LIBI T G Vs. DEVASSY

JUDGEMENT

(1.) The appellant is the petitioner in E.A. No. 296/2002 in E.P. No. 1086/2002 in R.C.P. 10/98 on the file of the Principal Munsiff Court, Irinjalakuda. E.A. No. 296/2002 is filed by the petitioner under O.21 R. 97, 99, 100, 101 and 103 read with S.151 of the Code of Civil Procedure for a declaration to the effect that the order passed in RCP 10/98 is not binding on the petitioner in the E.A. for the reason that in the said proceedings she was not made a party and there was no representation on behalf of the petitioner. An order for eviction was obtained by the 1st respondent in R.C.P. No. 10/1998. The petitioner was not a party to the rent control proceedings. Only respondents 2 and 3 herein were counter petitioners in the R.C.P. The disputed shop room was taken on lease by the father of the appellant late Sri. George and since his death about 15 years back, the tenancy right over the same devolved upon the appellant and other legal heirs of late George. Respondents 2 and 3 are two of the legal heirs of late George. The building was taken on rent by the father of the appellant from the original landlord Varghese. The first respondent herein purchased the building on 28.12.1995 and after the purchase, petition for eviction was filed. At the time of the proceedings, the appellant was a minor. She was not impleaded as a respondent in the said proceedings and she was not represented in the said proceeding by a duly authorised guardian or next friend. The Rent Control Court ordered eviction on the ground of bona fide requirement of the landlord against which an appeal was filed by respondents 2 and 3 before the Appellate Authority (Rent Control) and that also culminated in favour of the landlord. Ultimately revision petition was filed before this Court which was also dismissed on 7.3.2002. E.A. was filed before the Execution Court for declaring the right of the appellant over the scheduled building. She, being a minor at the time of the proceedings a fraud has been practised on the appellant. The landlord has not made any bona fide enquiry to ascertain the legal heirs of the deceased tenant. It was in the circumstances the claim petition was filed.

(2.) The first respondent landlord filed objection contending that business in the premises was being run by respondents 2 and 3 on behalf of the other joint tenants. Tenancy right devolved on the wife and children of the original tenant as joint tenants and there has been substantial representation on behalf of the legal heirs. There is no independent right for the appellant and the attempt of the present appellant is only to protract the proceedings. Respondents 2 and 3 filed counter statement supporting the petition. The appellant was examined as PW 1 and Ext. A1 was marked. No evidence was adduced by the respondents. In spite of the evidence, the Trial Court dismissed the application holding that there is substantial representation of the estate. Against the said order, A.S. No. 47/2003 was filed which also ended in dismissal. Against the said judgment, this appeal is filed by the claim petitioner.

(3.) Substantial questions of law involved in this case are: