhar Dasgupta was a tenant at any point of time and, therefore, his client could not make out a case of surrender in the plaint. Mr. Chakraborty further contends that even if it is assumed for the sake of argument that Sashanka Sekhar Dasgupta was really a tenant, on his death, as his other heirs than Salil had not asserted any tenancy right, there is implied surrender of tenancy at their instance and consequently, the rent receipt having been granted only in the name of Salil, it should be presumed that a new tenancy was created in his favour.
14. Mr. Chakraborty further submits that at any rate, there is no allegation of fraud or collusion between his client and Salil and, therefore, the joint tenants having been sufficiently represented by not only the heirs of Salil but also the other added defendants, they have not been prejudiced in any way. He, therefore, prays for setting aside .the judgment and decree passed by the learned Trial Judge and passing a decree for eviction on the ground of reasonable requirement, as according to him, the ground of reasonable requirement has been sufficiently proved.
15. Mr. Mitra, the learned Advocate appearing on behalf of the respondents, has, on the other hand, opposed the aforesaid submission, made by Mr. Chakraborty and has contended that once it is established that Sashanka Sekhar Dasgupta was the original tenant of the property, in the absence of any plea taken by the landlord of surrender by the other heirs, the learned Trial Judge rightly held that the earlier tenancy was continuing. Mr. Mitra further points out that his clients are also staying in the same property and no suggestion has even been given to his clients that they were not staying in the same property. Mr. Mitra, therefore, contends that there can be no surrender of tenancy merely because the rent receipt is granted in favour of one of the heirs of the original tenant. He, therefore, prays for dismissal of the suit by relying upon the decision of a Division Bench of this Court in the case of
16. Therefore, the only question that arises for determination in this appeal is whether the learned Trial Judge was justified in dismissing the suit on the ground that in the absence of notice to quit to all the heirs of Sashanka Sekhar Dasgupta, the original tenant, the suit was not maintainable.
17. We have already pointed out that when the added defendants were brought on record, the plaintiff did not amend his plaint nor did he add the third son of Sashanka but maintained that Salil was the only tenant. In the plaint, there is no allegation that prior to Salil, his father was the tenant or that other heirs of the said father had surrendered the tenancy. The moment we find that the father of Salil was the original tenant and there is no plea of surrender taken by the plaintiff, it necessarily follows that old tenancy is continuing. We have also found that the presence of DW-2, the nephew of Salil, in the suit property has not been disputed and it appears that Salil''s nephew is in actual possession of the property in addition to the heirs of Salil.
18. In the absence of any evidence given by the plaintiff or in the absence of any amendment of the plaint by taking the plea of surrender of the original tenancy, we are unable to accept the contention of Mr. Chakraborty that the original tenancy, after the death of Sashanka, was impliedly surrendered by his other heirs than Salil. The question of surrender, whether express or implied, being essentially one of fact, must be pleaded specifically in the plaint; otherwise, such plea cannot be permitted to be taken.
19. The next question is whether on the death of Sashanka Sekhar Dasgupta, the suit can be maintained by only impleading Salil, one of his sons.
20. At this stage, we cannot help mentioning the following observations of a Bench consisting of three-Judges of the Supreme Court in the case of
Let us now consider the position in law. The law has been summarised in Mulla''s Transfer of Property Act (Fifth Edition) at page 226. As early as 1896 it was held by the Judicial Committee of the Privy Council in Jogeswar Narain Deo v. Ram Chandra Dutt 1896(23) IA 37 PC) that-
The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family.
and that it was not right to import into the construction of a Hindu will an extremely technical rule of English conveyancing. Many years later the principle was reiterated in the case of
It was argued before us that there were indications in the will that the intention of the testatrix was that the foster children should take as joint tenants and that this was apparent from the Clause in the will which provided that-
the entire property should be in possession of both of them and that both of them should enjoy throughout their lifetime the said property and that after their death the children that may be born ro them should enjoy the same.
We do not think that from this one can spell out a joint tenancy which is unknown to Hindu law except as abovestated. The testatrix did not expressly mention that on the death of one all the properties would pass to the other by right of survivorship. We have no doubt on a construction of the will that the testatrix never intended the foster children to take the property as joint tenants. The foster children who became tenants in common partitioned the property in exercise of their right.
21. Even in the subsequent decision of the Supreme Court in the case of
22. It is true, that in a subsequent derision of the Apex Court in the case of
23. Thus, it is clear that only except the cese of Hindu Joint Coparcenaries governed by the Mitakshara School of Hindu law in India, the tenancy is inherited as a tenancy in common and not as a joint tenant and in case of tenancy in common, the notice must be addressed to all the tenants in common and the principles that the notice addressed to all but served upon one of them is sufficient applies to both the joint tenancy and the tenancy in common. See in this connection, the observations of the Division Bench of this Court consisting of Arun Kumar Mukherjee and M.M. Dutt, JJ., as Their Lordships then were, in
24. Mr Chakraborty, at this stage, tried to impress upon us that object of service of the notice to quit is to give one month''s time to the tenant to vacate the property and that in this case the suit being continuing for years, this Court should not dismiss the suit on the ground of invalid notice. We are afraid we are not at all impressed by such submission. As pointed out in Section 13(6) of the West Bengal Premises Tenancy Act, the service of a valid notice upon the tenants is a condition precedent for institution of the suit and in the absence of a valid notice to quit preceding the suit, the Court lacks jurisdiction to entertain the suit. The provision of giving a notice in terms of Section 13(6) of the Act being based on public policy cannot be waived.
25. We find that on the question whether on the death of a contractual tenant, a suit filed by not impleading all the heirs is maintainable or not, there are conflicting decisions of the Supreme Court and we propose to deal with those decisions.
26. A Bench consisting of three Judges in
27. In a subsequent decision of a Bench consisting of two-Judges in the case of
28. There is, however, a subsequent decision of the Bench consisting of two-Judges in the case of
...In the case of Textile Association (India),
In our view, the said decision of the Supreme Court in the case of Ashok Chintamoni Juker (supra), cannot be relied upon as a precedent in view of a contrary decision given in the case of Textile Association (supra) by a Bench consisting of three-Judges, In the case of Textile Association (India) (supra), the said Bench considered the case of H.C. Pandey v. G.C. Pal (supra), and Kanji Manji v. Trustees of the Port of Bombay (supra), and specifically held that the principles laid down in those cases relating to the service of notice did not apply when the question of making all the tenants as parties in a suit for eviction arose and held that in the absence of any of the tenants, the suit was not maintainable. Moreover, in the case of Ashok Chintamoni (supra), the said Bench relied upon the case of Ganapat Ladha (supra), by totally overlooking the fact that the case of Ganapat Ladha was expressly overruled by a Bench of five-Judges in the case of
30. In the case of Kanji Manji (supra), the Supreme Court was considering a case of eviction of an assignee from the original tenant. Two persons, by virtue of assignment from the original tenant with the consent of the landlord, became joint tenants under the landlord and subsequently, a suit for eviction was filed against those two persons. It appeared that one of them was already dead at the time of institution of the suit and as such, the landlord by filing an application for amendment of the plaint expunged the name of the deceased tenant and decided to proceed against the surviving tenant without impleading the heirs of the deceased joint tenant. In the suit, it was contended, inter alia, on behalf of the surviving tenant that in the absence of the heirs of the deceased tenant and in the absence of service of a notice u/s 106 of the Transfer of Property Act the suit was not maintainable. In such a case, the Apex Court pointed out that in the deed of assignment, the assignees were clearly described as joint tenant and as such, a suit filed on the basis of service of notice upon one of the joint tenants and in the absence of the heirs of the other was maintainable. The following finding of the Apex Court would clearly show that the said Court assumed joint tenancy on the basis of the deed of assignment and not on the ground that on the death of a contractual tenant his heirs inherit as joint tenants:
The argument about notice need not detain us long. By the deed af assignment dated February 28, 1947, the tenants took the premises as joint tenants. The exact words of the assignment were that "-the Assignors do and each of them both hereby assign and assure with the Assignees as Joint Tenants--" The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The Trial Judge, therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good. Mr. B. Sen, in arguing the case of the appellant, did not seek to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has no merit.
31. Therefore, the decision in the case of Kanji Manji (supra), did not lay down any proposition of law that on the death of the contractual tenant his heirs inherit the tenancy as a joint tenant; on the other hand, the Supreme Court in the case of
32. In the case of Surayya Begum (supra), a Bench consisting of two-Judges of the Supreme Court even after noticing the case of Textile Association (supra) was of the view that the principle of representation of interest of a person, not impleaded by name in a judicial proceedings, through a named party is not unknown. Their Lordships referred to the ceses of Karta of a joint Hindu Family, the cases governed by the provisions of Order 1 Rule 8 of the CPC and the Explanation VI of Section 11 of the Code and observed that the examples could be multiplied. Their Lordships, however, made it clear that such principles would be subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, Their Lordships continued, his interest should be looked after in bona fide matter.
33. In our opinion, the aforesaid view expressed by the said Bench is in direct contradiction to the decision of Textile Association (supra), where the plea of representation put forward by the learned Counsel appearing for the landlord was turned down as would appear from the following observations made in paragraph 4 of the judgement:
Mr. Lalit, Counsel for the appellants argued that, the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decisions of this Court in
34. Therefore, the said decision cannot be relied upon as a valid precedent and we propose to follow the decision of the Bench consisting of three-Judges in the case of Textile Association (supra). Moreover, in this case, the landlord has not made out any case of representation of interest of others even by amendment of plaint when specific plea was taken in the written statement that the suit was not maintainable in the absence of necessary party nor is it a case of tenancy taken by a joint Hindu Family, or a case under Order 1 Rule 8 or of Explanation VI added to Section 11 of the Code.
35. However, in the recent decision of a three-Judges Bench of the Supreme Court viz. Shakuntala Vasant Pahadi and Ors. v. Purushottam Vasant Pethe and Ors. reported in 2007(3) SCC 123, the decision of Surayya Begum (supra), has been approved. In the said decision, there is, however, no detailed discussion of the principles adopted in the case of Surayya Begum (supra), and at the same time, the Bench did not take note of the decision of earlier three-Judges Bench in the case of Textile Association (supra), taking a contrary view. The Bench also did not take note of the decision of a Bench of equal strength in the case of Boddu Venkatakrishna Rao (supra), where the Supreme Court took the view that in case of death of a tenant, his estate devolves upon his heirs as tenants in common and not as joint tenants. In the case of Shakuntala Vasant Pahadi (supra), the Court simply referred to Surayya Begum (supra), and followed it and even the effect of a notice to quit not addressed to all the tenants in common was not considered.
36. As pointed out by the three-Judges Bench of the Supreme Court in the case of Babu Parasu Kaikadi v. Babu reported in AIR 2004 SC 754, if a subsequent Bench of equal strength takes a view different from the one taken earlier by a co-ordinate Bench, the decision of the precedent. At this stage, the following observations of the Supreme Court in the aforesaid case of Babu Kaikadi may be referred to:
Having given our anxious thought, we are of the opinion that for the reasons stated hereinbefore, the decision of this Court in Dhondiram Tatoba Kadam (supra), having not noticed the earlier binding precedent of the co-ordinate Bench and having not considered the mandatory provisions as contained in Sections 15 and 29 of the Act had been rendered per incuriam. It, therefore, does not constitute a binding precedent.
In Halsbury Laws of England, 4th Edition Volume 26 it is stated:
A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow or when it has acted in ignorance of a House of Lords decisions, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force.
In
"Incuria" literally means ''carelessness''. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ''quotable in law'' is avoided and ignored if it is rendered, ''in ignoratium of a statute or other binding authority''. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 143 of the Constitution which embodies the doctrine of precedents as a matter of law.
In
Rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue.
Furthermore, this Court, while rendering judgment in Dhondiram Tatoba Kadam (supra), was bound by its earlier decision of Co-ordinate Bench in Ramchandra Keshav Adke (supra). We are bound to follow the earlier judgment which is precisely on the point in preference to the later judgment which has been rendered without adequate argument at the bar and also without reference to the mandatory provisions of the Act.
37. We, therefore, find that in the latest three-Judges Bench decision of the Supreme Court in the case of Shakuntala Vasant Pahadi (supra), the Supreme Court not only failed to notice the earlier decisions of the three-Judges Bench of the said Court taking a different view but also had no occasion to consider what would be the effect of issuing a notice to quit by not addressing all the tenants in common when the language of Section 13(6) of the Premises Tenancy Act is in a mandatory form as quoted below:
Notwithstanding anything contained in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the rounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that Sub-section shall be filled by the landlord unless he has given to the tenant one month''s notice expiring with a month of the tenancy.
38. In such circumstances, we are of the opinion that the Apex Court, in the case of Shakuntala Vasant Pahadi (supra), had no occasion to consider the effect of not giving a notice to quit in terms of the aforesaid provision before filing a suit for eviction and consequently, the said decision cannot be relied upon as a valid precedent in the facts of the present case.
39. We now propose to deal with the decisions cited by Mr. Chakraborty.
40. The case of Sumilita Bhattacharya and Anr. v. Nila Chatterjee reported in 1989(2) CLJ 351 was delivered at a point of time when the decision in the case of Textile Association (supra), was not delivered. Therefore, after the decision of Textile Association (supra), the aforesaid Division Bench decision taking a contrary view is no longer a good law. In the other case relied upon by Mr. Chakraborty, namely, Gopal Chandra Das v. Saraswati Basak reported in 2003(1) CHN 287, it appears that the Division Bench took no notice of the Supreme Court decision in the case of Textile Association (supra), and, as such, the said decision taking a contrary view cannot be said to be valid precedent.
41. As the Supreme Court in the case of Textile Association (supra), after considering the earlier decisions of the Supreme Court of India in the case of Kanji Manji (supra) and H.C. Pandey (supra) specifically came to the conclusion that the principle laid down in those cases relating to service of notice cannot have any application when the question of making of all the tenants as parties in a suit for eviction arises for consideration, we are bound by the said decision as the said decision has not been upset by any subsequent decision of a larger Bench. We have earlier pointed out that in the case of H.C. Pandey (supra), the earlier two decisions of the Apex Court were not taken note of.
42. In the case of Santosh Kumar Mitra v. Snehalata Roy and Ors. reported in 2000(2) CHN 30, the widowed daughter-in-law of the original tenant who was admittedly residing in Delhi for a long time was not made party and no notice to quit was also addressed to her. Before the learned Trial Judge, the absence of the said daughter-in-law or the plea of maintainability of the suit for her absence was not urged and such point was raised for the first time before the High Court. In such circumstances, the Division Bench was of the view that such point should not be permitted to be raised for the first time in appeal as it appears from paragraph 12 of the judgement. Apart from the said fact. Their Lordships after considering the evidence on record came to the conclusion that there was a case of implied surrender of tenancy by the said daughter-in-law by relying upon the decision of the Supreme Court in the case of Puspa Rani and Ors. v. Bhagawanti Devi reported in 1994(Supp) 3 SCC 76. In the case of Puspa Rani (supra), there was specific case of surrender of tenancy by the landlord and such issue was answered against the tenant. In the case before us, after the addition of the heirs of one of the brothers Salil, the plaintiff did not amend the plaint and no case of surrender was ever pleaded and thus, such plea being basically an issue of fact cannot be raised without amending the plaint and consequently, we are also unable to consider the case of surrender of tenancy. Moreover, in this case, the added defendants specifically pleaded that at the time of local inspection of the premises they came to know about the pendency of the suit and then prayed for their addition. It appears that no suggestion was given to the DW-2 that he was not staying in the suit property. Therefore, in this case, the heirs of the other brother of Salil were very much staying in the suit property and as such, the case of Santosh Kumar Mitra (supra), is thus distinguishable on the facts in the sense that in that case admittedly the widowed daughter-in-law of the original tenant was staying in Delhi for a long time where as in this case, the left out heirs of the tenant are very much staying in the same tenanted property. The said decision, thus, does not help the appellant in any way.
43. We, therefore, find that the learned Court below rightly held that the suit was not maintainable in the absence of valid notice to quit and at the same time, even after the addition of parties at the instance of some of the left out tenants, the plaintiff not having amended the plaint by admitting their tenancy and another brother of Salil not having been brought on record, the suit is liable to be dismissed also on the ground of absence of necessary party.
44. We, therefore, find that in view of the Division Bench decision of this Court in the case of Jaharlal Saha and Ors. v. Pradip Saho. and Ors (supra), where all the decisions on the point have been elaborately dealt with, there is ho escape from the conclusion that the suit is not maintainable in the absence of heirs of other two sons of Sashanka than Salil and the learned Trial Judge rightly dismissed the suit.
45. We, thus, find no reason to interfere with the judgment and decree passed by the learned Trial Judge. The appeal, thus, is dismissed. In the facts and circumstances, there will be, however, no order as to costs.
Rudrendra Nath Banerjee, J.
I agree.
