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Prem Kumari Sharma Vs. Raj Mani Dubey and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Revision No. 465 of 2001
Judge
Reported in2002(1)AWC157
ActsProvincial Small Cause Courts Act, 1887 - Sections 23 and 25; Code of Civil Procedure (CPC), 1908 - Order I, Rule 10
AppellantPrem Kumari Sharma
RespondentRaj Mani Dubey and ors.
Appellant AdvocateG.S. Srivastava and ;Ravi Kiran Jain, Advs.
Respondent AdvocateRajesh Tandon and ;Som Nath Seth, Advs.
DispositionRevision allowed
Cases ReferredSmt. Nai Bahu v. Lala Ramnarayan and Ors.
Excerpt:
.....- impleadment of party - section 23 of provincial small cause courts act, 1887 and order 1 rule 10 of code of civil procedure, 1908 - revision filed against rejection of impleadment application - plaint of suit for eviction returned after impleadment of revisionist - plaint presented again without revisionist as party - contended that subsequent suit was fresh suit - both suit same - decision of impleadment of revisionist binding when suit filed again - otherwise would defeat provision of law - order of rejection of impleadment by trial court liable to be quashed. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held,..........senior advocate for the revisionist that prior to this suit, the opposite party nos. 1 and 2 filed a suit no. 113 of 1992 against the other opposite parties, which was also a suit for eviction and arrears of rent regarding the same premises. in that suit, the applicant moved an application under order 1. rule 10, c.p.c.. which was rejected by the trial court. therefore, the applicant filed a civil revision no. 399 of 1994. which was allowed by the district judge. allahabad on 1.2.1995 by order, annexure-1 to the affidavit, that thereafter the applicant was impleaded in that suit ; that suit was returned by the order dated 29.11.1995 for presentation to proper court under section 23 of the provincial small causes court act for the reason that it involved the question of title. it is.....
Judgment:

B.K. Rathi, J.

1. This revision under Section 25, Provincial Small Causes Court Act has been preferred against the order, dated 6.8.2001 passed by the XVIII Additional District Judge/Small Causes Court, Allahabad in Suit No. 2/2001. by which he rejected the application of the revisionist 15-C under Order 1, Rule 10, C.P.C. for imp leading her as party. The facts of the case are as follows :

'The opposite party Nos. 1 and 2 filed the above Suit No. 2 of 2001 against the opposite party Nos. 3 and 4 for eviction from the disputed building and for recovery of arrears of rent. The suit is pending in the Court of the Additional District Judge, who is exercising the powers of the Judge. Small Causes Court for this suit. The revisionist moved an application 15C under Order 1, Rule 10, C.P.C. for her impalement. It is alleged that she is daughter of Dr. Ishwari Prasad who was the owner and landlord of the property in dispute. He, in his life-time, on 29.10.1984 executed a registered Will of the property in favour of the applicant, his only daughter; that it was the last Will of Dr. Ishwari Prasad and, therefore, after his death, she has become the owner and the landlady of the premises in dispute ; that opposite party Nos. 1 and 2 claim the property on the basis of the unregistered Will, dated 22.7.1983, which is a forged Will and they are neither the landlords nor the owners of the property in dispute. The learned trial court recorded the finding that the question whether the plaintiffs are the landlords of the building in dispute of defendants is only involved in this case. Therefore, the applicant is neither necessary nor proper party to the suit for complete and effective adjudication of the suit. He accordingly. rejected the application. Aggrieved by it the present revision has been preferred.'

2. 1 have heard Sri Ravi Kiran Jain, learned senior Advocate for the revisionist and Sri Rajesh Tandon, learned senior Advocate for the opposite party Nos. 1 and 2, the plaintiffs in the suit and have perused the record.

3. It is contended by Sri Ravi Kiran Jain, learned senior Advocate for the revisionist that prior to this suit, the opposite party Nos. 1 and 2 filed a Suit No. 113 of 1992 against the other opposite parties, which was also a suit for eviction and arrears of rent regarding the same premises. In that suit, the applicant moved an application under Order 1. Rule 10, C.P.C.. which was rejected by the trial court. Therefore, the applicant filed a Civil Revision No. 399 of 1994. which was allowed by the District Judge. Allahabad on 1.2.1995 by order, Annexure-1 to the affidavit, that thereafter the applicant was impleaded in that suit ; that suit was returned by the order dated 29.11.1995 for presentation to proper Court under Section 23 of the Provincial Small Causes Court Act for the reason that it involved the question of title. It is contended that thereafter the present suit has been filed in which the applicant has not been impleaded as party; that, therefore, the applicant applied for impleadment as party and her application was wrongly rejected by the trial court.

4. As against this, the learned counsel for the opposite party Nos. 1 and 2 have raised several pleas. It is contended that the plaintiff is dominous litis and the general principle is that nobody would be impleaded as party, if plaintiff is opposed to it. It is contended that it is simple suit for eviction and arrears of rent, in which the only question for decision is that whether the relationship of the land-lord and tenant exists or not ; that, therefore, the revisionist is not necessary party to enable the Court to effectually and completely adjudicate upon and settle the question involved in the suit. It is also contended that the Courts have repeatedly held that in a suit for rent and eviction third party cannot be added to complicate the issue : that the question of title is also not relevant.

5. The learned counsel for the respondents in support of the arguments has referred to several cases on these points, which are :

1. Chandrika Prasad v. District Judge, Rae-Bareilly and others, 1981 ARC 346.

2. Jiya Lal v. Xlth Additional District Judge, Meerut, 1994 (1) ARC 280.

3. Smt. Rajeshwari Devi v. IVth Additional District Judge, Kanpur and other, 1982 ARC 89.

4. Ratan Lal Agarwal v. Ramesh Chandra and Ors.. 1985 (1) ARC 143.

5. Sri Ram Bhagwan and Anr. v. Ram Chandra and others, 1987 (2) ARC 357.

6. Sharafat Hussain and Ors. v. Xlth Additional District Judge, Moradabad and Ors. 1992 (2) ARC 307.

7. Gopi Nath v. 1st Additional District Judge, Ghazipur and Ors. 200O (40) ALR 685.

8. Sri Mandir Mahadav Prithvi Nath and Ors. v. Swamy Prakashand. 1981 ALJ 567.

9. Lakshman Prasad Kanchan v. Kranti Kumar Kanchan, 1992 ACJ 792.

10. Smt. Prabha Saxena v. IInd Additional District Judge, Kanpur Nagar and others, 1989 (2) ARC 197. .

11. Shafiq Ahmad v. Vth Additional District Judge, Varanasi and others, 1988 ALJ 612.

12. Ramesh Hiranand Kundanamal v. Municipal Corporation of Greater Bombay and others, : [1992]2SCR1 .

These decisions are not required to be considered in detail as there is no quarrel with the principle of law as argued by the learned counsel for the opposite party Nos. 1 and 2.

6. In the suit for eviction, only the relationship of the landlord and tenant is to be decided and the question of title and interest of other persons are foreign to the suit. However, this argument of the learned counsel is totally beside the point involved in this matter.

7. As already said, the opposite party Nos. 1 and 2 filed a Suit No. 113 of 1992 against the opposite party Nos. 3 and 4 of the same nature for eviction and recovery of arrears of rent regarding the same property. In that suit, the revisionist moved application under Order 1, Rule 10, C.P.C. which was dismissed by the trial court. Against that order, the revisionist preferred Civil Revision No. 399 of 1994, which was allowed by the District Judge, Allahabad on 1.2.1995 and the applicant was directed to be arrayed as defendant No. 3 in the suit.

8. It appears that the suit was pending in the Court of Civil Judge, exercising power and jurisdiction of the Judge. Small Causes Court. Two applications were moved in that suit. One was for return of the plaint for presentation to proper court for the reason that the pecuniary jurisdiction of the Court is for the suits up to the valuation of Rs. 25.000 and the valuation of the suit is more than Rs. 25,000. Another application was moved for return of the plaint under Section 23 of the Provincial Small Causes Court Act for the reason that the suit involved the question of title which could be decided by the regular Court only. The applications were disposed of by the order, dated 29.11-1995 and after considering the facts, the then trial court ordered that the plaint be returned under Section 23 of the Provincial Small Causes Court for being presented to the regular court.

9. It has been argued by Sri Ravi Kiran Jain. Senior Advocate for the revisionist that the suit, thereafter, could have been filed only in the present form. That after taking back the plaint. It should have been presented in the Court in the same form, but it was not done and fresh suit was filed in the Court of Judge, Small Causes Court.

10. As against this, the learned senior Advocate for the respondents has argued that he has not filed that plaint. On the other hand, he has filed a fresh suit on the fresh cause of action. It is contended that first notice was given on 21.4.1992 terminating the tenancy and on that basis, Suit No. 113 of 1992 was filed ; that a fresh notice of termination of tenancy has been served on 8.11.2000. that thereafter the present suit has been filed on the fresh cause of action and the order of the previous suit is not binding on him. Copies of both the notices were also produced for the perusal of the Court. However, it may be mentioned that the tenancy of the respondent Nos. 3 and 4 already terminated by earlier notice dated 21.4.1992 and on that basis, Suit No. 113 of 1992 was filed. No reason has been mentioned as to why fresh notice of termination of tenancy was given. It is not mentioned in the second notice that there was some defect in previous notice and, therefore, a fresh notice is being served.

11. Therefore, this argument of the learned counsel that the fresh notice has been served and there is fresh cause of action for the suit cannot be accepted. On the other hand. It is only a device to bye-pass the order passed in the earlier suit. The plaintiff cannot be permitted to ignore the orders against him passed in a suit by this noble method. The earlier order of the Court is binding on him as it has became final. It was not challenged in any Court.

12. In my opinion, the said order cannot be ignored in the manner in which it has been ignored by the plaintiff. If it is permitted, this order passed by me can also be ignored by the plaintiffs by again serving a notice of termination of tenancy and by filing a third suit. In my opinion, it is not at all permissible. Had the plaintiff given any specific reason of terminating the tenancy in the second notice and pointed out any defect in the earlier notice, there was some scope for the argument. However, in the absence of any such allegation, it appears that fresh notice was given only with mala fide intention to ignore the unpleasant order.

13. In substance, this suit and the earlier suit are the same and, therefore, the order passed in earlier suit is binding on the plaintiffs and they cannot be permitted to ignore the same order cleverly.

14. It has also been argued by Sri Rajesh Tandon, Senior Advocate for the plaintiffs-respondents Nos. 1 and 2 that earlier order for impleadment of the revisionist as party, was passed on the basis of the concession given by the plaintiffs. The learned counsel has referred to the following observations made in the body of the decision of Civil Revision No. 399 of 1994 :

'..... The learned counsel for the plaintiff opposite party Nos. 1 and 2 has no objection if the application for the impleadment of the applicant-revisionist is allowed. In view of the concession made by the learned counsel for the plaintiffs the application for impleadment moved by Smt. Prem Kumari Sharma is to be allowed.....'

15. No doubt it appears from this portion of the order that the revision was allowed for the reason that it was not opposed, but the same is immaterial. The party cannot ignore an order or a decree because it was passed by his consent. This argument of the learned counsel is, therefore, without merit.

16. Lastly, it has been argued by Sri Rajesh Tandon, Senior Advocate that this order is without jurisdiction and also that there can be no estoppel against law. The suit was pending in the Court of the Judge, Small Causes Court and the revision was filed against an order passed by him before the District Judge. It was not pleaded that this revision was not maintainable. If subsequently. It was found that the valuation of the suit has increased to an amount of more than Rs. 25.000, it cannot be said that this order is without Jurisdiction. The question of jurisdiction was also not raised at the date the revision was filed and decided. The revision was maintainable before the District Judge, Allahabad, alone and not before the High Court. Therefore, the order cannot be said to be without Jurisdiction.

17. As regards the argument of estoppel against the statute, the learned counsel has also referred to following cases:

1. Shri Krishan v. Kurukshetra University, Kurukshetra : AIR1976SC376 . It was observed that the admissions made in Ignorance of legal rights or under duress are not binding.

2. Ram Singh v. Imperial Bank AIR 1928 Lah 902. It was held in this case that there cannot be any estoppel on the point of law going to the jurisdiction of the Court.

3. Smt. Nai Bahu v. Lala Ramnarayan and Ors. : [1978]1SCR723 , In this case, the suit for eviction was decreed on the basis of the compromise. It was found that the statutory ground for eviction does not exist, therefore. It was held that even compromise decree cannot be executed and it will amount to estoppel against the statute.

4. Athmanathaswami Devastha-ram v. K. Gopcdaswami Ayyangar : [1964]3SCR763 . It was held that civil court having no jurisdiction over subject-matter of suit cannot decide any question on merits.

18. There is also no dispute regarding principle of law that there can be no estoppel against law. However, this principle does not apply in the present case and argument of the learned counsel is totally misconceived. In the earlier order in Civil Revision No. 399 of 1994, it was also observed 'In case the impleadment. as prayed for is not allowed, the available rights of the applicant revisionist shall be seriously prejudiced.' This is a finding of fact. The impleadment of parties under Order 1, Rule 10, C.P.C. is not a matter of law. It is only a matter of fact, whether the presence of person is required for effective and complete adjudication of the dispute. By allowing the application earlier, it was found that the presence of the revisionist is necessary for complete and effective adjudication of the suit. This is finding of fact and it cannot be said to be based on admission against law. Therefore, the argument that there can be no estoppel against law is misconceived in the present case.

19. The plaintiffs of this present case cannot be permitted to bye-pass the orders passed in earlier suit, in the manner in which the attempt is being made, in the present case. In similar suit earlier order has already been passed for impleading the revisionist as party in the suit, that order is binding on the plaintiffs. The suit is, therefore, not maintainable without impleading the revisionist as party.

20. Accordingly, the present revision is allowed and the order of the learned trial court is quashed. The trial court is directed to order the plaintiff to implead the present revisionist as party in the suit and thereafter to proceed with the suit in accordance with law.

21. In the circumstances, the parties shall bear their own costs.


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