M/S Rajputana Fertilizers ... vs Dr. Bharat Kumar Gupta And 2 Ors.
2013 Latest Caselaw 1537 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
(Judgment reserved on 23.4.2013 )
 
   (Judgment delivered on 01.5.2013)
 

 
Court No. - 4
 

 
Case :- CIVIL REVISION No. - 193 of 2013
 

 
Petitioner :- M/S Rajputana Fertilizers Limited
 
Respondent :- Dr. Bharat Kumar Gupta And 2 Ors.
 
Petitioner Counsel :- S.D. Singh
 
Respondent Counsel :- Chandra Kr. Rai
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard Sri S.D. Singh, learned counsel for the applicant and Sri C.K. Rai, learned counsel for plaintiff respondent no.1 who stated that as pure legal question was involved hence revision might finally be decided.

This revision is directed against order dated 29.1.2013 passed by Additional Civil Judge (S.D.)/J.S.C.C. Ghaziabad in O.S. no.11 of 1996, Dr. Bharat Kumar Gupta Vs. Modi Sugar Mills and on other. Through the impugned order application of the applicant to be impleaded as one of the defendants in the suit on the ground that B.I.F.R. had transferred the property in dispute to it has been rejected. The suit has been filed by plaintiff respondent no.1, Dr. Bharat Kumar Gupta against respondent nos.2 and 3 Modi Sugar Mills and Modi spinning and weaving mills for their eviction . In has been stated in the plaint that defendant no.1 was granted lease of the property in dispute admeasuring 21 bigha 12 biswa for 99 years through lease deed dated 1.10.1945 and that defendant no.1 had sub let the property in dispute to defendant no.2. The court below held that applicant was sub tenant and in a suit for eviction filed by the landlord against the tenant, sub tenant was not necessary party. It was also held that application was filed very late.

In the plaint it was alleged that lease was granted in the year 1945 to defendant no.1 who had sub let the same to defendant no.2.

It is not a case of sub tenancy created by the tenant. It is a case of transfer of lease hold right by operation of law and under order of court. Ordinarily a sub tenant inducted by the tenant is not a necessary party in a suit for eviction by landlord against the chief tenant for the reason that if the right of the chief tenant comes to an end sub tenancy also automatically comes to an end. However, if the sub tenancy is not illegal, it is of the entire lease property and the ground of eviction is such which may be defended by the sub tenant or which may be remedied by the sub tenant then sub tenant is proper party in the suit. To illustrate if under the lease deed eviction is permissible only on the ground of default in payment of rent and eviction is sought under that clause, tenant is entitled to the benefit of Section 114 T.P. Act according to which he may save his eviction by depositing the entire arrears of rent and cost etc. on the first date of hearing. Such deposit may be made by the legal sub tenant also. Similarly, if under the lease deed eviction is not provided until expiry of period of lease, valid sub tenant particularly of the entire property can argue the said point in the suit. Thirdly, if under the lease deed eviction is permissible on certain grounds/defaults, a sub lessee particularly of the entire lease property can argue that no condition of the lease deed has been violated. Accordingly, it can not be said that under no circumstances a legal sub lessee particularly if the sub lease is of the entire property is neither a necessary nor proper party in a suit for eviction by the landlord against chief tenant.

At this stage reference may be made to the Supreme Court authority reported in Shyam Babu Vs. D.J. AIR 1984 S.C. 1399 wherein it has been held that under U.P. Rent Control Act (U.P. Act no.13 of 1972) comparative hardship of a sub tenant who has been inducted with the consent of the landlord is to be considered in Release application filed by landlord under Section 21 of the Act.

The question of impleadment of a transferree pendente lite is squarely covered by Section 52 T.P. Act order I Rule 10 C.P.C. and order XXII Rule 10 C.P.C. Section 52 of Transfer of Property Act states that if a suit is pending in respect of a property then "property can not be transferred or otherwise dealt with by any party to the suit". In the instant case defendants of the suit have not transferred the property to the applicant. It is the order of B.I.F.R. under an Act of the Parliament through which applicant has acquired lease hold rights Normally Section 52 T.P. Act does not apply to in voluntary court sales.

Even if Section 52 of T.P. Act applies under certain circumstances transferree pendente lite may be permitted to be impleaded in the suit. In this regard reference may be made to an authority of the Supreme Court cited by the learned counsel for the respondent himself reported in Vidur Impex & Traders Pvt. Ltd. Vs. Tosh Apartments Pvt. Ltd. AIR 2012 S.C. 2925. In the said authority after discussing almost all the earlier authorities of the Supreme Court on the point it has been held in para 36 as under :-

"Though there is apparent conflict in the observations made in some of the aforementioned judgments ................"

In any case even if it is held that Section 52 T.P. Act applies still the question of impleadment of party in case of in voluntary, court sales will have to be much more liberally construed then in case of voluntary transfer by the defendant.

Modi Spinning & Weaving Mills, defendant no.2 became sick within the meaning of that term under Sick Industrial Company (Special Provisions Act) 1985 (hereinafter referred to as SICA) The matter was referred to the B.I.F.R. in the year 1989. The B.I.F.R. framed scheme of rehabilitation on 5.6.2000. The scheme framed by B.I.F.R. on 5.6.2000 was subsequently recalled as it could not work. Thereafter on 25.3.2004 B.I.F.R. framed another rehabilitation scheme. Under that scheme applicant got part of the property in dispute. Plaintiff Dr. Bharat Kumar Gupta filed appeal against that part of the order of B.I.F.R. which included the property in suit. Appeal was dismissed by A.A.I.F.R.. Against the said order writ petition was filed which was dismissed on 7.5.2001. Against the said judgment special appeal no.732 of 2004 was filed which was dismissed by Delhi High Court on 18.8.2010, copy of the said judgment is Annexure 5 to the affidavit filed in support of stay application in this revision. In the said judgment following observation was made which has also been quoted in para 14 of the affidavit:

"it is stated by Sri P.K. Jain that despite civil suit filed against M/s Modi Spinning & Weaving Mills for possession, learned single Judge has found that it was open to the petitioner appellant to pursue the suit for possession, and if any transfer is made, the petitioner's right will not be affected, on principle of lis pendens. The petitioner can also implead the subsequent purchaser/transferee, if such rights are transferred in pursuance to the implementation of rehabilitation scheme".

It is stated that against the aforesaid judgment of Delhi High Court S.L.P. has also been dismissed.

Accordingly, in my opinion the impugned order is illegal and amounts to refusal to exercise the jurisdiction. Applicant is necessary or at least proper party in the suit. However, applicant deserves to be impleaded in the suit on certain conditions.

Firstly in view of the fact that application was filed quite late, a cost of Rs. 1/-lac is imposed upon the applicant. Secondly, the property involved is quite huge and extremely expensive. The rate of rent is hardly Rs. 32/- per year. Applicant is required to pay Rs.10,000/- per month to the plaintiff respondent.

Accordingly, revision is allowed. Impugned order is set aside and applicant's impleadment applicant filed before court bellow is allowed on the following conditions:-

Within two weeks from today applicant shall deposit Rs. 1/- lac as cost before the court below for immediate payment to the plaintiff.

W.e.f. May 2013 onward applicant shall pay Rs.10,000/- per month to the plaintiff as rent of part of the property in dispute which he has acquired under the scheme of B.I.F.R. Until decision of the suit this amount shall either be deposited in the bank account of the plaintiff by 7th of each succeeding month provided that details of the bank account are supplied by learned counsel for the plaintiff respondent to the learned counsel for the applicant or deposited before court below for immediate payment to the plaintiff. Until decision of the suit (or appeal etc.) this amount shall be continued to be paid. If the suit for possession in respect of property acquired by the applicant is dismissed then this amount shall be continued to be paid thereafter also. After every, 10 years the amount shall become double of the previous amount i.e. Rs.20,000/- per month w.e.f. May 2023 Rs.40,000/- per month, w.e.f. May 2033 and so on until applicant vacates the premises in question or is evicted through process of court.

Within two weeks along with cost applicant shall file written statement. The witnesses of the plaintiffs which have already been examined may be recalled on the application of the applicant for cross examination. Thereafter applicant may be permitted to adduce his evidence/witnesses also. Along with the written statement applicant shall also file all the documentary evidence on which it wants to place reliance.

Order Date :- 1.5.2013

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