S.H. Sheth, J.
1. This litigation represents the grossest abuse of the protection given by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act No. LVII of 1947) (hereinafter referred to as 'the Bombay Rent Act') to the tenants.The facts of the case briefly stated are as under.
2. Landlord Malangbhai filed Regular Civil Suit No. 377 of 1958 against tenant Thakorebhai in the Court of the Civil judge (junior Division) at Baroda for recovery of possession of the suit premises on the ground that he requires them reasonably and bona fide for their personal occupation. That suit was filed on 10th April 1958. On 22nd June 1959, consent decree was passed under which tenant Thakorebhai was given five years time to vacate the suit premises. That period ended on 22nd June 1964. Execution application was filed by the landlord to execute the consent decree for possession because on the expiry of five years' period, tenant Thakorebhai did not vacate the suit premises and hand over possession thereof to landlord Malangbhai. The resistance by tenant Thakorebhai to the execution proceedings took that matter to the District Court and also to the High Court. He ultimately failed in those proceedings and the decree was ordered to be executed. Thereafter tenant Thakorebhai himself filed against landlord Malangbhai Regular Civil Suit No. 855 of 1964 for a declaration that consent decree passed against him in Regular Civil Suit No. 377 of 1958 was a nullity because it was obtained by landlord Malangbhai by fraud. The trial Court dismissed that suit. Tenant Thakorebhai preferred an appeal against that decree to the District Court. It was dismissed. Thereafter Pravinchandra, son of Thakorebhai, filed against landlord Malang a civil suit for a declaration that he has been the tenant of the suit premises and that the consent decree passed against Thakorebhai was not binding on him. That suit was also dismissed. Thereafter Dhankorben, mother of tenant Thakorbhai, and Chandrakantaben Thakorebhai's wife, filed the present suit for a declaration that consent decree passed against Thakorebhai does not bind them and that they are the tenants in respect of the suit permises. That suit-Regular Civil Suit No. 5-99 of 1967-was filed on 18th April 1967. On 9th December 1971, the learned trial judge dismissed the suit on merits. Dhankorben and Chandrakantaben filed appeal to the District Court against that decree. In that appeal, an application was made by Dhankorben and Chandrakantaben praying for leave to amend the plaint by joining original tenant Thakorebhai as a party. The learned appellate judge allowed that application, ordered tenant Thakorebhai to be joined as a Party set aside the decree passed by the learned trial judge and remanded the suit to the trial Court for a fresh trial. He also issued interim injunction restraining during the pendency of the proceedings before the trial Court after remand, landlord Malangbhai from proceeding further with the execution application and recovering possession of the suit premises.
3. It is that order of remand which is challenged by landlord Malangbhai in this revision application.
4. Mr. S. B. Majmudar who appears for the landlord has contended before us that the learned appellate Judge was in error in holding that Thakorebhai the original ten- a necessary party to the present suit. It appears that the learned appellate judge has relied upon the decision of this Court in Sudhakar Kashiram v. Nagindas Atmaram, (1972) 13 Guj LR 536. The facts in that case were that Kashirarn was the original tenant He died leaving two sons and widow Saraswati. After his death, Saraswati went on paying the rent of the suit premises which the landlord accepted, In 1959 the landlord filed the suit for possession against Saraswati for evicting 'her on the ground of non-payment of arrears of rent. Decree for eviction was passed against Saraswati. To that suit, two minor sons of Kashiram were not joined as parties. The decree for eviction which was passed against Saraswati was reversed in appeal but was restored in the revision application by the High Court. Thereafter two minor sons of Kashiram filed a suit alleging that they were not parties to the previous suit in which decree was passed against Saraswati, their mother, and that it was not binding on them. They also contended that after the death of Kashiram, since they had been residing with him during his lifetime, they had become tenants in their own rights. They further contended that the landlord had obtained against Saraswati decree for possession fraudulently and illegally. Under those circumstances, the two sons of Kashirarn prayed for a declaration that they were the tenants of the suit premises and prayed for a further declaration that the decree passed against Saraswati was not binding on them and prayed for an injunction restraining the landlord from executing that decree. It was contended before Mr. justice Dave who decided that case that no declaration in favour of two sons of Kashiram could be made in absence of their mother Saraswati even though Saraswatis rights had already been adjudicated upon in the earlier suit. Mr. Justice Dave upheld that contention and observed as follows:
'........ As stated in Section 5(11)(c),any member of the tenant's family residing with him at the time of his death may be declared in default of agreement by a court,to be a tenant. For ought we know, if a question arose before the court as to who should have been appointed as a tenant in 1948 at the time of the death of the tenant, the court may as well prefer Saraswati who was the only major member of the family being the mother and guardian of the minor sons. Saraswati herefore would be a necessary party o this proceeding. However, in the absence of any order by the competent court declaring as to who was the tenant as defined in Section 5(11)(c) of the Act, on the death of Kashiram, the decree obtained, by the land lord against Saraswati treating her as a tenant could not remain in operation. Such a decree could not be binding on the resent plaintiffs. However, as Bai Saraswati was not a party to the present proceeding,no declaration could be given by the court in her absence and therefore, the question whether the decree obtained against Saraswati would be binding on the present plaintiffs or not,could not be decided without impleading her as a party to the suit. In the interest of justice, therefore, it would be just and fair to set aside the decree of the trial Court as well as the decree of the bench of the Small Cause Court at Ahmedabad and send back the papers to the trial Court with a direction to proceed further according to law in the light of the observations made above after giving an opportunity to the plaintiffs to implead Bai Saraswati as a party in the suit.'
We are, with respect, unable to appreciate the principle laid down by the learned judge. In that case, rights of Saraswati had already been decided upon and it is difficult for us to understand why in absence of Saraswati no declaration could have been granted in favour of two sons of Kashiram. Whatever rights Saraswati had had already been adjudicated upon. The decree passed against her was binding upon her. Merely because the two sons of Kashiram were not parties to it, it could not cease to be binding upon Saraswati. Law does not permit an heir of a tenant to fight a second innings in suit of an identical nature if his rights have been decided upon.
4A. 'For ought we know is no reason which can support the conclusion which the learned judge has recorded. It is difficult for us to appreciate how a suit filed by some heirs of a tenant against the landlord is not maintainable in absence of some other heirs when the rights of the latter mentioned group of heirs have already been decided upon in an earlier litigation. In fact, in the earlier suit filed by the landlord against some of the heirs, the latter represented the estate of the deceased tenant (vide (i) N. K. Mohd. Sulaiman Sahib v. N. C. Mohd. Ismail Saheb, AIR 1966 SC 792, and (ii) Haribar Prasad Singh v. Balmiki Prasad Singh, AIR 197 5 SC 733) and the decree passed therein would be a perfectly valid decree binding the estate of the deceased tenant. Even in light of the language used in Section 5(11)(c) of the Bombay Bent Act, it is difficult to uphold the view that a valid and binding decree can be passed against the estate of the deceased tenant only when all the heirs of the deceased tenant are on record. That section does not introduce any exception to the general rule that a decree passed against a person binds him though it may not bind others. Therefore, it does not necessarily mean that Saraswati whose rights had been adjudicated upon in an earlier litigation between her and, her landlord was a necessary party to the suit filed by two sons of Kashiram.
5. It has been laid down by the Supreme Court in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar AIR 1963 SC 786, 'A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.' In the instant case, rights of Thakorebhai had already been decided in an earlier suit between him and his landlord Malangbhai. Thereafter Pravinchandra filed a suit against Malangbhai in respect of the suit premises which was lost. The present suit has been filed by Thakorebhai's wife and mother for a declaration that they have been the tenants in respect of the suit premises in their own rights. It is difficult for us to imagine how Thakorebhai is a necessary party after his rights in the earlier suit have been finally adjudicated upon. Applying the test which the Supreme Court has laid down in the case of Udit Narain Singh (supra), we are of the opinion that a declaratory decree in favour of the plaintiffs-Dhankorben and Chandrakantaben----can be passed by the Court even in absence of Thakorebhai whose rights were adjudicated upon long back, In order to hold that Dhankorben and Cbandrakantaben have been tenants in their own rights in respect of the suit premises, Thakorebhai whose rights have been decided is not at all a necessary party. In our opinion, therefore, Sudhakar Kashiram's case (1972) 13 Guj LR 536 (supra) does not lay down the correct principle. In our opinion, where the rights of a person have been finally adjudicated upon in an earlier litigation, his presence in a subsequent litigation in respect of the same property against the same owner by some one else is not at all necessary because, in his absence, relief to such persons against the owner of the property can be effectively given. The learned appellate judge was, therefore, in error in allowing the application made by Chandrakantaben and Dhankorben, setting aside the decree and remanding the suit to the trial Court. In our opinion, he ought to have rejected that application.
6. In the result, we allow this revision application, set aside the order of remand made by the learned appellate judge, reject the application made by Dhankorben and Chandrakantaben for amending the plaint, restore the decree passed by the trial Court and remand the appeal to the learned appellate judge with a direction that he shall finally decide the appeal on merits in accordance with law.
7. The litigation between the parties has been pending for 18 years. We, therefore, direct that the learned appellate judge shall finally decide the appeal within one month from the receipt of the writ of this Court.
8.Rule is made absolute with costs,
9. Revision allowed.