Whether legal representative of deceased who was not party to proceeding will be bound by decree?

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4266 of 1984

Decided On: 08.01.1992

Smt.Chhaya Vishnu Sadavarte
Vs.
Indubai alias Indumati Bhaskar Bhavsar (Smt.) and Ors.

Hon’ble Judges/Coram:
A.A. Cazi, J.
Citation:1993 MHLJ 613

1. By this Writ Petition, the petitioner challenges the order dated 28th August 1984 passed by the Civil Judge, Junior Division, Nasik, below Exhibit 16 in Regular Darkhast No. 31 of 1982 by which order the petitioner’s application objecting to issue warrant of possession of premises was rejected and also the order dated 10th September 1984 passed by the III Extra Assistant Judge, Nasik in Civil Miscellaneous Appeal No. 15 of 1984 by which order the petitioner’s appeal was rejected as not maintainable.

2. One Vishnu Eknath Sadavarte was a tenant in respect of shop/go down premises situated at Saraf Bazar, Nasik. On 16th December 1971 his landlords filed Regular Civil Suit No. 32 of 1972 in the Court of Civil Judge, Junior-Division. Nasik for evicting him from those premises. During the pendency of the suit, the said Vishnu Eknath Sadavarte died on 10th September 1974. His widow, two sons and one daughter were brought on record as the legal representatives of the deceased. The present petitioner is also one of the daughters of said deceased but she was not brought on record as defendant in that suit. The suit proceeded to hearing and was decreed. That decree was maintained throughout up to the High Court. In 1982 the landlords filed Darkhast proceedings being Darkhast No. 31 of 1982. In those Darkhast proceedings the present petitioner filed an application being Exhibit 16 and objected to the maintainability of he Darkhast. She contended that she was major at the time of the death of her father, that she had not been brought on record in the suit and therefore the decree was not binding on her and that she was doing the business since the death of her father and she had acquired the status of tenant under the provisions of section 5(11)(c) of the Rent Act. Her application was opposed by the landlords-decree-holders. After a chequered history, the petitioner’s application was rejected by the trial court and a warrant for possession was ordered to be issued under Order 21, Rule 35 and this was by the impugned order dated 28th August 1984. The petitioner then filed an appeal but that was dismissed by the second impugned order dated 10th September 1984. It is under these circumstances that the petitioner has now filed the present Writ Petition.

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3. The petitioner’s case has already been stated above. Now, when a decree is passed in any suit, it is not only the parties to the suit who are bound by it, but in certain circumstances certain other persons who are not parties to the suit are also bound it. The learned Civil Judge Junior Division has held on facts that the present petitioner, though not brought on record as a defendant in the suit, was bound by the decree passed in the suit. The learned Civil Judge has given sound reasons in paragraphs 5, 6 and 10 of his judgment. He has also quite rightly relied upon the decision in MANU/SC/0008/1974 : [1975]2SCR932 Harihar Prasad Singh v. Balmiki Prasad Singh. He has reproduced certain observations from MANU/SC/0008/1974 : [1975]2SCR932 and he has rightly concluded that the present case fell to be governed by those observations. It is enough to point out that the suit was filed against the present petitioner’s father as far back as in 1971. The petitioner’s father died in 1974. The petitioner claims to be running her father’s business of shop/go down which is in question. The suit was in respect of that very same shop/go down. The plaintiff’s mother, brothers and sister were already brought on record in the suit. All these circumstance indicate that the petitioner was quite aware of the proceedings. If she felt that her interests were not properly represented by her mother, brother and sister who had been brought on record as defendants in the suit then she would have approached the Court to be made a party to that suit. It is in these circumstances that the learned Civil Judge rightly concluded that the petitioner considered that her interests were properly looked after by her mother, brothers and sister who were brought on record as defendants in the suit. The learned Civil Judge therefore rightly concluded that although the petitioner had not been brought on record as defendant in the suit, she was as much bound by the decree passed in the suit as those who had already been brought on record in the suit. No interference is called for in the impugned orders and hence this Writ Petition is dismissed with costs.

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