Bombay High Court
Mr. Peter Cajetan Travasso And Ors vs Shri. Lal Bherumal Laungani And ... on 10 October, 2017
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5624 OF 2017
WITH
WRIT PETITION (L) NOS. 12247, 12249, 12263,
12264, 12445, 12446, 12510, 12512, 12515, 12574,
12576, 12627, 12750, 12751, 12760, 12769,
12770 AND 12779 OF 2017
Mr. Peter Cajetan Travasso and ors. .. Petitioners
vs.
Shri. Lal Bherumal Laungani and ors. .. Respondents
Mr. P.S. Dani, Sr. Advocate a/w. Yasmin Bhansali i/b. Yasmin
Bhansali and Co. for the Petitioners.
Ms Rajni Iyyer, Sr. Advocate a/w. Cherin Lapashiya i/b M/s.
Niranjan and Co. for Respondent No.1.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 5th October 2017.
Date of Pronouncing the Judgment : 10th October 2017.
COMMON JUDGEMENT:-
1] Heard Mr. P.S. Dani, learned senior advocate
alongwith Yasmin Bhansali, learned counsel for the
petitioners and Ms Rajni Iyyer, learned senior advocate
alongwith Cherin Lapashiya, learned counsel for respondent
No.1 (contesting respondent).
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2] Rule in each of the petitions. With the consent of and at
the request of learned counsel for the parties, Rule in each of
the petitions is made returnable forthwith.
3] Learned counsel for the parties submit that the order
impugned in each of these petitions is virtually identical and
therefore, these petitions can be disposed of by common
order.
4] They agree that Writ Petition No. 5624 of 2017 may be
taken as lead petition.
5] The challenge in Writ Petition No. 5624 of 2017 is to
the order dated 17th March 2017 made by the Division Bench
of the Small Causes Court (Revisional Authority) setting aside
the order dated 17th October 2015, by which, the Small
Causes Court, had permitted joinder of the petitioners as
defendants in R.A.E. Suit No. 1148 of 2013 instituted by
respondent No.1 (plaintiff).
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6] Mr. Dani, learned senior advocate for the petitioners,
submits that there is no dispute whatsoever that the
petitioners are the owners of the suit premises. In terms of
agreement dated 8th January 1984, the petitioners have
agreed to sell the suit premises to the plaintiff. However, the
said agreement failed and there are several litigations
pending between the petitioners and the plaintiff in relation
to the suit property. Mr. Dani submits that the plaintiff has
instituted the suit seeking eviction of the defendants-tenants
on the ground that the plaintiff is a rent collector and
therefore, the landlord, for the purposes of the Maharashtra
Rent Control Act, 1999 and further, that the defendants-
tenants have allegedly committed defaults in payment of rent.
Mr. Dani submits that the petitioners, as the owners, have no
interest in securing the eviction of the tenants-defendants.
For this purpose, Mr. Dani submits that the petitioners are
necessary or in any case proper parties to the suit instituted
by the plaintiff.
7] Mr. Dani submits that in any case, even if a decree of
eviction is required to be made against the defendants-
tenants, the possession of the suit property has to be restored
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to the true owner, i.e., the petitioners herein. Mr. Dani
submits that the Small Causes Court had rightly ordered the
impleadment of the petitioners as defendants to the suit and
the Revisional Authority, without there being any error of
jurisdiction, has declined impleadment. Mr. Dani submits that
this is a fit case to set aside the impugned order and restore
the order made by the Small Causes Court on 17 th October
2015.
8] Ms Rajni Iyyer, learned senior advocate for respondent
No.1 (plaintiff), submits that R.A.E. Suit No. 1148 of 2013
instituted by the plaintiff seeks eviction of the tenants-
defendants on the ground of default in payment of rents. In
such a suit, there is no question of the Small Causes Court
adjudicating serious disputes between the plaintiff and the
petitioners. She submits that the petitioners are neither
necessary nor proper parties. She submits that impleadment
of the petitioners as a parties to the suit will completely
embarrass the proceedings in the suit since, the scope of suit
is not determine the respective rights of the plaintiff and the
petitioners.
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9] Ms Iyyer further submits that the petitioners'
application seeking impleadment was totally mala fide and
attempt to overreach several orders made by this Court in
several disputes pending between the petitioners and the
plaintiff in relation to the agreement dated 8 th January 1984
and the irrevocable Power of Attorney (POA) executed by the
petitioners in favour of the plaintiff. Ms Iyyer submits that this
is yet another reason why no impleadment ought to be
permitted. Ms Iyyer submits that there is absolutely no
jurisdictional error or perversity in the impugned order and
therefore, this Court, ought not to interfere with the
impugned order in the exercise of its extraordinary
jurisdiction under Article 227 of the Constitution of India.
10] The rival contentions now fall for determination.
11] The R.A. E Suit No. 1148 of 2013 has been instituted by
the plaintiff to seek eviction of the defendants-tenants on the
ground of default in payment of rent. In the suit, the plaintiff
has pleaded the basis upon which, he claims to be the
landlord in respect of suit property of which the defendants,
are the tenants. At this stage, there is no necessity to go into
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the issue of correctness or validity of such averments. In a suit
of the aforesaid nature, the petitioners, who claim to be the
actual owners of the said property cannot be regarded to be
necessary parties. On the basis of any decree, which the
plaintiff may obtain in the present suit, there is no question of
any effect upon the petitioners' title, if any, to the suit
property. For the purposes of the Maharashtra Rent Control
Act, 1999, it is not necessary that the status of landlord and
owner have to necessary be combined in one and the same
person.
12] In fact, Section 7(3) of the Maharashtra Rent Control
Act, 1999 defines expression "landlord" as follows:
"(3) Landlord means any person who is for the time
being, receiving, or entitled to receive, rent in respect of
any premises whether on his own account or on account,
or on behalf, or for the benefit of, any other person or as
a trustee, guardian, or receiver for any other person or
who would so receive the rent or be entitled to receive the
rent if the premises were let to a tenant; and includes any
person not being a tenant who from time to time derives
title under a landlord, and further includes in respect of
his subtenant, a tenant who has sub-let any premises;
and also includes, in respect of a licensee deemed to be a
tenant under the provisions of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 (Bom.LVII of
1947), the licensor or who has, given premises on licence
and in respect of the State Government or as the case may
be, the Government allottee referred to in sub-clause (b)
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of clause (2) deemed to be a tenant by section 27, the
person who was entitled to receive the rent if the premises
were let to a tenant immediately before the 7th December,
1996, that is before the coming into force of the Bombay
Rents, Hotel and Lodging House Rates Control, Bombay
Land Requisition and the Bombay Government Premises
(Eviction) (Amendment) Act, 1996 (Mah. XVI of 1947);
13] In Nisha Rani Mookherjee vs. Puran Chand Jain -
(2004) 10 SCC 637, in the context of definition of expression
"landlord" in Section 2(d) of the West Bengal Act, the
Supreme Court, at paragraphs 8 and 9 has observed thus:
"8. The expression "landlord" has been defined in the
Act in Section 2(d)and reads as follows:
"2.(d) 'landlord' includes any person who, for the
time being, is entitled to receive or but for a
special contract would be entitled to receive the
rent of any premises, whether or not on his own
account."
9. In view of the undisputed position that the
landlady was receiving rent, she is certainly covered by
the definition of "landlord" as appearing in the Act."
14] Mr. Dani, however, submitted that the petitioners, who
according to him, are admittedly the owners of the suit
property, are at least a proper parties to R.A.E. Suit No. 1148
of 2013 and therefore, were required to be impleaded as
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parties to the suit. He submits that the petitioners in this case,
are entitled to contend that they do not want a decree of
eviction against their tenants on the ground of default in
payment of rent. In the alternate, the petitioners are entitled
to contend that the vacant possession of the suit premises be
restored to the petitioners than to plaintiff, who has per his
own pleadings in the plaint, claims to be only a rent collector.
15] Order 1 Rule 10(2) of the Code of Civil Procedure 1908
(CPC) entitles the Court, at any stage of the proceedings,
either upon or without the application of either party, and on
such terms as may appear to the Court to be just, order that
the name of any party improperly joined, whether as plaintiff
or defendant, be struck out, and that the name of any person
who ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be
necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit, be added. The object of the rule is not to
change the scope or character of the suit by adding new
parties and to enable them to litigate their own independent
suit but simply to hold them to avoid unnecessary litigation
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which might otherwise become necessary. The main object of
this rule is also not to prevent multiplicity of actions, even
though it may, incidentally, have that effect. The person to be
joined must be one, whose presence is necessary as a party.
When a right is claimed against him and when it is not
possible to pass an effective decree in his absence, he
becomes a necessary party. Similarly, if an adjudication is
likely to affect a party, then, ordinarily, joinder of such party is
necessary so as to effectually and completely settle the issue
between the parties and grant comprehensive relief.
16] In this case, as noted earlier, considering the nature of
the suit and the relief claimed, it cannot be said that the
petitioners were necessary parties to R.A.E. Suit No. 1148 of
2013. Mr. Dani, however, submits that the petitioners are at-
least proper parties and therefore, discretion exercised by the
Small Causes Court in ordering the petitioners' joinder was
incorrectly interfered with by the Revisional Authority.
17] Order 1 Rule 10(2) of the CPC confers a wide discretion
to the Court to meet the every case of joinder or non-joinder
of parties. However, discretion is required to be exercised not
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arbitrarily, but on judicial principles. Ordinarily, the plaintiff is
the dominus litus. However, joinder can be ordered even
against the wishes of the plaintiff, if the situation, so
demands. The power to order joinder is normally confined in
two cases:
(i) When a party ought to have been joined, but is
not joined (necessary party); and
(ii) When, without presence of such party, the
question involved in the case cannot be effectively
decided (proper party).
18] The petitioners in this case, has failed to make out a
case that they are necessary parties to R.A.E. Suit No. 1148 of
2013. The reliefs applied for in the suit are perfectly capable
of being granted or refused without presence of the
petitioners. Any relief granted or finding recorded in R.A.E.
Suit No. 1148 of 2013 cannot, affect the rights, if any, of the
petitioners to suit property, regards which, there are already
several litigations pending between the parties. In fact, the
joinder of the petitioners in R.A.E. Suit No. 1148 of 2013,
might have the effect of altering the very character of such
suit and introducing a litigative front between the plaintiff
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and the petitioners in the context of their respective rights
qua the agreement dated 8th January 1984 and the irrevocable
POA. Such disputes are quite alien to proceedings in R.A.E.
Suit No. 1148 of 2013.
19] In the absence of the petitioners, it is not as if R.A.E.
Suit No. 1148 of 2013 cannot be completely or effectively
decided. The presence of the petitioners is not necessary for
determination of real matter in dispute. The presence of the
petitioners is not necessary for effectual and complete
adjudication of all the questions involved in R.A.E. Suit No.
1148 of 2013. Thus construed, it cannot be said that the
petitioners are either necessary or proper parties insofar as
R.A.E. Suit No. 1148 of 2013 is concerned.
20] If, the petitioners, are desirous of obtaining any reliefs
against the plaintiff, including the relief that the plaintiff
ought not to be permitted to prosecute suits of eviction
against the tenant or not to recover or retain the possession of
the suit property from the tenants, it is for the petitioners to
take out independent proceedings in that regard.
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21] At this stage, it is not necessary to go into the issue
raised by Ms Iyyer that the petitioners have in fact, in
independent proceedings, made attempts to secure such
reliefs and because, the petitioners had not been successful in
securing such reliefs, the petitioners, seeks to indirectly secure
such reliefs by applying for impleadement in R.A.E. Suit No.
1148 of 2013 and other suits for evictions of tenants.
22] This is really not the occasion to examine in detail, if
the petitioners purpose for seeking impleadment was to
overreach certain orders made by this Court in various
disputes pending between the petitioners and the plaintiff.
Since, the petitioners, are neither necessary nor proper
parties, there is no reason to order the petitioners'
impleadment in R.A.E. Suit No. 1148 of 2013 irrespective of
the motives or the real reason for the petitioners to seek such
impleadment.
23] Since, the power to order impleadment of parties is
discretionary, one of the factors which has legitimately
impacted the exercise of discretion by the Revisional
Authority is the pendency of independent litigations between
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the petitioners and the plaintiff, in which, the parties, are
already asserting their rights qua the suit property. The
Revisional Authority has rightly held that R.A.E. Suit No.
1148 of 2013 or for that matter other suits for evictions are
hardly, the proper forum for resolution of interse disputes
between the plaintiff and the petitioners. The exercise of
discretion in such circumstances cannot be regarded as
unreasonable or perverse.
24] The material on record indicates that this Court, by
order dated 17th February 2003 in Notice of Motion No. 325
of 2003 in Suit No. 41 of 2003 has granted in favour of the
plaintiff (respondent No.1 herein), the following ad-interim
reliefs:
"(a) that pending the hearing and final disposal of the
suit this Hon'ble Court may be pleased by its Order and
injunction restrain the Defendants, their servants and
agents and any other persons claiming through them from
interfering with and/or obstructing the use, occupation
and enjoyment of the Suit property including the
collection of the rent and other charges from the
Tenants/Occupants of the suit property;
(b) that pending the hearing and final disposal of the
suit this Hon'ble Court may be pleased by its Order and
injunction the Defendants, their servants and agents and
any other persons claiming through them restraint from
creating 3rd parties rights and/or transferring or accepting
the surrender of tenancy rights in respect of various
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tenements on the Suit property more particularly
described at Exhibit-A hereto or been collecting any rent
and/or compensation from any of the tenants or
occupants of the suit property".
25] By further order dated 18th February 2005, the ad-
interim relief was confirmed on the condition that the
plaintiff deposits in this Court a sum of Rs.4 crores. Ms Iyyer
points out that this amount has been deposited and therefore,
the interim relief in the aforesaid terms is presently operative.
26] In Suit No. 41 of 2003 instituted by the plaintiff, the
petitioners have raised a counter claim. The petitioners have
also applied for interim reliefs. The motion for interim reliefs
applied for by the petitioners was disposed of by this Court by
order dated 18th August 2005. The order dated 18 th February
2005, by which, the ad-interim reliefs granted in favour of the
plaintiffs came to be confirmed was directed to continue.
However, it was clarified that the plaintiffs are not entitled to
develop the said property or carry on construction thereon or
create any third party rights in respect of the suit property.
The plaintiffs were given liberty to negotiate with the tenants
and arrive at the settlement but the same was at his own risk,
cost and consequences, without claiming any equities.
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27] There is on record yet another order dated 31 st March
2009 made by this Court disposing of Notice of Motion No.
3905 of 2008 in the counter claim instituted by the
petitioners , again, seeking for certain interim reliefs,
including the interim relief in relation to transfer of tenancy.
This Court, by order dated 31st March 2009, dismissed the
said notice of motion with costs quantified at Rs.25,000/-.
Such costs were imposed because the petitioners had failed to
disclose the filing of Notice of Motion No. 2192 of 2005 by
them and the order made therein.
28] Since, the suit and the counter claim between the
petitioners and the plaintiff is already pending in this Court,
obviously, there is no question of permitting the petitioners to
re-agitate such disputes before the Small Causes Court in
R.A.E. Suit No. 1148 of 2013. Impleadment of the petitioners
in R.A.E. Suit No. 1148 of 2013 and similar other suits
instituted by the plaintiff, seeking eviction of the tenants-
defendants, will unnecessarily embarrass the proceedings in
the suits for evictions, without any significant corresponding
benefit to the petitioners. In such circumstances, it cannot be
said that the Revisional Authority has exercised discretion
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capriciously or arbitrarily in declining the petitioners leave to
be impleaded as defendants in R.A.E. Suit No. 1148 of 2013
and other suits for eviction of the tenants. There is no
jurisdictional error or perversity in the impugned order so as
to warrant interference under Article 227 of the Constitution
of India.
29] For the aforesaid reasons, Writ Petition No. 5624 of
2017 is liable to be dismissed and is hereby dismissed.
30] Since, learned counsel for the parties agree that the
impugned order in the remaining petitions is virtually
identical to the impugned order in Writ Petition No. 5624 of
2017, for the very same reasons, remaining petitions are also
liable to be dismissed and are hereby dismissed. In fact, Writ
Petition (L) Nos. 12512 of 2017 and 12750 of 2017, were not
on board. However, since, it was agreed that the challenge in
the said petitions pertains to virtually identical orders, the
same are also taken on board and disposed of.
31] Rule is discharged in each of the petitions. There shall
however, be no order as to costs.
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32] It is clarified that the observations in the impugned
order or for that matter present order are only in the context
of deciding whether the petitioners are required to be
impleaded as parties to the suits for eviction. Therefore, none
of these observations can be made use of in the litigations
pending between the petitioners and the plaintiff qua their
respective claims to the suit property.
(M. S. SONAK, J.)
33] At this stage, Ms.Bhansali, learned counsel for
the Petitioners in Writ Petition No.5624 of 2017 requests for
continuation of ad-interim relief, i.e. stay of further
proceedings in the pending suit. Ms.Bhansali states that the
stay has been in operation since April, 2013. The ad-interim
relief is continued for a period of eight weeks from today.
(M. S. SONAK, J.)
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