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R. Tulasi Vs. Hamed Bi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revision Petition No. 302 of 1968
Judge
Reported inAIR1972Mad61; (1971)2MLJ249
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rules 10 and 10(2); Madras Cultivating Tenants Protection Act, 1955 - Sections 4
AppellantR. Tulasi
RespondentHamed Bi and ors.
Cases Referred and Urban Improvement Trust v. Rajkumari
Excerpt:
.....defendant in a suit - respondent filed suit for recovery of possession and declaration of title in suit property - defendants in suit resisted it on ground that they were tenants under petitioner - suit must consider whether petitioner or respondent who was plaintiff in suit was real landlord - petitioner was necessary party in suit - revision petition allowed. - - 2. the learned counsel for the petitioner puts forward a twofold contention that the lower court was in error in holding that the petitioner is an unnecessary party to the suit, and that in any event, the lower court was in error in dealing with the merits of the petitioner's case as regards title to the property on the scanty material produced at the stage of the application under order i, rule 10(2). as regards the..........an unnecessary party but also on the ground that he cannot be said to have any valid title to the suit property after considering the document filed by the petitioner along with his application under order i, rule 10(2), civil procedure code. the petitioner is aggrieved against the said order passed by the lower court.2. the learned counsel for the petitioner puts forward a twofold contention that the lower court was in error in holding that the petitioner is an unnecessary party to the suit, and that in any event, the lower court was in error in dealing with the merits of the petitioner's case as regards title to the property on the scanty material produced at the stage of the application under order i, rule 10(2). as regards the second contention the petitioner's contention is well.....
Judgment:
ORDER

1. This revision petition is directed against the order of the lower Court refusing to implead the petitioner herein as a party defendant in O. S. 644 of 1966 filed by the first respondent herein. The first respondent filed the above suit for recovery of possession of certain properties from six persons on the ground that they were her lessees, and that they had not only committed wilful default in the payment of the arrears of rent but also repudiated their tenancies. The said suit was resisted by the said six persons on the ground that they were not the tenants of the plaintiff-first respondent, but that they were the tenants under the petitioner herein. After filling of the written statement by the said six persons the petitioner filed an application to implied himself as a party defendant in the suit and that application has been dismissed by the lower court not only on the ground that he is an unnecessary party but also on the ground that he cannot be said to have any valid title to the suit property after considering the document filed by the petitioner along with his application under Order I, Rule 10(2), Civil Procedure Code. The petitioner is aggrieved against the said order passed by the lower Court.

2. The learned counsel for the petitioner puts forward a twofold contention that the lower court was in error in holding that the petitioner is an unnecessary party to the suit, and that in any event, the lower court was in error in dealing with the merits of the petitioner's case as regards title to the property on the scanty material produced at the stage of the application under Order I, Rule 10(2). As regards the second contention the petitioner's contention is well founded. The lower court has no justification to go into the merits of the claim of title put forward by the petitioner to the suit property. The learned counsel for the respondent also fairly concedes that the lower court may not be justified in going into the merits of the petitioner's claim for title at this stage. Hence the only question that arises in this revision is whether the petitioner is a proper or a necessary party to the suit.

3. Before dealing with the principle involved in a matter of this kind, certain facts relating to the present suit have to be noted. It appears that the first respondent went before the Rent Controller for eviction of the said six persons from the premises in question, and before the Rent Controller they contended that she was neither the owner of the property nor was she their landlady, and that the petitioner herein was the landlord in respect of the properties in their occupation. The Rent Controller held that there was a bona fide dispute as to title to the property, and therefore directed the parties to go before a civil court. The relief claimed in the suit by the first respondent herein is not only recovery of possession from the alleged tenants but also a declaration of her title to the suit properties. From the reliefs claimed in the plaint it is seen that the suit is not based on mere tenacy. In effect the first respondent wants to have her title declared in the presence of her alleged tenants who are denying her title, and not in the presence of the petitioner who is really her rival claimant on title. On these facts, the learned Counsel for the petitioner contends that the suit being really one for declaration which the first respondent may obtain against the alleged tenants will be quite ineffective, for the petitioner can always, in exercise of his right of ownership, proceed against the defendants who are her tenants for recovery of possession, and that to get an effective decree the first respondent must face the petitioner as a defendant in her suit.

The petitioner's learned counsel relies on the decision in Razia Begum v. Anwar Begum, : [1959]1SCR1111 , wherein it has been held that in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject matter of the litigation, and that where the subject matter of a litigation, and that where the subject matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy. If the principles laid down in that case are applied to the facts of this case the petitioner herein, who claims to have a direct and present interest in the suit property in respect of which the first respondent seeks a declaration of title, is entitled to implead himself as a party in the suit. The above decision of the Supreme Court has been followed in Daitari Prasad v. Umakanta, AIR 1971 Ori 44, where Misra C. J. had expressed the view that the expression 'question involved in the suit' in Order I, Rule 10(2) need not be confined only to questions as between the parties to the litigation, that third parties are also entitled to be impleaded under the rule, as parties to the suit provided (I) there is a right to some relief against the party not jointed and (ii) the presence of the absentee party is necessary in order to enable the Court to effectually adjudicate upon and settle all questions involved in the suit, and that at times triangular duel may also be comprehended under Order 1, Rule 10. It was also held therein that the question for consideration in such cases is to see (1) whether the title set up by the proposed parties should be gone into for effectually and completely adjudicating upon the settling all questions of title involved in the suit, (2) if the interveners are not added as defendants in the suit, whether the decree passed by the court in favour of the plaintiff would be rendered infructuous as the proposed parties claim possession in the land also, and the decree will become ultimately inexecutable and (3) whether when the question of title is gone into, no confusion would be introduced in allowing the proposed parties to get their title canvassed, in the same litigation.

The case in Amon v. Raphael Tuck and Sons, 1956 1 All ER 273 is also in point. In that case the plaintiff alleged that he was the inventor of a new design of adhesive dispenser in the shape of a pen known as the Fastic pen, that he disclosed the 'know how' of the pen to the defendants during certain negotiations for marketing the pen, which, however, broke down, that there was an implied contract that the defendants would treat as confidential the information given to them during the negotiations; and that the defendants have made use of the information by manufacturing an adhensive dispenser called the Stixit pen which contained three distinctive features of the pen designed by the plaintiff and the plaintiff claimed an injunction restraining the defendants from using the information and for damages. In that suit there was an intervener who alleged that he is the inventor of the Stixit pen and that the defendants were under contractual obligation to him to manufacture and distribute the same in certain territories. On the question whether the intervener could be allowed to come into the suit, Delvin J. held that the test whether the court had jurisdiction to add as a defendant a person whom the plaintiff did not wish to sue, was whether the order for which the plaintiff was asking in the action might directly affect the intervener by curtailing the enjoyment of his legal rights and that as the plaintiff claimed that he was the owner while the intervener alleged that he was the owner of the right, both the disputes should be tried at the same time. On the facts of this case, inasmuch as the plaintiff claims a declaration of her title, no decree can be passed in her favour without affecting the rights of the petitioner who also claims title to the same property. In the absence of the petitioner, any decree which the plaintiff may obtain against the defendants, would ultimately become unexecutable as the petitioner would not be bound by the decree unless he is impleaded as a party. The petitioner has, in my view, a direct and a present interest in the subject matter of the action and that would entitle him to an order that he be joined as a defendant, as his claim of title cannot be effectually put forward by the defendants in his absence.

4. The learned counsel for the respondent, however, relies on the decision in Sri Mahant Prayag Doss v. Board of Commr., H. R. E. Madras : AIR1926Mad836 wherein considerations which had to be taken into account while dealing with an application under Order 1, Rule 10 had been elaborately set out. That decision does not throw much light on the question arising on the facts of this case.

5. The learned counsel then relies on the decisions in Subramania Desika v. Ananthakrishnaswami Naidu : AIR1932Mad688 , K. T. Seshadri Iyengar v. A. E. Govindarajulu Chetti. (1963) 2 MLJ 251 and Urban Improvement Trust v. Rajkumari, and contends that in suits based on tenancy the question of title is foreign, and that it is not necessary to implead the persons claiming adverse title to the plaintiff's as party defendant in the suit. In : AIR1932Mad688 it was held that in an ejectment suit on the basis of a lease deed, prima facie, persons claiming adverse rights to the plaintiff's title should not be made parties, in the absence of special circumstances. But what are the special circumstances which are contemplated by the learned Judge in that case have not been set out therein. 1963 2 MLJ 251 was a case in which a third party sought to be impleaded as a party in proceedings for eviction initiated under Section 4 of the Madras Cultivating Tenants Protection Act, 1955 and Ramchandra Iyer C. J. held that even though the tenants had contended that a third party was the owner of the lands to whom they had been executing muchilikas the revenue court cannot implead such third party as a party to the proceedings, as the Revenue Court has no jurisdiction to adjudicate the question as to who is the owner of the property. The principle laid down in that decision cannot be applied to the facts of this case where the court has jurisdiction to decide the question of title especially when the plaintiff has sought a declaration of title as a substantial relief in the suit.

was also a suit in ejectment and in that suit a third party claiming title to the properties sought to be impleaded as a party and the court held that the question of addition of parties under Order I, Rule 10(2) is generally one of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case subject to the provisions of Order 1 R. 1 & 0. 2 R. 3, and that though 0. 1, Rule 10(2) is intended to prevent multiplicity of suits and conflict of decisions, it is not the only consideration to be taken into account in impleading parties. In that case the court divided the cases of impleading parties into three categories; (1) where the third party is shown to be a necessary party; (2) the third party is not even a proper party and (3) where the third party is a proper party; and expressed the view that the question whether the third party claiming title to the property in a suit for ejectment is a proper party or not, would have to be decided upon the nature of the plaintiff's title.

Having regard to the facts in this case, I am not inclined to agree with the learned counsel for the respondent that the plaintiff's suit which is one on tenancy cannot be converted into a suit on title by bringing I the petitioner herein as a party defendant; for one thing that the suit cannot be said to be purely as one on tenancy as the plaintiff has specifically sought a relief of declaration of title in view of the earlier order of the Rent Controller directing the parties to go to a civil court. Secondly, the defence taken by the defendants in the suit is that they are tenants under the petitioner and, in view of that defence, the court has to naturally consider whether the plaintiff is the landlady or whether the petitioner is that landlord. I do not see how by inducting the petitioner as a party defendant to the suit, there will be any question of converting a simple suit of tenancy into one of title, and any controversy beyond the scope of the suit would be introduced in the case as, after his joinder, the main evidence in the suit and the main enquiry will remain the same as before his addition. In my view, the court would be exercising its discretion properly to implead him as a party defendant treating him as a proper party to the suit. The lower court is in error in holding that the petitioner is not a proper party to the suit. I therefore set aside the order of the lower court and implead the petitioner as one of the defendants in the suit.

6. In the result, the civil revision petition is allowed but, in the circumstances, no costs.

7. Petition Allowed.


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