Hakim Sayed Hussain vs V.K. Jain And Ors.
1987 Latest Caselaw 366 Del

JUDGMENT

B.N. Kirpal, J.

(1) The challenge in this petition is to the order dated 6th March, 1986 whereby the Sub-Judge, Delhi allowed an application under Order 47 passed by respondent No. 3 and set-aside the judgment and decree dated 12th April, 1985.

(2) Briefly stated the facts are that the petitioner had filed a suit for recovery of arrears of rent in respect of the properly being Plot No. 268, opposite Bangle Wali Masjid, Basti Hazrat Nizamuddin, New Delhi measuring about 50 sq. metres. This suit was filed against Israr Ahmed who was the father of respondent No. 2 Irfan Ahmed. The said suit, which was filed on or about 7th December, 1973 was compromised on 21st July, 1977. By virtue of the compromise Israr Ahmed admitted himself to be a tenant of the petitioner at the rate of Rs. 30.00 per month and also admitted his liability to pay rent of Rs. 540.00 .

(3) Israr Ahmed did not make the payment in terms of the compromise dated 21st July, 1977. Thereafter the petitioner, on or about 19/20th December, 1977, filed another suit against Israr Ahmed for his ejectment and recovery of arrears to the tune of Rs. 690.00 .

(4) During the pendency of the said suit Israr Ahmed died in March, 1980 and his son Irfan Ahmed was substituted in his place.

(5) During the pendency of the suit Irfan Ahmed absented himself from Court with the result that he was proceeded ex parte. On 12th April, 1985 Shri S.S. Handa, Sub-Judge, Delhi decreed the suit of the petitioner. Respondent No. 3 herein Sibtain Ahmed, on 14th September, 1979, filed a suit against Irfan Ahmed and others for grant of a perpetual injunction. In this plaint it was alleged that with effect from January, 1978 respondent No. 3-herein had set-up a shop on a piece of land alleged to be a contiguous part of the said plot No. 268, which is the plot in dispute. The petitioner-herein was imp leaded as defendant No. 4 in the said suit but no relief was claimed against him.

(6) After the suit instituted by the petitioner had been decreed on 12th April, 1985, respondent No, 3-herein filed an application for staying the execution of the said decree dated 12th April, 1985. He also filed a review petition under Order 47 seeking to review the judgment and decree dated 12th April, 1985. It was contended by respondent No. 3 that he had been in possession of the disputed property since 1st January, 1978.

(7) Shri V.K. Jain, Sub-Judge, Delhi, by the impugned order dated 6th March, 1986, came to the conclusion that the decree had been passed against the person who was in possession and without his being imp leaded as a party to the suit. While relying upon Shivdeo Singh v. State of Punjab, Air 1963 SC 1909, the Sub-Judge allowed the review application and set-aside the judgment and decree dated 12th April, 1985. It is this order of 6th March, 1986 which is challenged before me.

(8) The trial court has proceeded on the premise that respondent No. 3 should have been imp leaded as a party to the suit as he was in possession of the plot in question and any decree obtained in his absence was liable to be set-aside. The trial court, unfortunately, did not bear in mind the facts enumerated above. The suit, in which the decree was passed, was filed on 19/20th December, 1977. Even assuming the averment made by respondent No. 3 as being correct, he entered possession in the plot in question after the filing of the suit i.e. on 1st January, 1978. This being so, the question of impleading respondent No. 3 as a party to the suit, when it was instituted, cannot and did not arise because admittedly on that date he was not in possession of the suit premises. Once the suit has been instituted against the person who was in occupation, the doctrine of Us pendence applied and the plaintiff could not have been non-suited for not having imp leaded a person who is alleged to have come into possession at a later point of time. The decision of the Supreme Court in Shivdeo Singh's case (supra) is also not applicable. In that case allotment had been made in favor of a person. That allotment was set- aside in a writ petition filed by another person. The allottee then sought the review of the judgment whereby his allotment had been set-aside. It is in that context that the Supreme Court observed that the allottee had locus standi to apply for review because he was aggrieved by the order which had been passed by the writ court. In that case the allottee had a subsisting right at the time when the writ petition was filed challenging his allotment. In the present case respondent No. 3 was admittedly not in possession of the suit premises when the suit was filed by the petitioner on 19/20th December, 1977. At that time respondent No. 3 was a complete stranger to the suit. Reliance has rightly been placed by counsel for the petitioner on the decision of a Division Bench of this Court in the case of Bharat Singh v. Firm Sheo Pershad Giani Ram and others, . In that case it has been held that a third party, who is not a party to the suit or proceedings, cannot file an application for review under Order 47 Rule I Civil Procedure Code . The decision of this case is fully applicable to the present proceedings. Respondent No. 3 was not a party to the suit which had been decreed on 12th April, 1985 and, therefore, he had no locus standi to move the application under Order 47.

(9) For the aforesaid reasons, the petition is allowed and the order dated 6th March, 1986 passed by Shri V.K. Jain, Sub-Judge 1st Class, Delhi is set-aside and the judgment and decree dated 12th April, 1985 is restored. The petitioner will be entitled to costs.