IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ORDER. The State Bank of Bikaner vs. Bhagwati Prasad Sharma & Jaipur & anr. & ors. S.B.Civil Revision Petition No.173/2004 against the judgment and decree dated 14.8.2002 passed by the Addl. District Judge No.2, Sriganganagar camp Suratgarh in CAD No.1/2002.. Date of Order: December 11th ,2004. PRESENT HON'BLE MR. PRAKASH TATIA,J. Mr. G.K. Garg, Sr. Advocate assisted by Mr. S.S. Purohit for the petitioner. REPORTABLE BY THE COURT: This revision petition is by the tenant-defendant-petitioner against the judgment and decree of the first appellate court dated 14.8.2002 by which the first appellate court, upheld the judgment and decree of the trial court dated 27.2.2002 by which the trial court determined the standard rent for the disputed rented premises. The trial court vide judgment and decree dated 27.2.2002, decreed the suit of the plaintiff and fixed the standard rent for the premises as under:- (1) From 31.5.1976 to 31.5.1981 @ Rs.2500/- per month (2) From 1.6.1981 to 31.5.1986 @ Rs.2 per sq.ft. (3) From 1.6.1986 to 31.5.1991 @ Rs.3 per sq.ft. (4) From 1.6.1991 to 31.5.1996 @ Rs.4 per sq.ft. (5) From 1.1.1996 to 31.5.2001 (the day on which the possession was handed over by the tenant-petitioner to the landlord respondent no.1) @ 5 per sq.ft. 2. The court held that total area let out to the defendant is 3104 sq.ft. The trial court also awarded interest over the arrears of rent @ 6% per annum. 3. Brief facts of the case are that the plaintiff-deceased Pooran Chand, in the year 1965-1966 when he was sick and on long leave from his service and was in need of money, let out the suit premises to the petitioner-State Bank of Bikaner and Jaipur, on 5.5.1966, on monthly rent of Rs 500/-. After ten years from letting out the premises, in the year 1976, on 24 July 1976, he filed the present suit against the defendant-petitioner, for eviction and for fixation of standard rent. On 29th Sept 1984,during the pendency of the suit, the original plaintiff Pooran Chand expired and his legal representative- respondent no.1 was taken on record by the order of this Court dated 8.7.1988 passed in S.B.Civil Revision Petition No.691/1987. 4. During the pendency of the suit, the defendant submitted an application before the trial court on 10.1.2001 and stated that the defendant-petitioner has vacated the suit premises and has shifted their business to new building, therefore, the defendant wants to hand over the possession of the suit premises to the plaintiff, the legal representative of the deceased plaintiff. The defendant also surrendered the key of the lock of the premises before the court with a prayer that the possession of the suit premises may be delivered to the legal representative of the deceased plaintiff. On 22.1.2001, the defendant-petitioner submitted another application and informed the court that the defendant-petitioner vacated the remaining apartments of the rented premises also; therefore, the possession of the entire premises may be handed over to the legal representative of the deceased plaintiff. The defendant-petitioner further submitted that they paid the electricity charges and they will pay the remaining amount of the electricity charges, if found due, to the plaintiff. In response to above application, the plaintiff, submitted an application before the trial court stating that he is ready to take possession of the rented premises. Upon non-petitioner-plaintiff’s application, the trial court, in presence of the advocate for the defendant-petitioner, handed over the keys of the premises to the petitioner bank’s representative who handed over possession of the premises to the plaintiff-respondent no.1, Legal Representative of deceased plaintiff, on the same day. Since, the possession of the premises was handed over by the defendant-tenant-petitioner to respondent-no.1- plaintiff, therefore, the suit before the trial court remained only for determination of the standard rent of the premises in question. 5. .Above facts are relevant because of the reason that after sixteen years from the order of the High Court dated. 8.7.1988, of taking on record the legal representatives of the deceased plaintiff and after handing over possession of the rented premises voluntarily, to the respondent no.1-legal representative of original plaintiff and who is admittedly, born son of the original plaintiff, the petitioner-defendant is seeking review of the order dated 8.7.1988 of this court, that too, under the powers of the High Court to review the orders suo motu and also challenging the title of the respondent no.1 to the premises in question. 6. The learned counsel for the petitioner vehemently submitted that, the deceased plaintiff in his plaint admitted that he embraced Islam religion in the year 1958 and purchased the property in dispute in the year 1964, i.e. after becoming Mohammedan. According to the learned counsel for the petitioner, the deceased plaintiff after embracing the religion Islam married a Muslim woman and from that Muslim woman the deceased plaintiff had two sons. Therefore, according to learned counsel for the petitioner, the property in dispute, on death of the original plaintiff-Pooran Chand, devolved upon his Mohammedan heir as per the Mohammedan Law and not devolved upon the deceased plaintiff's Hindu heir. In support of his contention, learned counsel for the petitioner relied upon the Mayne’s Treatise on Hindu Law and Usage, 14th Edition, published by Bharat Law House New Delhi, 2001, wherein the author has noticed that “Where a Hindu becomes a convert to Mohammedanism, he accepts a new mode of life, which is governed by a law recognised, and enforced, in India. The property which he was possessed of at the time of his conversion, will devolve upon those who were entitled to it at that time, by the Hindu Law, but that the property, which he may subsequently acquire, will devolve according to Mohammedan Law” (from, 2 W Mac N 131, 132; Jowala vs. Dharaun (1866) 10 MIA 511, 537. 7. Finding, insurmountable difficulty created by the order of this Court dated 8.7.1988, whereby the respondents were substituted as party legal representative of original deceased plaintiff despite the petitioner's same objection before this Court, learned counsel for the petitioner submitted that the High Court has ample power to review its own order suo motu. The learned counsel for the petitioner emphatically submitted that when error of law is brought to the notice of the High Court, then it is the duty of the High Court to correct the error being court of record. The learned counsel for the petitioner further submitted that the High Court can review the order passed by it even after such a delay of 16 years and even in the cases where the aggrieved party himself failed to challenge the order in accordance with law and in time. In support of his contention, the learned counsel for the petitioner relied upon the judgment of the Hon’ble Apex Court delivered in the case of M.M. Thomas vs. State of Kerala and another ( (2000) 1 SCC 666). 8. The learned counsel for the petitioner further submitted that the suit has already abated in the year 1984 when the plaintiff died and his Mohammedan heirs were not brought on record in the suit. The persons impleaded as party are not legal representatives of the deceased and nor they can represent the estate of the deceased. It is further submitted that principle of sufficient representation of estate of deceased by any co-sharer or legal representatives has no application where the deceased-plaintiff was Mohammedan because one successor of Mohammedan cannot represent interest of other Mohammedan heir as there is no unity of title nor they got the property jointly. There is no concept in the Mohammedan Law analogous to the joint Hindu Family; therefore, there cannot be a ‘karta’ in Mohammedan family. The learned counsel for the petitioner relied upon the judgment of the Hon’ble Apex Court delivered in the case of Harihar Prasad Singh and others vs. Balmki Prasad Singh and others (AIR 1975 SC 733). According to learned counsel for the petitioner, the decree under challenge is, therefore, nullity. It is also submitted that any decision given on application under Order 22 Rules 3 and 4 and under Order 22 Rule 5, C.P.C. are not res judicata. The learned counsel for the petitioner relied upon the judgment of the Himachal Prades High Court delivered in the case of Suraj Mani and another vs. Kirhori Lal (AIR 1976 Himachal Pradesh 74). It is also submitted that the term “legal representative” is wider term and if one is legal representative of deceased plaintiff, still he may not be his successor to the property and the title may not devolve upon that legal representative, therefore, even if it is held that plaintiff respondent no.1 is legal representative of deceased Pooran Chand, still he was not entitled for relief in the suit for himself as he is not successor to the property of the deceased Pooran Chand which deceased Pooran Chand acquired after becoming Mohammedan. 9. According to the learned counsel for the petitioner, the two courts below under wrong assumption of law that effect of the judgment of this court given in the case of Khem Chand vs. State of Rajasthan & anr. (1999 (2) WLC (Raj.) 230), by which the sub- sec. (2) of sec. 6 of the Act of 1950 was declared unconstitutional, is that that provision was never enacted or it was unconstitutional from very beginning and stands removed from statute from the date when it was enacted. In other words, the courts below have committed error of law in holding that the judgment delivered in the case of Khem Chand’s case has retrospective effect. According to the learned counsel for the petitioner, though sub-section (2) of Section 6 of the Act of 1950 was declared unconstitutional and ultra-virus by the Division Bench of this Court but it was declared so, by the judgment dated 30.3.1999, therefore, sub-section (2) of Section 6 of the Act of 1950, was very much a valid law till 30.3.1999. As per provision to sub-clause (b) of sub-section (2) of Section 6, the rent of commercial premises cannot be increased more than 2-1/2 times. Therefore, increase of rent for the premises, for the period prior to 30.3.1999 (the day on which sub-section (2) of Section 6 was declared ultra-virus) is in violation to sub-section (2) of Section 6 of the Act of 1950. 10. Further, according to the learned counsel for the petitioner, the courts below have fixed the standard rent beyond the criteria as given in Section 6(3) of the Act of 1950. The courts below have taken into consideration the cost of the property which was not relevant for the purpose of determining the standard rent of the premises. Sub-section (3) of Section 6 of the Act of 1950, made the cost of the construction, maintenance and repairs, the relevant factors for determination of the standard rent and according to the learned counsel for the petitioner the cost of construction is not variable factor as the cost of the property. In view of the above, the trial court exceeded its jurisdiction in determining the rent which may result into awarding rent to the landlord even beyond the cost of the property itself (in 25 years in case in hand). Further, the award of interest (@ 6% per annum) was also challenged by the petitioner in the revision petition. 11. The learned counsel for the petitioner obviously because of the limited scope under revision jurisdiction under Section 115 of the Civil Procedure Code and concurrent findings of facts recorded by two courts below rightly did not assail the finding of facts on the ground of insufficiency of the evidence or on the ground of wrong or improper appreciation of evidence so far as finding recorded by the two courts below about prevailing market rate of rent and petitioner's own offer of rent on the basis of "Rs per square feet" for taking the building on rent and about rate of rent on which the properties were either let out to the banks or offered to the banks including, to the petitioner in the same city. The challenge to the decree so far as fixation of standard rent is concerned, it is on the ground of adopting wrong method of the calculation and which according to learned counsel for the petitioner was not permissible under sub-section (3) of the Section 6 of the Act of 1950. 12. I considered the submissions of the learned counsel for the petitioner and perused the record. 13. It will be just and proper to consider the submissions of learned consul for the petitioner for review of the order passed by this court dated 8 July, 1988. The question arises for consideration is (1) whether the order passed by this Court, on 8th July 1988 by which the respondents were impeded as legal representatives of the deceased-original- plaintiff in the suit can be, and required or deserves to be reviewed after almost 16 years? 14. It will be worthwhile to mention first, that the petitioner has not sought review of the said order in his revision petition and there is no such prayer in revision petition. It was only during course of arguments that review of order of this Court has been sought. The prayer for review of the order dated 8.7.1988 deserves to be rejected summarily because of more than one reason. Firstly, power of High Court to review is not available to help the grossly negligent persons who did not challenge the order in time as there is no explanation of the petitioner for his not filling review petition before this court for last sixteen years. Secondly, this Court has held in order dated 8 July 1988, that the property in dispute is joint Hindu Family property even in the light of the pleading of the persons who are set up as alleged Mohammedan heirs of deceased-plaintiff by the defendant- petitioner. This finding of fact cannot be challenged in review and therefore, in view of finding of fact against the petitioner, legal plea has no application. Thirdly, the defendant-petitioner accepted the respondent no.1 as their landlord during trial of the suit without reserving their any right and handed over the possession of the suit property to the respondent no.1, son of the original plaintiff and thereby, took benefit of no-liability of the rent from 1.2.2001. Therefore, in view of this fact, now the petitioner-tenant cannot challenge the title of the respondent no.1. The court can take note of this subsequent event. The petitioner tenant without order of any court, voluntarily offered unequivocally admitting in writing before the trial court respondent no.1 as his landlord, handed over possession of the rented premises to the respondent, therefore, the petitioner being tenant of the respondent no.1, cannot challenge the title of the respondent no.1. Fourthly, none of the alleged Mohammedan heirs of the deceased plaintiff came forward despite their knowledge of this litigation, even till now. Notice was served upon the petitioner bank by them in the year 1984 and thereafter no action was taken by them for being impeded as party in the present suit which shows that they are not concerned with the property and by now, since last twenty years (from death of the original plaintiff in the year 1984). 15. Further, in view of the definition of the ' legal representatives’ it is not necessary that one should necessarily be heir of the deceased or upon death of plaintiff or defendant as the case may be, title must devolve upon him on death of the party in the suit. As per the definition of ' legal representatives ' given in sub-section (11) of section 2 CPC, any person who inter-meddles with the estate of the deceased is also legal representative of the deceased. The plaintiff-respondent No 1 is admittedly son of deceased Shri Pooran Chand and he fully inter-meddled with the property is fully proved fact from the document available on record of the trial court. Hon’ble Apex Court, in the case of Custodian of Branches of Banco National Ultramarino vs. Nalini Bainaique reported in 1989 Supp(2) SCC 275 held as under:;- “The definition of “Legal Representative” is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as person who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. If there are many heirs, those in possession bona fide, without there being any fraud or collusion, also entitled to represent the estate of the deceased.” 16. Apart from above reasons, there is no justification for the objection which was raised initially and which is again raised in arguments in revision before this court by the petitioner. From the pleading which is relied upon by the learned counsel for the petitioner itself it is clear that the original plaintiff was, because of heavy mental pressure, feeling totally insecured at relevant time pleaded facts about his conversion to Muslim. . He had developed feeling of threat to his not only property but even to his life. That all apparent facts pleaded by the original deceased-plaintiff himself were ignored by the petitioner for the reasons best known to them. And more shocking is that petitioner-bank took the plea on the basis of a fact which is fully contradictory to document which has been executed between petitioner bank and the deceased plaintiff and that is the registered lease deed by which the petitioner became tenant of the deceased plaintiff. In the registered lease deed, the deceased plaintiff, in the year 1966 gave his name as Pooran Chand Sharma and not as Rustam Khan as claimed to be his name after his conversion. The petitioner’s objection at this stage, after 20 years from the time of death of the original petitioner and after about 16 years from this court’s holding that the property in dispute is joint Hindu Family property of the respondent no.1 and without raising any objection about the respondent no.1’s right to succeed to the property in written statement after respondent was impleaded as plaintiff in the suit, if petitioner tenant wanted to challenge the title of the respondents to the property and despite having knowledge of voluminous trustworthy documentary evidence placed on record by the respondent No.1 and knowing well that even any admission of deceased Pooran Chand, which apparently, made unnecessarily in the plaint and apparently not voluntary, about his conversion to Muslim and which is not binding upon the respondent no.1 and his family members, without raising ground in memo of first appeal, is nothing but an unsuccessful effort to abuse a person by taking totally undue advantage of his position as tenant who is not to loose even possession of the property which he is occupying as tenant of respondent no.1's father. It will be worthwhile to mention here that the respondent No. 1 after being impeded as party in the suit submitted an application under Order 6 Rule 16 CPC and sought deletion of Para No 10 of the plaint as the pleading in Para No. 10 about original plaintiff’s embracing the Islam etc. were unnecessary pleadings. The application was allowed by the trial court after hearing the petitioner vide order dated 30th Nov., 1991. The trial court held that in suit for eviction against a tenant by the landlord, the pleading in Para No. 10 of the plaint is unnecessary pleadings. The petitioner could look into pleadings which were deleted about 12 years ago by the order of the court but could not look the order deleting para No.10 of the plaint. This order dated 30th Nov, 1991 was never challenged by the petitioner either by filing revision petition or in appeal against the decree passed by the trial court and even had not been challenged in this revision petition. Therefore, the alleged admission of the deceased plaintiff is not available on the record. It casts a serious doubt whether petitioner raised this objection as desperate effort to save their money or to serve some one else purpose which may have crop up after the dismissal of the petitioner’s first appeal because after High Court's order dated 8.7.1988 and upto the decision of the appeal of the petitioner by the first appellate court, this objection was not raised. 17 This Court constrained to observed that the petitioner's objection referred above, at this stage may be due to the fact that the petitioner felt secured after delivery of possession of the property to the respondent no.1 as by questioning the title of the petitioner to the property he is not going to suffer in any manner. The petitioner will not expose to any liability on the ground of denial of title of his landlord because the petitioner has already surrendered the possession of the property to the respondent no.1 voluntarily. Otherwise there was no reason for the petitioner to not to take the plea in the written statement by amending the written statement upon respondent no.1's being impleaded as the plaintiff in the suit as legal representative of the deceased Pooran Chand that even if respondent is legal representative of deceased plaintiff even then he is not entitled to decree for possession for himself as property has not devolved upon him which may have exposed the petitioner to the decree for eviction against him on account of denial of title upon finding that the challenge to the title of the respondent no.1 was not bonafide. It will be relevant to mention here that learned counsel for the petitioner has with all force submitted that the property has not devolved upon the respondents and, therefore, respondents are not owner of the property, therefore, the decree is illegal. 18. This Court further can take judicial notice of the abuse of the process of the court by the litigants by taking advantage of their position in cases where the plaintiff died after institution of the suit. In such unfortunate happening the defendant-tenant can raise all sorts of objections against impleading the legal representatives of the deceased plaintiff. In many cases the trial court also failed to notice the scope of the enquiry under Order 22 Rule 5, C.P.C. and some times converted the miscellaneous proceeding of holding an enquiry to determine the question of “legal representative” of deceased plaintiff or deceased defendant to an enquiry for deciding the “title of the suit property”. The legislature purposefully used the words “legal representative” in Order 22 C.P.C. and avoided to use narrower words “heir, successor, executor or administrator or title holder.” This has been done so that the courts may not misdirect themselves from deciding the controversy involved in the suit and proceed to decide the altogether new issue which may not have any relevance with the main controversy involved in the suit. The case between landlords and tenants are among their cases where the question of title cannot be subject matter, more particularly where tenancy is admitted or proved one. If complete enquiry about title to the property of the plaintiff is allowed then the scope of the enquiry in proceedings under Order 22 Rule 5,C.P.C. will be more wider than in main suit itself and it will change the nature of the suit itself. Rule 5 of Order 22, C.P.C. is not provision meant basically for deciding rival claims even between the heirs and legal representatives. The court may in case of rival claims by the applicants, either implead all those claimants in the suit or may choose any of them who may be found appropriate to be impleaded as party in the suit, only for the purpose to continue the suit after the death of the party treating that newly added party as original party or deeming that