GOYAL, J. - (1.) THE defendant-tenant Sh. Mool Chand has preferred this appeal against the judgment and decree of eviction dated 31. 10. 2001 passed by learned Additional District Judge, Neem-Ka-Thana; District Sikar. THE parties in this appeal would be referred as arrayed in the plaint.
(2.) THE relevant facts in brief are that the plaintiff-landlord filed a civil suit for arrears of rent and eviction on 30. 5. 1992 with the averments that suit shop situated in Shrimadhopur was mortgaged by the plaintiff and his father in favour of the defendant Mool Chand and his father for a consideration of Rs. 8,200/- vide registered mortgage deed dated 2. 6. 1962 with a condition that on payment of the mortgage money, a rent note at the prevalent market rate of rent would be executed by them. THE plaintiff wanted to redeem the mortgaged shop by making the payment but the creditors declined to do so. Hence, the plaintiff filed a suit for redemption. Learned Additional District Judge, Neem-ka-Thana passed preliminary decree of redemption on 24. 2. 1987. In pursuance of this preliminary decree, the plaintiff deposited a sum of Rs. 8,200/- in the bank on 12. 3. 1987. THEreafter, final decree of redemption was passed on 25. 2. 1992. THE defendant now is occupying the suit shop as a tenant since 12. 3. 1987. It was further pleaded that though the disputed shop was mortgaged with the defendant and his father, but it was only the defendant who was in possession of the shop and is now occupying the shop as a tenant. it was also pleaded that the plaintiff is entitled to rent @ Rs. 800/- per month from 12. 3. 1987. The plaintiff sought eviction on the ground of most urgency for carrying on business by his sons. The defendant in his written statement while admitting the facts of mortgage, passing of preliminary and final decree of redemption and his possession in the suit shop as a tenant pleaded that the suit shop was let-out to his father late Sh. Bhoora Mal and the defendant even 60 years prior to the mortgage. Monthly rent of the shop was Rs. 19/- just after the redemption of the mortgage and still the business in the name of firm Bhoora Mal Mool Chand is going on in the suit shop. This Firm Bhoora Mal Mool Chand is the firm of joint Hindu family, therefore, all the legal heirs of late Sh. Bhoora Mal are necessary parties as tenants. While denying the ground of eviction, the liability to pay the rent @ Rs. 800/- per month is also denied. On the basis of the pleadings, following issues were framed:- ****** After recording the evidence of the parties, the learned trial Judge vide impugned judgment dated 31. 10. 2001 decided issues No. 1, 2 & 6 against the plaintiff, issues No. 5&7 against the defendant and while deciding the issues No. 3 & 4 in favour of the plaintiff passed a decree of eviction and for arrears of rent @ Rs. 19/- per month from 12. 5. 1989 with annual interest @ 6% till vacant possession is handed over to the plaintiff. The trial Judge considering the issue No. 10 of partial eviction observed that since issue No. 3 of reasonable and bonafide requirement and issue No. 4 of comparative hardship have been decided n plaintiff's favour, decision on this issue is unnecessary.
(3.) I have heard learned counsel for the parties. On the basis of the submissions made by learned counsel for the defendant- tenant following points arise for determination. (i) Whether the suit was not maintainable in absence of all the legal heirs of late Sh. Bhoora Mal? (ii) Whether the findings of the trial court on reasonable and bonafide requirement as well as comparative hardship are not justified? (iii) Whether partial eviction is possible? First Point :- Mr. Goyal learned counsel appearing for the defendant contended that the shop was let-out to forefathers of late Sh. Bhoora Mal for doing business of joint Hindu family firm; that the plaintiff in suit for redemption impleaded all the legal heirs of late Sh. Bhoora Mal as defendants and the decree in that redemption suit was passed against the defendant as well as other legal heirs of late Sh. Bhoora Mal, hence it was necessary to impleaded all the legal heirs of late Sh. Bhoora Mal in the eviction suit. He placed reliance upon Kumar Jagdish Chandra Sinha and Others vs. Mrs. Eileen K. Patricia D'rozarie (1 ). While dealing with Section 2 (4) of the West Bengal Premises Tenancy Act, 1956 it was held that the legal heirs of the deceased-tenant who were continuing in possession with the tenant would succeed as defendant whether the tenancy is statutory or contractual. Mr. Agarwal learned counsel appearing for the plaintiff- respondent submitted that it is the case of the defendant himself that the shop was let-out to firm late Sh. Bhoora Mal Mool Chand- a joint Hindu family firm and at the time when the suit was filed the defendant was Karta of the joint Hindu family, hence other legal heirs of late Sh. Bhoora Mal were not required to be pleaded as the defendants. Reliance is placed upon Amrit Sagar Gupta and Others vs. Sudesh Behari Lal and Others (2), wherein it was held that the suit by or against the manager of joint Hindu family will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property. It is not necessary to state in the plaint that he is suing as manager in case of plaintiff or he is being sued as manager where he is the defendant. A Karta can represent the family effectively in a proceeding though he is not named as such. Similar view was taken in Sarangapani vs. K. V. Parthiban and Others (3), Kumaji Sare Mal Firm and partners vs. Kalwa Devadattam and Others (4), Vadlamanati Venkatanarayana Rao vs. Gottumukkule Venkata Somaraju (5) T. A. Sankaralingam vs. T. N. Mandi and Others In Abdulla Kunjipokkarukutty and anothers vs. Ayyappan Ravunny and Others (7), it was held that under Hindu law normal presumption is that senior most member is manager of joint Hindu family. Similar view was taken in Varada Bhaktavatsaludu and Another vs. Damojipurapu Venkatanarasimha Rao and Others In Firm Murlidhar Banwarilal vs. Firm Kishorelal Jagannath Prasad and Others (9), it was held that in case of joint Hindu family firm, suit in the name of firm as well as head of family, the provisions of Order 30 Rule 1 C. P. C. have no application and such a defect is one of form and not sufficient to vitiate the suit. Mr. Agarwal referred the pleadings and the evidence of the parties on this point. It was also contended that although the trial court while dealing with issue No. 7 observed that it does not appear to be a case of joint Hindu family but it has been found proved that only the defendant is carrying on business in the suit shop, the suit was found maintainable against him. ;