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Kamlesh Kumar Vs. Shiv Ratan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 15 of 1981
Judge
Reported in1981WLN369
AppellantKamlesh Kumar
RespondentShiv Ratan and ors.
Cases ReferredRazia Begum v. Anwar Begum
Excerpt:
.....and civil procedure code--section 115 & order 1 rule 10(2) parties--court not impleading sub-tenant as party to ejectment suit--held, magistrate has not failed to exercise jurisdiction and revision is not maintainable.;an order passed in exereise of the court's discretion under order 1, rule 10. cpc is not ordinarily revisable under section 115, cpc. it cannot be said that the learned additional munsif has failed to exercise jurisdiction when he declined to add the petitioner as a party to the suit.;(b) rajasthan premises (control of rent & eviction) act, 1950 - sections 3(vii) & 13(1) and civil procedure code--order 1 rule 10(2)--ejectment suit--sub-tenant cannot be impleaded as party.;the petitioner as sub-tenant has no right to be impleaded as a party in the suit and his..........does not mean or imply that the sub-lease is entitled to on his own to be added as a party in the eviction suit against the lessee in his own right when he is not made a party and on his case he has on independent right in respect of his tenancy and is thus not bound by any decree as may be obtained by the landlord in the eviction suit against the lessee or when the decree was obtained in fraud of the sub-lessee,in view of what has been observed by the learned judes of the calcutta high court, the petition comes to this that under the law, the order for ejectment passed against the tenant is binding on the sub-tenant as sub-tenancy was created by him. nonetheless it is open to the sub-tenant to take steps to resist the decree on the grounds that he has acquired the statutory right or.....
Judgment:

S.K. Mal Lodha, J.

1. This rule is directed against the order dated December 12, 1980 of the Additional Munsif No. 1, Jodhpur by which he dismissed the petitioner's application filed under Order 1 Rule 10, CPC.

2. The plaintiff non-petitioner No. 1, who is the landlord, instituted a suit for arrears of rent and ejectment against defendant non-petitioner No. 2, who is the tenant. The ejectment was sought in respect of shop No. 5 on various grounds. On February 26, 1980, an application was moved on behalf of the petitioner stating that he is a Sub-tenant and for completely and affect-ually determining the question involved in the suit, his presence is necessary and as such, being a necessary party, he should be impleaded as a party to the suit. The material averments, contained in para 2 of the application, are as under. The learned Additional Munsif held that the petitioner cannot be impleaded as a party against the wishes of the plaintiff and dismissed the petitioner's application under Order 1, Rule 10 CPC. The petitioner got the Rule issued praying that his application should be allowed and he should be impleaded as a party to the suit. On behalf of non-petitioner No. 1, Mr. G.R. Singhvi has appeared. He has produced the copy of the application under Order 1, Rule 10, CPC, which has been placed on record.

3. Appearing for the petitioner, Mr. M.C. Bhandari on the basis of the decision reported in Section Asia Industries v. Sarup Singh AIR 1966 SC 346 strenuously contended that the petitioner is a proper party in the suit and the learned Additional Munsif failed to exercise jurisdiction in declining him (petitioner) to be addeded as a party in the suit. On the other hand, Mr. Singhvi, vehemently urged that the petitioner subtenant has no right to be added as a party to the suit. He cited Jagat Enterprise v. Anup Kumar AIR 1977 Cal 209 and distinguished Section Asia Industries's case AIR 1966 SC 346.

4. The question that, therefore, arises for determination is whether the petitioner is a proper party to the suit and so he should be impleaded as a party even against the wishes of the plaintiff.

5. Order 1. Rule 10(2), CPC provides for addition of necessary and proper parties. Necessary parties are those who sought to have been joined as parties and proper parties are those without whose presence, the questions in the suit cannot be completely and effectually adjudicated upon. Jagat Narayan, J. as he then was, observed as follows in Nazhar Hussain v. Shaft Mohammed and Ors. AIR 1969 WLN 316.

The plaintiff being generally dominus litus, he can't be compelled to fight against some other litigant not of his own choice unless such a process is required by a positive rule of law. Order 1, rule 10 AIR 1977 Cal 209 is applicable to two classes of cases only. One class is where he ought to have been joined as a plaintiff or a defendant and is not so joined. That is a case of a necessary party. The other class is where without his presence the question in the suit cannot be effectually and completely decided.

The court has no power to join a person as a party who claims to belong to this class unless it is prima facie satisfied about the plausibility of his claim. Rule 10(2) cannot be read as requiring all persons who choose to lay claim to any sort of right, title or interest in respect of any portion of the subject matter of a suit to be made a party.

6. Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) (for short 'the Act' hereafter) deals with eviction of tenants. Under section 3(vii) of the Act, the 'tenant' has been defined as under:

'tenant' means--

(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and

(b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son daugher and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes ordinarily carrying on business with him in such premises as member of his family upto his death.

7. If one or more grounds as specified in Section 13(1) of the Act are established, the landlord is entitled to evict the tenant. The landlord can evict a tenant on proof of assigning subletting or otherwise parting with the possession of whole or any part of the premises without the permission of the landlord under Section 13(l)(e) of the Act. The landlord is to establish that the tenant has assigned, sublet or otherwise parted with possession without the consent of the landlord. Under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that person and is executable against such person whether or not he was or was not a party to the suit. The non-joinder of such a person does not render the decree any the less binding on him. In Jagat N. Enterprises's case AIR 1977 Cal 209, it was observed as under:

It is thus, appears to us that though under the law the decree for permission against the lessee is binding on the sub-lease created by him, the sub-lessee is entitled to take steps to resist the decree on the above grounds as may be available to him. This right does not mean or imply that the sub-lease is entitled to on his own to be added as a party in the eviction suit against the lessee in his own right when he is not made a party and on his case he has on independent right in respect of his tenancy and is thus not bound by any decree as may be obtained by the landlord in the eviction suit against the lessee or when the decree was obtained in fraud of the sub-lessee,

In view of what has been observed by the learned Judes of the Calcutta High Court, the petition comes to this that under the law, the order for ejectment passed against the tenant is binding on the sub-tenant as sub-tenancy was created by him. Nonetheless it is open to the sub-tenant to take steps to resist the decree on the grounds that he has acquired the statutory right or protection which he could assert against the tenant, or that the decree was obtained by fraud or collusion.

8. In Section Asia Industries case AIR 1966 SC 346 Section 14(1), Proviso (b) and Sections 18 & 25 of the Delhi Rent Control Act, 1958 came up for examination.

Section 25 of the aforesaid Act reads as under:

25. Vacant possession to landlord--

Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of sush premises the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by eviction there from:

Provided that nothing in this section shall apply to any person who has an independent title to such premises.

Let us notice the facts in Section Asia Indnstries case AIR 1966 SC 346. In that case, the respondent's predecessor leased the premises to Allien Gerry and Co., which company transferred the lease to the appellant. On the ground that the transfer was made without the consent of the landlord, the respondent made an application under Section 14(1)(b) of the Delhi Rent Control Act, 1958 to the Controllor against the tenant company as also the appellant for an order for recovery of possession of the premises on the ground that the transfer of lease was without the consent of the landlord. In the course of proceedings, the tenant company went into liquidation and was subsequently dissolved and its name was struck off from the proceedings. The Controller, made an order in favour of the landlord for recovery of possession of the premises and this order was affirmed ultimately by the High Court. On appeal to the Supreme Court, it was held by the majority judgment that the order for recovery of possession was not only confined to tenant but the order would be binding on all persons in actual possession of the premises in view of Section 25 of the aforesaid Delhi Act. It was observed as under:

It would not, therefore, support on argument that it was not intended that an order for recovery of possession could be made under Section 14 against an assignee or a Sub-tenant. On the other hand, it seems to us that to an application under CI. (b) of the proviso to Sub-section (1) of Section 14 an assignee or sub-tenant as the case maybe should be a proper party. Under this provision an ejectment order can be made only when the assignment or sub-letting was without the consent of the landlord. If it was with such consent the assignee or the sub-tenant would be protected by the Act. An assignee or a sub-tenant is, therefore, interested in showing that there was the requisite consent. They should hence be entitled to be made parties to the proceedings. Otherwise, if under Section 25 an eviction order obtained against the direct tenant is binding on them, they would be liable to be condemned without a hearing. It is no argument against this view that the direct tenant would protect them, for they cannot be made to depend on him for the protection of their rights. The direct tenant may be negligent or incompetent in his defence; he may be even collude with the lanlord or he may just not bother. If the assignee or the subtenant is thus entitled to be heard to oppose the order for eviction that would be another reason for saying that an order for eviction could be made against them also; if they could oppose the making of the order, it would be unnatural to say that the order could not be made against them. In what I have said in this paragraph I do not wish to be understood as holding that in view of Section 25 an order for eviction against a tenant is in fact binding on his assignee or sub-tenant. Such a decision is not necessary for this case. I wish, however, to point out that if Section 25 does not make the ejectment order so binding, the appellant cannot resort to it for any assistance.

Having read Section Asia Industries's case AIR 1966 SC 346 with requisite care and attention, I am unable to infer from it the broad proposition that in all actions for recovery of possession between the landlord and the tenunt, the sub-tenant is a necessary party their for. The observations made therein were in the context of the provisions of the Delhi Rent Control Act, 1958 and the sub-lessee's case that he was not a proper party in the proceeding in absence of the tenant was not accepted while the landlord impleaded him as an illegal assignee. In my opinion, the contention of the learned counsel for the petitioner that the petitioner is a proper party in view of the decision in Section Asia Industries's case AIR 1966 SC 346, cannot be accepted. In the present suit for eviction of the tenant, the petitioner, for the reasons already indicated, is not entitled to be a, impleaded as a party in the suit.

9. It was observed in Razia Begum v. Anwar Begum AIR 1950 SC 886 as under:

That the question of addition of parties under Rule 18 of Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in the some cases, it may raise controversies as to the power of the court, in contradiction to the power of the court, in contradiction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code.

An order passed in exercise of the court's discretion under Order 1, Rule 10 CPC is not ordinarily reviseable under Section 115, CPC. It cannot be said that the learned Additional Munsif has failed to exercise jurisdiction when he decline to add the petitioner as a party to the suit.

10. The result of the above discussion is that the petitioner as subtenant has no right to be impleaded as a parly in the suit and his application was rightly dismissed. The Rule, accordingly, fails and is hereby discharged. In the circumstances of the case, there will be no order as to costs.


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