Appellate Division Cases
(Civil)
PARTIES
Kazi Md. Abdul Kuddus and another ……………… Appellants
-Vs-
Mst. Kaimon Bewa and others ……………………Respondents
JUSTICE
Md. Ruhul Amin J
M.M. Ruhul Amin J
JUDGEMENT DATE: 18th October 2006
The Transfer of the Property Act, Section 106. The Small Causes Courts Act, Section 25.
The Code of Civil Procedure, Order 1, Rule 12(1), (2)
The suit was filed are that premises in suit belonged to plaintiffs’ predecessor Mir
Baksha Miah and the said premises was let out to the defendants on November 14,
1960 at monthly rental basis ……………….(2)
Where there are plaintiffs more than one, any or more of them may authorized any other of them to appear, plead or act for such other in any proceeding and similarly where there are defendants more than one, any one or more of them may authorize any other of them to appear, plead or act for such other in any proceeding………(11)
It is seen from the materials on record that the defendants were the tenants of the premises in suit in respect of the shops in question under the plaintiffs’ predecessor
Hazi Mir Baksha Miah who died leaving Khaibor Ali Miah, predecessor of the plaintiff Nos. 1-8 and the plaintiff No.9 as sons and that on the death of Khaibor Ail
Miah, (one of the two sons, i.e. Khaibor Ali Miah and plaintiff No.9), Plaintiff Nos. 1-8 and the plaintiff No.9 were receiving rent of shops separately i.e. rent of one shop was paid by the defendants to the plaintiff Nos. 1-8 and rent of the other shop to the plaintiff No.9. The fact is that the defendants at the time of their initial entry as the tenants in the premises in suit and the tenancy was single one and they are continuing so. The plaintiffs for their convenience made arrangement as to the payment of rent of the premises in suit and the defendants accepted the arrangement so made between the plaintiff Nos.1-8 and plaintiff No.9 and used to pay rent. In that state of the matter we are of the view that the interest of the plaintiffs in respect of the premises in suit is common since they are the joint owners of the premises in suit and the defendants are the tenants of the plaintiffs in respect of the said premises in suit………………..(14)
Since plaintiff No.9 is not taking any exception as to figuring of plaintiff No.3 as P.W.I for all the plaintiff and as to making deposition for him and for the order plaintiffs in the suit in support of the case of the plaintiffs pleaded in the plaint the defendants has no locus standi to take exception to the fact of plaintiff No.3’s being the P.W.l to depose for all the plaintiffs in the suit…………………(15)
Civil Appeal No. 371 of 2003 (From the Judgment and Order dated August 18, 2002 passed by the High Court Division in Civil Revision No. 1578 of 1999)
Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocate-on-record………For the Appellants
Abdul Quayum, Senior Advocate, instructed by M.G. Bhuiyan, Advocate-on-record.. …………For Respondent Nos. 1,3-9
N.I. Bhuiyan, Advocate-on-record…………. For Respondent Nos. 2(a)-2(c)
JUDGMENT
1. Md. Ruhul Amin J: The instant appeal is by the defendants against the judgment dated August 18, 2002 of a Single Bench of the High Court Division in Civil Revision No. 1578 of 1999 discharging the Rule obtained against the judgment and decree dated April 8,1999 of the 1st Court of Assistant Judge, Naogaon in Small Cause Courts Case No. 1 of 1992 decreeing the same.
2. Facts averring which the suit was filed are that premises in suit belonged to plaintiffs’ predecessor Mir Baksha Miah and the said premises was let out to the defendants on November 14, 1960 at monthly rental basis. The defendants were running a business of
Hotel and Restaurant in the premises so let out by Mir Baksha Miah to them, that Mir Baksha Miah died leaving Khaibor AH Miah and plaintiff No.9, that Khaibor Ali Miah died leaving the plaintiff Nos. 1-8, that after the death of Mir Baksha Miah the defendants accepted the heirs of Mir Baksha Miah as their landlords and that after the death of
Khaibor Ail Miah the defendants accepted his heirs and plaintiff No.9 as the common landlords asked the defendants to vacate the premises in suit since they are in bonafide requirement of the said premises for their own use and occupation, that the defendants defaulted in the payment of rent to the plaintiffs, that in the aforesaid state of the matter the plaintiffs served notice (one by the plaintiff Nos. 1-8 and another by the plaintiff No.9) to the defendants under Section 106 of the Transfer of the Property Act to vacate the premises in suit but the defendants did not vacate the Premises in suit and that to save them from being evicted on the ground of default in the payment of rent the defendants started depositing of rent by filing two House Rent Control Cases. Hence the suit.
3. It may be mentioned the defendants took lease of the two shops, as single tenancy from plaintiffs’ predecessor Mir Baksha Miah and that after the death of Mir Baksha Miah defendants, as per arrangement among the plaintiffs, used to pay rent of one room to Khaibor Ali Miah and the rent of other shop to plaintiff No. 9 and that after the death of Khaibor Ali miah the defendants used to pay rent of one shop to the plaintiff Nos. 1-8 and the rent of the other shop to the plaintiff No.9.
4. The suit was contested by the defendants by filing written statement denying the material averments made in the plaint and stating, inter alia, that they on the basis of a written agreement of November 14, 1959 with plaintiffs’ predecessor Hazi Mir Baksha Miah, although prior to that on the basis of oral agreement they were the tenants of the premises in suit, took lease of the premises in suit and were running their business of Hotel and Restaurant, that in the agreement there was a clause that the defendants would never be evicted from the premises in suit i.e. two shops, that Hazi Mir Baksha Miah on receiving Tk.840/- as advance made construction as desired by the defendants and that the said advance amount was adjusted against the rent in 1958 and that thereafter Mir Baksha Miah received further amount of Tk.560/- as advance and made further construction, that it was the stipulation that Tk.560/- would be adjusted against the rent which at the relevant time was Tk.35/- and that after adjustment of the advanced amount by May, 1960, the monthly rent would be Tk.40/-, that the condition of the structures in the premises in suit being in bad shape the defendants requested the plaintiffs to make the necessary repair but the plaintiffs did not do so and on the contrary was exerting pressure upon the defendants to enhance the rent and that the defendants having had realised that the plaintiffs resorted to tactics to make the defendants defaulter in the payment of rent they filed House Rent Control Cases and depositing the rent in the said cases. It was also the case of the defendants that the plaintiffs did not require the premises for their bonafide requirement and for own use and occupation for the purpose of starting business since the plaintiffs have other shops and the same have been let out to different persons. It was also the case of the defendants that the suit as framed impleading the plaintiff No. 9 as one of the plaintiffs is not maintainable since the relief sought by the plaintiff Nos.1-8 in the suit is distinct and different from that of the plaintiff No.9 and as such the suit is liable to be dismissed.
5. The trial Court decreed the suit on the finding that the suit as framed is quite maintainable and that the notice terminating the tenancy has been duly served and the plaintiffs have bonafide requirement of the premises in suit for their own use and occupation. The trial Court also found the defendants defaulter in the payment of rent of the premises in suit. It is seen from the judgment of the trial Court that the said Court on due consideration of the evidence held that the plaintiffs require the premises in suit for their bonafide requirement as well as for their own use and occupation for starting business as some of them are unemployed or a low paid employee in some others shop. As against the judgment and decree of the trial Court the defendants moved the High
Court Division in revisional jurisdiction under section 25 of the Small Cause Courts Act and obtained Rule. The High Court Division discharged the Rule on the finding that the suit as framed is maintainable, that the notices termination the tenancy was quite valid since the suit was filed much long after expiry of the month in the 1st week of which the defendants were asked to vacate the premises in suit. It may be mentioned in the notice terminating tenancy the defendants were asked to vacate the premises in suit on the 7th January, 1992, but the suit was filed on February 13, 1992 and in that state of the matter it was held that the contention of the defendants that the notice terminating the tenancy was defective/invalid was of no merit. The High Court Division on consideration of the evidence held that the plaintiffs have been able to establish their case that they require the premises in suit for the purpose of their own use and occupation. The High Court Division also held, in the background of the evidence on record, that it is quite seen that there is an element of ‘must’ as regard the question of bonafide requirment of the premises in suit by the plaintiffs. The High Court Division also held that the trial Court was quite correct in holding that the defendants are defaulters in the payment of rent.
6. Leave was granted to consider the contention that the High Court Division was in error while discharging the Rule in not considering the mandatory provision of Order 1, Rule 12(2) of the Code of Civil Procedure since there was no authority in writing from plaintiff No.9 to the plaintiff No.3, who figured as P.W.I for the plaintiffs, to depose on behalf of all the plaintiffs including plaintiff No.9 and that no written authority was filed in Court by P.W.I to depose for all the plaintiffs including the plaintiff No.9 and as such the judgment and decree passed in the suit on the basis of the deposition of the P.W.I and affirmance thereof by the High Court Division was being not legal and as such the same is liable to be set aside. The other contention was that the High Court Division was in error in discharging the Rule, since in the notice served under Section 106 of the Transfer of Property Act terminating the tenancy it was mentioned that the defendants were to vacate the premises in suit within 7th January, 1992 instead of terminating the tenancy on the expiry of the month and that in not directing the defendants to vacate the premises in suit on or before the expiry of the notice period i.e. by the end of the month.
7. The second contention that period for vacating the premises in suit as was mentioned by 7th of January, 1992 instead of the end of January, 1992 and consequently the notice being not a valid one and consequent thereupon as there was no valid termination of the tenancy decree passed in the suit and affirmance thereof by the High Court Division was not legal appears to be not legally well conceived one, in the background of the facts of the case in that although on the notice defendants were asked to vacate the premises in suit by 7th January, 1992, but the fact remains that the suit was filed on February 13,
1992 and in that state of the matter the suit having been filed after the expiry of the month i.e. January, 1992 the same was quite maintainable since the period for vacating the premises in suit given till the end of the month and then the suit was filed in the next month i.e. in February, 1992. Since the suit was filed much long after the end of the month, in the 1st of which defendants were asked to vacate the premises in suit, we are of the view that the notice served terminating the tenancy was quite vaild and the suit filed much long after the end of the month, in the first of which they are asked to vacate the premises in suit, was quite maintainable.
8. In this connection the learned Counsel of the plaintiff Respondents has referred as to the case of Solaiman (Md) Vs. Sufia Akhtar Alam being dead, her heirs Narjesa Rahamatullah and others reported in 49 DLR, 288. We are of the opinion that the view expressed in the reported case as to the if in the notice terminating the tenancy period for vacating the premises in suit mentioned is of before the expiry of the month i.e. it is in the middle, or any date which is prior to the last day of the month the same would not be a invalid notice terminating the tenancy if the suit for ejectment if filed after the expiry of the month in the middle of or on any date prior to the last day of the month the tenant(s) was/were asked to vacate the premises in suit and that the suit so filed would be quite maintainable.
9. The other contention has been made upon referring to the provision of Order 1, Rule 12(2) of the Code of Civil Procedure. It was the contention that in the absence of written
authority by the plaintiff No.9 to the plaintiff No.3 who figured as P.W.I and deposed for all the plaintiffs and thus there having violation of mandatory provision of Order 1, rule 12(2) of the Code of Civil Procedure the High Court Division was in serious error in discharging the Rule and consequent thereupon in affirming the judgment and decree of the trial Court decreeing the suit.
10. Provisions of Order 1, rule 12(1) and (2) of the Code of Civil Procedure read as follows: “12(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding. (2) The authority shall be in writing signed by the party giving it and shall be filed in Court”.
11. On reading the provision of Order 1, Rule 12(1) of the Code of Civil Procedure it is seen that where there are plaintiffs more than one, any or more of them may authorized any other of them to appear, plead or act for such other in any proceeding and similarly where there are defendants more than one, any one or more of them may authorize any other of them to appear, plead or act for such other in any proceeding. The provision of Sub-Rule 2 of Rules 12 of order 1 of the Code of Civil Procedure is that the authorization shall be in writing and shall also be signed by the party giving the authority to other plaintiff or defendant and that the same shall be filed in Court. It is not the contention on behalf of the defendant-appellants that in the instant case the plaintiffs including plaintiff No.9 did not sign the plaint and that they did not sign the vocalatname engaging learned Advocate to plead the case on their behalf and to take necessary steps for the prosecution of the suit.
12. From the marginal note of Order 1, Rule 12 of the Code of Civil Procedure it is seen that the provision thereof relates to appearance of one of several plaintiffs or defendants for others. In the instant case there was no situation as contemplates by the provision of
Rule 12(1) of Order 1 of the Code of Civil Procedure and consequently there was no case of compliance of the provision of Rule 12(2) of Order 1 of the Code of Civil Procedure by the plaintiffs or by the plaintiff No.9.
13. It is seen from the materials on record that at the time of trial in support of the case pleaded in the pleading by the plaintiffs No.3 deposed for all the plaintiffs and he was corroborated by other independent and disinterested witness. The plaintiff No.9 has not taken any exception to the matter of figuring of plaintiff No.3 as the P.W.I for all the plaintiffs in the suit. In that state of the matter we are of the view defendants have no occasion to take exception as to the matter of deposing by plaintiff No.3 in support of the plaintiffs’ case including the plaintiff No.9.
14. It appears defendants tried to make out a case that since they were paying rent of the premises in suit which comprises two shops to the two groups of plaintiffs i.e. plaintiff Nos. 1-8 in one groups and plaintiff No.9 in another group and as such plaintiff No.9 could not have been impleaded as one of the plaintiffs in the suit in case the plaintiff Nos. 1-8 had any grievance against the defendants as regard the shop rent of which is being paid to them by the defendants. It is seen from the materials on record that the defendants were the tenants of the premises in suit in respect of the shops in question under the plaintiffs’ predecessor Hazi Mir Baksha Miah who died leaving Khaibor Ali Miah, predecessor of the plaintiff Nos. 1-8 and the plaintiff No.9 as sons and that on the death of Khaibor Ail Miah, (one of the two sons, i.e. Khaibor Ali Miah and plaintiff No.9), Plaintiff Nos. 1-8 and the plaintiff No.9 were receiving rent of shops separately i.e. rent of one shop was paid by the defendants to the plaintiff Nos. 1-8 and rent of the other shop to the plaintiff No.9. The fact is that the defendants at the time of their initial entry as the tenants in the premises in suit and the tenancy was single one and they are continuing so. The plaintiffs for their convenience made arrangement as to the payment of rent of the premises in suit and the defendants accepted the arrangement so made between the plaintiff Nos. 1-8 and plaintiff No.9 and used to pay rent. In that state of the matter we
are of the view that the interest of the plaintiffs in respect of the premises in suit is common since they are the joint owners of the premises in suit and the defendants are the
tenants of the plaintiffs in respect of the said premises in suit.
15. We have already held in the facts and circumstances of the case provision of Order 1,
Rule 12(2) of the Code of Civil Procedure has no manner of application in the suit in question. It has also been mentioned since plaintiff No.9 is not taking any exception as to figuring of plaintiff No.3 as P.W.I for all the plaintiff and as to making deposition for him and for the order plaintiffs in the suit in support of the case of the plaintiffs pleaded in the plaint the defendants has no locus standi to take exception to the fact of plaintiff No.3’s being the P.W.I to depose for all the plaintiffs in the suit.
16. In the afore state of the matter we find no merit in the contention made on behalf of the appellants that High Court Division without taking into consideration mandatory provision of Order 1, Rule 12(2) of the Code of Civil Procedure in discharging the Rule and thereupon affirming the judgment and decree of the trial Court was in error.
17. In the background of the discussions made hereinabove we find no merit in the appeal.
18. Accordingly the appeal is dismissed without any order as to costs.
Ed.
Source: IV ADC (2007), 168