Sardar Dewan Singh vs M/S Khanuja Finance Co. & Another
2017 Latest Caselaw 5233 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

REPORTABLE
 
RESERVED
 

 
Case :- CIVIL REVISION No. - 581 of 2003 
 
Revisionist :- Sardar Dewan Singh 
 
Opposite Party :- M/S Khanuja Finance Co. & Another 
 
Counsel for Revisionist :- A.K. Mehrotra 
 
Counsel for Opposite Party :- P.K. Jain,A.D.Saunder,Rakesh Bagga 
 

 
Hon'ble Mrs. Sunita Agarwal,J. 

Heard Sri Srijan Mehrotra holding brief of Sri A.K. Mehrotra, learned counsel for the petitioner, Sri A.D. Saunder and Sri Rakesh Bagga, learned counsels for respondent no. 2.

It is noteworthy that no one appeared for respondent no. 1 namely M/s Khanuja Finance Company. Sri P.K. Jain, learned Advocate has filed his counter affidavit on behalf of respondent no. 1. On an information given to him, he denied having any instructions from respondent no. 1.

As the matter is pending for the last 14 years, this Court is not inclined to adjourn it any further.

The present revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "Act") has been filed with the prayer to set aside the order dated 22.4.2003 passed by XIIth Additional District Judge, Court No. 12, Kanpur Nagar with a further prayer to dismiss the impleadment application 58C-2 filed by opposite party no. 1 in S.C.C. Suit No. 16 of 1999 (Sardar Dewan Singh vs. Bishan Das Kataria).

The said suit had been filed by Sardar Dewan Singh, the petitioner herein against Bishan Das Kataria for ejectment on the grounds of default in payment of rent and recovery of possession. The said suit was contested by the defendant therein denying the landlord-tenant relationship and further that the actual landlord of the premises was M/s Khanuja Finance Company. The premises in question was given on rent to the defendant by the said company. Further it was stated that the defendant had vacated the tenanted accommodation on 31.3.1998 and had delivered physical and vacant possession to the landlord namely M/s Khanuja Finance Company. The petitioner/plaintiff denied the averments made in the written statement by filing a replication and disputed the rights of M/s Khanuja Finance Company to let out the premises in question to the defendant. On 31.6.2002, an application under Order 1 Rule 10 of the Code of Civil Procedure was filed on behalf of M/s Khanuja Finance Company, a partnership firm, the opposite party herein with the prayer to implead it in the Small Causes Suit for ejectment on the ground that the actual owner of the suit property was Sardar Khazan Singh and the shop was given to one Bishan Das Kataria in an agreement arrived between the applicant and Sri Bishan Das Kataria. This application 58C-2 was allowed vide order dated 22.4.2003 and the plaintiff/petitioner was directed to implead M/s Khanuja Finance Company through its partner Sardar Kuldeep Singh son of Sardar Khazan Singh as defendant in the suit and time was granted to the newly impleadment defendant to file written statement. Aggrieved, the petitioner/plaintiff filed the present revision.

The grounds to challenge the order of impleadment of opposite party no. 1 taken by the counsel for the petitioner are that the suit for ejectment and arrears of rent was filed with the claim of landlord-tenant relationship between the plaintiff and defendant (Bishan Das Kataria). The denial of title by the tenant would be a question which is to be addressed by the Small Causes Court on merits. However, a third party namely opposite party no. 1 has no right for impleadment in the suit for ejectment and arrears of rent inasmuch as he is neither necessary nor a proper party. In a Small Causes Suit, the limited jurisdiction of Court is to decide the question of landlord-tenant relationship and further whether the tenant is in default and the landlord is entitled to the decree of ejectment. In case of denial of title of the landlord, the necessary consequences will follow. However, this cannot be treated as a tool to include a third party in the suit by impleadment under Order 1 Rule 10 CPC as it is not permissible for the S.C.C. Court to enter into and decide the disputed questions of title between the parties. The adjudication on the question of title requires leading of evidence and appreciation thereof as a regular suit by the Court, whereas the Small Causes Suit is a summery proceeding. The strict rules of evidence are not applicable. It is contended that by allowing the application for impleadment, the Small Causes Court had converted the S.C.C. Suit based on landlord-tenant relationship into a suit for title.

Lastly, it is submitted that a third party who is claiming his right on the basis of an unregistered agreement to sell cannot be impleaded as no rights are created in his favour under Section 54 of the Transfer of Property Act.

Reliance is placed upon the judgment of this Court in Smt. Prabha Saxena vs. IInd Additional District Judge, Kanpur Nagar and others1, Kailash Chand vs. Kedar Nath Jain and others2, Laxman Prasad Kanchan vs. Kranti Kumar Kanchan and others3, Jiyalal vs. XIth Additional District Judge, Meerut and another4 and Ashok Kumar Dublish vs. Ajeet Kumar Dublish5 to submit that the impleadment of a third party claiming ownership to the suit property in a landlord-tenant suit before the Small Causes Court, cannot be allowed.

With reference to the decision in Indira Fruits & General Market, Begum Bridge, Meerut vs. Bijendra Kumar Gupta and others6, it is submitted that a party claiming right on the basis of the unregistered agreement to sell has no right for impleadment.

Sri A.D. Saunder and Sri Rakesh Bagga learned counsels have put in appearance on behalf of respondent no. 2 namely Bishan Das Kataria. They would vehemently contend that at no point of time any lease agreement was executed between the plaintiff and the defendant. Rent was never tendered to the plaintiff and as such the suit for ejectment cannot proceed against Bishan Das Kataria at the instance of the plaintiff namely Sardar Dewan Singh.

It is submitted that Small Causes Court has allowed the impleadment application so as to do complete justice between the parties. However, a party whose interest is directly and substantially involved in the proceeding is necessarily to be joined. The main object of the rule is to prevent multiplicity of the litigation. In the facts situation, it was desirable for the Small Cause Court to allow the imleadment of M/s Khanuja Finance Company as one of the parties to the suit.

Reliance is placed upon the judgment of the Apex Court in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay7.

Heard learned counsel for the parties and perused the decisions relied upon by them. Relevant facts discernible from the record are that the applicant claims impleadment under Order 1 Rule 10 CPC on the ground that the disputed property was a plot which was owned by the plaintiff/petitioner namely Sardar Dewan Singh. The said plot was leased out to Sardar Khazan Singh with an intention to sell the same. The agreement to sell/lease was executed in his favour on 11.10.1961 and possession of the vacant plot was delivered to Sardar Khazan Singh. The plaintiff/petitioner had allowed Sardar Khazan Singh to raise constructions over the open piece of land as per his choice and to enjoy the same. The constructions were, thereafter, raised by Sardar Khazan Singh and his name was mutated in the municipal record as owner of construction/'Malba'. The constructions were, thereafter, leased out by Sardar Khazan Singh to M/s Khanuja Finance Company in the year 1976. The lease was extended from time to time and the said company which had leased out different portions of the property to different tenants was realizing rent from them.

This fact is well within the knowledge of the plaintiff. The applicant being landlord of the suit property is a necessary party to the eviction suit filed by Sardar Dewan Singh inasmuch as in case, an eviction decree is passed in favour of the plaintiff, he would claim ownership rights to the suit property. The Judge Small Causes Court while allowing the said impleadment application placed reliance upon an agreement of lease allegedly executed by M/s Khanuja Finance Company in favour of Bishan Das Kataria (defendant in the S.C.C. Suit) and the fact that name of Sardar Khazan Singh was recorded in the municipal records. It was of the opinion that without impleading M/s Khanuja Finance Company, the actual landlord, it was not possible to pass an effective order in the eviction suit and further in order to avoid the multiplicity of the proceeding, the parties who have a right or interest in the suit property were to be allowed to join.

In the light of the above noted facts, it would be necessary to examine the legal position regarding jurisdiction of the Small Causes Court in a suit filed for ejectment on the ground of default in payment of rent. There is no dispute about the fact that in a suit filed by a landlord against the tenant, the Judge, Small Causes Court cannot decide the question of title. He has to decide the limited question as to whether there is a relationship of landlord and tenant between the plaintiff and the defendant. The right of the plaintiff is based on the relationship of landlord and tenant. In case, the plaintiff has claimed his right on the basis of title, then the Small Causes Court has to return the plaint as provided under Section 23 of the Act. In a case of denial of relationship of landlord and tenant by the defendant, only question which is to be decided by the Judge, Small Causes Court, as to whether the premises-in-question was let out to the defendant as tenant and whether the possession of the defendant at the time of filing of the suit was that of the tenant. However, in case of denial of such relationship by the defendant, the suit cannot be dismissed as a matter of course, rather the Court has to adjudicate on the issue.

It is equally well settled that a third party claiming himself to be owner/co-owner of the property cannot seek his/her impleadment as a party to the suit as any such impleadment would result in conversion of a simple suit for ejectment into a suit for title between the landlord and a third person, which would simply be beyond the jurisdiction of the Small Cause Court. In any case, the decision in the ejectment suit would not cause any prejudice to the interest of another person who is claiming ownership to the suit property. He may get possession over the same in a regular suit to be filed before the Civil Court and any order of ejectment passed by the Small Causes Court would be subject to the result of the suit filed by such applicant.

The principles of impleadment under sub-rule (2) of Rule 10 of Order 1 CPC are that a necessary party is one without whom no order can be made effectively in a proceeding. Where a party is one in whose absence, an effective order cannot be passed and whose presence is necessary for a complete and final decision on the questions involved in the proceeding, impleadment of such party has to be allowed. The addition of parties is a question of judicial discretion which has to be exercised in the facts and circumstances of a particular case. There can be no straitjacket formula to decide as to when a person is a necessary or proper party to a suit. In view of the fact that the Small Causes Court cannot enter into intricate question of law and cannot decide the disputed question of title/ownership in an ejectment suit filed against the tenant, a third party who is claiming ownership and claiming his right or interest in the suit property being the landlord of the suit property, cannot be necessary or proper party to the suit. It would always be open for the said party to file a regular suit to adjudicate his right in the disputed property.

In the instant case, the applicant is claiming his right on the basis of an unregistered agreement to sell dated 11.10.1961, which is subject matter of a suit for relief of specific performance, filed by him namely Original Suit No. 289 of 1977 (Sardar Khazan Singh vs. Sardar Dewan Singh). the question of title of the applicant Sardar Khazan Singh viz-a-viz Sardar Dewan Singh the plaintiff herein would be decided in the said suit only. The entries of the municipal records cannot be made basis of title of a person. However, the records thereof can only be examined in the pending suit by the Civil Court. In any case, in the present suit namely S.C.C. Suit no. 16 of 1999, the disputed question of title between Sardar Dewan Singh, the plaintiff herein and Sardar Khazan Singh or M/s Khanuja Finance Company (the applicant in impleadment application) cannot be adjudicated.

For the above noted reasons, the order dated 22.4.2003 passed by XIIth Additional District Judge, Court No. 12, Kanpur Nagar in S.C.C. Suit No. 16 of 1999 (Sardar Dewan Singh vs. Bishan Das Kataria) cannot be sustained. The same is hereby set aside.

The Civil revision is allowed.

However, in view of the fact that the eviction suit is pending since the year 1999 and the defendant tenant is claiming that he had vacated the suit premises, a direction is issued to the Judge, Small Causes Court/Court concerned to decide the instant suit, expeditiously, preferably within a period of four months from the date of submission of certified copy of this order.

Order Date :- 9.10.2017 (Sunita Agarwal, J.)

B.K.