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B.K. Dutta Vs. Sm. Nita Madan and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2072 of 1981
Judge
Reported inAIR1984Cal228
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 1, Rule 10
AppellantB.K. Dutta
RespondentSm. Nita Madan and anr.
Appellant AdvocateR.C. Deb, ;R.N. Dole and ;Asok Banerjee, Advs.
Respondent AdvocateS.K. Kukherjee and ;A. Chatterjee, Advs.
DispositionAppeal dismissed
Cases ReferredPravat Kumar Misra v. Prafulla Chandra Misra
Excerpt:
- .....munsif allowed the application of one daljit singh madan, the husband of opposite party no. 1, sm. nita madan to be added as party defendant in the said title suit. the said suit was instituted for eviction of sm. nita madan alleging that she was the tenant in respect of premises no. p-216, block j, new alipore. it was alleged by the plaintiff landlord that the said defendant sm. nita madan was a habitual defaulter and she had committed acts of negligence. an application under section 17 (2) of the west bengal premises tenancy act was filed by the said defendant no. 1 for determination of the arrear of rents. the opposite party no. 2, the husband of sm. nita madan, had also made an application for being added as a party under order 1, rule 10 of civil procedure code on the allegation.....
Judgment:
ORDER

G.N. Ray, J.

1. This revisional application under Section 115 of the Civil Procedure Code is directed against Order No. 77 dated May 29, 1981 passed by the learned Munsif, 3rd Court, Alipore in Title Suit No. 317 of 1979. By the impugned order, the learned Munsif allowed the application of one Daljit Singh Madan, the husband of Opposite Party No. 1, Sm. Nita Madan to be added as party defendant in the said Title Suit. The said suit was instituted for eviction of Sm. Nita Madan alleging that she was the tenant in respect of premises No. P-216, Block J, New Alipore. It was alleged by the plaintiff landlord that the said defendant Sm. Nita Madan was a habitual defaulter and she had committed acts of negligence. An application under Section 17 (2) of the West Bengal Premises Tenancy Act was filed by the said defendant No. 1 for determination of the arrear of rents. The Opposite Party No. 2, the husband of Sm. Nita Madan, had also made an application for being added as a party under Order 1, Rule 10 of Civil Procedure Code on the allegation that he was the tenant in respect of the aforesaid premises under the plaintiff-petitioner and because of his illness, his wife was entrusted to make payment of rent and take other steps for the said tenancy. As such, at a later stage, rent receipts were issued in the name of Sm. Nita Madan, the defendant in the said suit. It appears that against an order passed on the said application under Order 1, Rule 10, Civil Procedure Code this Court was moved in revision on an earlier occasion and the matter was sent back to the learned Munsif for read judication in the light of the observation made by this Court. After such remand, the said application has been disposed of by the impugned Order No. 77 dated May 29, 1981. It appears that the learned Munsif has relied on the decision of the Madras High Court reported in AIR 1973 Mad 24wherein it has been held that 'It would be a travesty of justice to hold that a party who is bound by the result of a litigation though not eo nomine a party to the litigation, shall be denied an opportunity to draw the attention of the Court to some step, which seeks to prejudice his interests behind his back. In all such cases, it is the plain duty of the Court to implead the parties concerned either under Order 1, Rule 10 or in exercise of its undoubted, inherent power under Section 151,. Civil P. C.'

2. Mr. Deb, the learned Counsel appearing for the petitioner, has submitted that the tenant Sm. Nita Madan in her written statement has not alleged that she is not the tenant but her husband is the tenant. Accordingly, on the issues involved in the ejectment suit, there is no necessary to implead the husband as a party defendant simply because the husband intends to set up his independent title as a tenant in respect of the disputed premises. Mr. Deb has further contended that the said husband is neither a necessary party nor a proper party for the purpose of adjudication of the disputes between the parties to the suit. In the circumstances, it is not necessary to add a stranger to the suit simply because the stranger intends to set up a title hostile to the title of the original defendant, Sm. Nita Madan. In this connection, ,Mr. Deb has referred to a decision of the Orissa High Court made in the case of Pravat Kumar Misra v. Prafulla Chandra Misra reported in : AIR1977Ori183 . It has been held that in a suit for ejectment of a tenant, a third person claiming to be added as a defendant on the ground that he had title to the suit property should not be added as party because no relief was claimed against him and the decree passed in a suit where he is not party would not be binding on him if he has got an independent title to the property. Mr. Deb has also contended that the decision of the Madras High Court relied on by the learned Munsif can also be distinguished. On the face of the case pleaded by the husband that he is not claiming interest in the tenancy in question through his wife but he has been claiming such tenancy right independently on his own account the husband will not be bound by any decree of eviction passed against the wife if the husband can successfully set up such independent title to the suit property as a tenant. As the husband will not be bound by the result of the litigation, it will not be travesty of justice ifhe is not added as a party in the suit. Onthe contrary, such addition will prejudicethe plaintiff seriously by converting asimple suit for ejectment into a suit fordeclaration of title.

3. After considering the facts and circumstances of the case and the submissions of Mr. Deb, it appears to me that the opposite party No. 2 should not be added as a party defendant. Mr. Deb is justified in his contention that the original tenant Sm. Nita Madan has not contended that she was not the tenant of the suit premises but her husband was the tenant. Accordingly, on the pleadings put forth by the parties there is no occasion to decide an issue as to whether or not the tenancy was created in favour of the said defendant. Sm. Nita Madan or in favour of some other, else Mr. Deb is also justified in his contention that the husband intending to set up an in-dependent right of tenancy on his own account, cannot be bound by the decree of eviction passed against the wife on the footing that wife is the only tenant. Such independent title can be set up by the husband who is a stranger to the suit either in the execution proceeding or in a separate suit for declaration of his title to suit property. The husband in the suit as framed cannot be held to be a necessary party or a proper party and in my view, for any effective adjudication of the dispute involved in the suit, the presence of the husband is not at all necessary. Accordingly, there is no occasion to add the husband either under Order 1, Rule 10 of the Civil Procedure Code or under Section 151 of the Code.

4. It may, however, be noted in this connection that exercise of inherent power under Section 151 is not warranted if the action proposed to be taken under inherent powers can be effectively taken under the express provisions of the Civil Procedure Code. It appears to me that if the opposite party No. 2 is allowed, to be impleaded as a party defendant in the suit for raising the dispute that he has an independent right as a tenant in the disputed premises and he and not his wife is the real tenant under the plaintiff, then a simple suit for ejectment of an admitted tenant will be converted into a title suit.

5. In the aforesaid circumstances, the impugned order is set aside and the Rule is made absolute. The application of the oppose party No. 2 Sri Daljit Singh Madan stands dismissed. There will be no order as to costs.


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