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Case Law Details

Case Name : Madhuri Doulatram Choitram Vs Lachmandas Tulsiram Nayar (HUF) (Bombay High Court)
Appeal Number : W.P. No. 9267 of 2019
Date of Judgement/Order : 18/12/2019
Related Assessment Year :
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Madhuri Doulatram Choitram Vs Lachmandas Tulsiram Nayar (HUF) (Bombay High Court)

It is one thing to say that a member of the family other than, or in the absence of, a Karta, may be permitted to prosecute the suit on account of special circumstances of a given case. And a completely different thing to claim that despite a Karta having been appointed, he will not be impleaded to represent the HUF sans the existence of special circumstances. In the latter case, the tenability of the suit, without impleading the Karta, would be in issue.

Reverting to the facts of the case, as the respondent Nos.2 to 4 are already prosecuting the suit, either in the capacity of the co-owner or as the legal representatives of deceased plaintiff No.2 and, at the same time, there is a cloud of doubt over the intendment of the HUF to prosecute the suit for eviction of the tenant, especially on account of the fact that there being material to show that a Karta has indeed been appointed and there is an alleged non-compliance of an order of Appellate Bench in Appeal No.306 of 2009 to bring the Karta on record, steps will have been taken to implead the successor Karta in the instant suit. It would be in the fitness of things to frame and try the issue regarding the tenability of the suit, in the event of non-impleadment of the successor Karta. To this extent, the observations of the Appellate Bench to the effect that the non-impleadment of the successor Karta has no bearing whatsoever on the tenability of the suit are unsustainable.

The question as to whether the HUF as such intends to prosecute the suit for eviction is essentially for the HUF to answer. It would be onerous for the defendants to plead and prove that the HUF does not want to prosecute the suit. Therefore, it would be appropriate to provide an opportunity to the HUF to make its stand clear, if it desires to.

In the aforesaid peculiar circumstances, in my view, it would be appropriate to provide an opportunity to the HUF to bring the successor Karta on record, within a stipulated period, and, in the event of default, frame and try the issue of tenability of the suit for eviction at the instance of HUF, as such, without bringing Karta on record, and plaintiff Nos. 2 to 4, in the capacity of the co-owners of the demised premises. The petition, therefore, deserves to be allowed.

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