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Chandra Kumar Guha Vs. Elahi Buksha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in92Ind.Cas.616
AppellantChandra Kumar Guha
RespondentElahi Buksha and ors.
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 4 - abatement of suit--rent suit--joint tenants--non-joinder in appeal--inconsistent decrees. - .....the plaintiff's case is that the tenancy was created in favour of two persons, amanuddin and mona gazi who executed a kabuliyat and that the defendants had succeeded to the interest of these two persons by inheritance and purchase. one of the defendants died before the institution of the suit and the heirs of this defendant were not properly summoned. the suit was decreed in full against the remaining defendants by the court of first instance. against this decree an appeal was preferred by four of the defendants, the three sons and the widow of mona gazi. the appeal was decreed and the lower appellate court decided that the stipulation for payment of interest at 75 per cent, with damages and various other abwabs must beheld to be hard and penal and that the plaintiff was entitled.....
Judgment:

1. This appeal arises on of a suit for rent. The plaintiff brought a suit against 14 defendants claiming from them rent with interest on the arrears at the rate of 75 per cent, per annum. The plaintiff's case is that the tenancy was created in favour of two persons, Amanuddin and Mona Gazi who executed a kabuliyat and that the defendants had succeeded to the interest of these two persons by inheritance and purchase. One of the defendants died before the institution of the suit and the heirs of this defendant were not properly summoned. The suit was decreed in full against the remaining defendants by the Court of first instance. Against this decree an appeal was preferred by four of the defendants, the three sons and the widow of Mona Gazi. The appeal was decreed and the lower Appellate Court decided that the stipulation for payment of interest at 75 per cent, with damages and various other abwabs must beheld to be hard and penal and that the plaintiff was entitled to get damages at 12 per cent, per annum instead of interest at the rate of 75 per cent, per annum on the arrears. Against this decision the plaintiff has appealed to this Court and has joined as respondents-to this appeal only those four defendants we appealed to the lower Appellate Court.

2. A preliminary objection has been taken on behalf of these defendant-respondents that the appeal is not maintainable in the absence of the other defendants. On behalf of the appellant this Objection is met by the contention that as the original kabuliyat was executed by the two tenants, Amanuddin and Mona Gazi, they were jointly and severally liable to the rent and it was open to the landlord to sue either and that he is entitled now to claim relief against the representatives of Mona Gazi alone. This contention fails en the ground that though it was optional with the plaintiff appellant to sue, the representatives of either of the joint tenants he did not frame his suit in this form. Further on the pleading that the defendants are the representatives of the original tenants by inheritance and purchase it is not apparent that the defendants who are respondents in this appeal are all the representatives of Mona Gazi.

3. A further objection to the appellant's action in not joining the other defendants is that if this appeal is decreed there will be two inconsistent decrees, a decree for arrears of rent with damages at 12 per cent, against some of the tenants and a decree for arrears of rent with interest at 75 per cent, per annum against the four respondents in' this appeal.

4. We, therefore, hold that the objection of non-joinder is fatal to this appeal which is accordingly dismissed with costs.


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