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Kewalkant Vs. V.K. Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 402 of 1971
Judge
Reported inILR1972Delhi357
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10; Delhi Rent Control Act, 1958 - Sections 17
AppellantKewalkant
RespondentV.K. Gupta
Advocates: K.N. Topa and; S.L. Bhatia, Advs
Cases ReferredMotilal v. Vasant and
Excerpt:
civil p.c. - 0.1, rule 10--sub-tenant in an eviction proceedings--not a necessary but proper party, when he applies to intervene--delhi rent control act (1958), section 17.; ordinarily the estate of a sub-tenant is carved out of the estate of a tenant and the same falls with the tenant except under certain exceptional circumstances provided by law. thereforee, it cannot be said that a sub-tenant is a necessary party and the suit or proceedings for eviction instituted against the tenant would fail, unless he is imp leaded. but where the landlord in fact wants to dispossess a sub-tenant and urges that he does not have any legal right to remain in possession, the contrary wishes of the landlord are not material and the sub-tenant who applies must be imp leaded and heard against the..........statement contesting the grounds of eviction and also urged that kamal kant was a necessary and proper party to the eviction proceedings.(3) during the pendency of the eviction proceedings kamal kant, the alleged sub-tenant, filed a petition dated 17th july, 1971, before the addl. controller under order i rule 10 and section 151 of the code of civil procedure in which he alleged that he was a necessary and proper party to the proceedings and be imp leaded as such since one of the grounds of eviction was subletting a part of the premises to the petitioner. the landlord in reply opposed the application and urged that no notice of creation of sub-tenancy had been served on the landlord in accordance with the law and in the absence of such a notice, the petitioner was not a necessary or a.....
Judgment:

B.C. Misra, J.

(1) This revision petition has been filed under section 115 of the Code of Civil Procedure by Kama) Kant, the alleged subtenant and is directed against the order of the Additional Controller, Delhi, dated 23rd July, 1971 by which he has rejected the application of the petitioner for being imp leaded as a party in the eviction proceedings instituted by the landlord Vijay Kurnar Gupta (respondent No. 1 herein) against Lajpat Rai.Mehra, the principal tenant as respondent .No. 2 in this revision.

(2) The facts giving rise to this revision are that Vijay Kumar Gupta landlord-respondent No. 1 herein instituted a petition for eviction on 21st December, 1970 against Lajpat Rai, tenant on the allegations that the tenant had unauthorisedly sublet, assigned or otherwise parted with the possession of a part of the rented premises lo Kamal Kant, petitioner herein, after 9th June, 1952 without obtaining the consent in writing of the landlord or his predecessor-in-interest, There are other grounds of eviction also mentioned in the petition with which we are at the moment not concerned in this revision. The tenant filed a written statement contesting the grounds of eviction and also urged that Kamal Kant was a necessary and proper party to the eviction proceedings.

(3) During the pendency of the eviction proceedings Kamal Kant, the alleged sub-tenant, filed a petition dated 17th July, 1971, before the Addl. Controller under order I Rule 10 and section 151 of the Code of Civil Procedure in which he alleged that he was a necessary and proper party to the proceedings and be imp leaded as such since one of the grounds of eviction was subletting a part of the premises to the petitioner. The landlord in reply opposed the application and urged that no notice of creation of sub-tenancy had been served on the landlord in accordance with the law and in the absence of such a notice, the petitioner was not a necessary or a proper party. This application has been disposed of by the Controller by the impugned order and he has relied upon an authority of this Court reported as Tara Chand v. MarriumBi& others (WO Rent Control Reporter, page 438)1 to support the proposition that a sub-tenant who has not given a notice required by section 17 of the Rent Act was neither a necessary nor a proper party and that the petitioner has not alleged in his application that such a notice had been given to the landlord and as a result, he dismissed the petition.

(4) The learned counsel for the petitioner has, in support of the revision, urged that the petitioner was at all events a proper party as he was admittedly in possession of a part of the premises from which the landlord was seeking to dispossess him along with the tenant. He has, further urged that the merits and validity of his .claim would be pleaded by him in this written statement and substantiated by evidence in the trial, but his application for being imp leaded as a party could not be thrown out and the Controller below has acted with material irregularity in exercise of his jurisdiction. in reply the learned counsel for the respondent-landlord has reiterated his contention raised before the Controller and he has strongly urged that a sub-tenant acquires rights under the provisions of the Delhi Rent Control Act only if subletting has been made to him with the consent in writing of the landlord as provided by clause (b) of the proviso to sub-section I of section 14 of the Delhi Rent Control Act or where he has given a notice under section 17 of the Act or he claims independent rights under section 25 of the Act and he has relied upon the authority of Deshpande, J. which has been mentioned in the impugned order.

(5) I have carefully considered the respective submissions of the counsel for the parlies. Ordinarily the estate of a sub-tenant is carved out of the estate of a tenant and the same falls with the tenant except under certain exceptional circumstances provided by law. thereforee. it cannot be said that a sub-tenant is a necessary party and the suit of proceedings for eviction instituted against the tenant would fail, unless he is imp leaded. The Supreme Court in Rupchand Gupta v. Raghuvanshi (Private) Ltd. and another. : [1964]7SCR760 observed that where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit without impleading the said lessee as a party to the suit, the decree in such a suit which bind the sub-lessee and although this may act harshly on the sub-lessee, it is a position well understood and the law allows it. In that case the sub-tenant challenged the decree on the ground of collusion bill he failed to establish the same and so lost the suit. Mr. Justice Deshpande, in Tara Chand . Mst. Marrium Bi and anothers, 1970 R C R 438(i) has considered the effect of absence of service of a notice under section 17 of the Act and his lordship has held that an order for eviction which has been passed without impleading the sub-tenant (who had not served a notice under section 17 of the Act and who had consequently not acquired any rights under section 18 of the Act) was binding on the sub-tenant.

(6) The position in this case is, however, different. I am not called upon to determine the legality or validity of the claim which the sub-tenant may put forward in the case either against an order for eviction which is sought against the tenant or to protect his own rights such as may be available under the law. The question arising for consideration is whether the tenant is a proper party within the meaning of Order I rule 10 of the Code of Civil Procedure which by virtue of section 37 of the Rent Act along with the statutory Rule 23 applies to proceedings before the Controller.

(7) Order I Rule 10 of the Code of Civil Procedure deals with two kind of cases, one relating to necessary parties and the other what is known as proper parties. 'Necessary parties are those in whose absence the legal proceedings would, in spite of the provisions of order I Rule, 9, fail. On the other hand, the proper parties are those whose presence is necessary to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the case. There are many authorities construing the provision of law. I shall, however, rely on one which has been cited by counsel for the respondent. It is Thakar Hari Ram v. Central Government A. I. R. 1941, Lah 120(3) In this case the division bench of the High Court consisting of Tek Chand and Dalip Singh JJ. observed as follows :-

'THE distinction between a 'necessary' and a 'proper' party to an action, appeal or other proceedings, is, of course. well recognized. A 'Necessary' party is one, whose presence on the record is enjoined by law, or in whose absence no effective, decision can at all be given. Without such party the action, appeal or proceeding is not properly constituted and is liable to be dismissed on this ground alone. A 'proper' party, on the other hand, is one whose presence is not essential for the constitution of the suit, appeal or proceeding, but whom it may nevertheless be desirable, or even necessary, to have before the Court in order to properly, or completely and adequately, adjudicate or) the matter involved.'

The Bench in support of this observation quoted Pomeroy on Remedies as follows :-

'NECESSARY parties defendants are those without whom no decree at all can be rendered : proper parties defendants are those whose presence renders the decree more effectual : and all the proper parties are those by whose presence the decree becomes a complete determination of all the questions which can arise, and of all the rights which are connected with the subject matter of the controversy.'

(8) Applying the said principle it would follow that a sub-tenant is a proper party to the proceedings. The reason is that he is in possession of the whole or part of the premises and is vitally interested in the result of the suit or legal proceedings and the opposite party in reality and substance wants to dispossess him from the said promises in an action brought against the tenant. It is also necessary to hold him as a proper party for the reason that if he possesses any rights within the frame work of the Rent Control Act, the same should be finally adjudicated and decided either in his favor or against him, as the case may be, and they be not left to be determined in the execution department either under section 25 of the Rent Act or other provisions of the law. In my observations I derive great support from the authority of the Supreme Court, South Asia Industries Private Ltd. v. S. Sarup Singh and others : [1965]3SCR829 , where Sarkar J. delivering judgment of the majority of the Court observed in paragraph 9 of the report that to an application under clause (b) of the Proviso to sub-section I of section 14, an assignee or sub-tenant, as the case may be, should be a proper party ; under this provision an ejectment order can be made only when the assignment or subletting was without the consent of the landlord and if it was with such consent the assignee or sub-tenant would be protected by the Act and, thereforee, he was interested in showing that there was the requisite consent; they should, thereforee, be held entitled to be made parties to the proceedings; otherwise if under section 25 eviction order obtained against the direct tenant is binding on the sub-tenants, they would be liable to be condemned without a hearing. The Court further' observed that if the assignee or sub-tenant is entitled to be heard to oppose the order for eviction, that would be another reason for saying that on order for eviction should be made against them also and if they should oppose the making of the order it would be unnatural to say that the order should not be made against them.

(9) P. N. Khanna, J. in Shri Ved Parkash v. Shri Rashid and another 1971 All Ind R C J263 has made some obiter dicta which are useful for resolving the controversy before me. In para 7 of the report his Lordship observed that the sub-tenant had not given a notice under section 17 of the Act and so he never became a direct tenant of the landlord and it was, thereforee, not necessary for him to be imp leaded as a party in the eviction proceeding. The learned Judge further observed 'the sub-tenant could have moved the Controller for being imp leaded, if he had anything to urge before him, but that does not mean that the landlord was obliged to implead the sub-tenant.' The learned counsel for the respondent has cited 3 other authorities. Lakshmianiva v. Someswar Rao & another A.I.R. 1953 Hyd 170(c), Mofilal v. Vasant and another A.I.R. 1956 Hyd 172. and Shifladin and others v. Board of Revenue : AIR1963All549 . In the first of the aforesaid authorities it was observed in paragraph 22 of the report that the expression proper party means a party who may be interested in the result of the suit and who may have a right to seek the assistance of the court in coming to a decision on the point at issue. The second case Motilal v. Vasant and another refers to the provisions of Order 34 Rule 1 and deals with the case of a mortgage suit where there are specific provisions and the same is not relevant for purposes of this case. In the third authority the High Court of Allahabad was considering a case of U.P. Zamindari Abolition Act and their Lord ships observed that after the enforcement of the Zamindari Abolition Act, the Zamindar whose rights by operation of law had been extinguished was neither a necessary nor a proper party in a suit under the tenancy Act. The court also observed that proper parties may be imp leaded to avoid future litigation.

(10) An examination of the provisions of the Rent Act shows that impleading of a sub-tenant in the eviction proceedings is not prohibited. Sections 17 and 14 make it obligatory on the landlord to implead a sub-tenant who has given the prescribed notice, but it is not laid down that it would be illegal to implead a sub-tenant who has not given such notice. Impleading is thereforee permissible and optional in such cases. The result is that if a person in actual possession of the property is sought to be evicted on the ground of alleged sub-tenancy or otherwise, and he desires to intervene in the eviction proceedings and show cause against eviction, he is a very proper (though not necessary) party and he must, on his application, be imp leaded. It is no consolation to the alleged sub-tenant to be told that his obligation consists only in quietly vacating the premises in execution of order passed against another person (the tenant) and that he must be condemned to dispossession without hearing. The right to be heard is distinct from the validity of the cause shown upon hearing and it is too valuable a right to be brushed aside lightly on a technical grounds. Normally a decree or order of the court binds. only the parties to the proceedings and the persons not before it. are not concerned or affected and in those cases, the plaintiff's contention that he does not want to fight another person or to disturb his rights or possession may be respected. But where the landlord in fact wants to dispossess a sub-tenant and urges that he does not have any legal right to remain in possession, the contrary wishes of the landlord are not material and the sub-tenant who applies must be imp leaded and heard against the contentions of the landlord. The illegality of the possession of the sub-tenant contended by the landlord cannot be presumed to be correct and the same requires to be established on record. thereforee, the sub-tenant may, upon being imp leaded, show any defense open to him. For example, he may prefer to show that he is an old lawful sub-tenant, and prescribed notice was given or was not necessary to be served, as it had already been given under a previous law like section 4(l)(c), Rent Act of 1947 or section 6(3)(c) of Act of 1952 or since the landlord otherwise possessed actual notice of sub-tenancy or that any valid law requiring him to give notice was directory and not mandatory, or it did not apply to his case. The correctness of this defense is at the moment not relevant but he must at all events be heard if he applies to be imp leaded. This course would be in consonance with the interests of justice, as it would avoid cases of fraud or collusion on the part of the landlord and real (or sometimes fictitious) tenant to oust the sub-tenant and it would also shorten litigation and obviate subsequent enquiry at the instance of the subtenant in execution department or in another suit as the case may be.

(11) I am, thereforee, of the view that a subtenant or other person who is in actual possession of the property and is really sought to be dispossessed by the landlord by the action is a proper party, who is vitally interested in the result of the eviction proceedings and his presence is necessary for complete and effectual adjudication of real dispute between the parties. Hence he must, if he applies for the purpose during the pendancy of proceedings, be imp leaded as a party, in accordance with Order I, Rule 10 of the Code of Civil procedure. The revision, as a result succeeds and the impugned order is set aside. The application of the petitioner herein is allowed and he is directed to be imp leaded as a respondent No. 2 in the eviction proceedings. The parties are directed to appear before the Controller today. There will be no order as to costs.


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