R.N. Bose vs Basab Mukhejee
1995 Latest Caselaw 789 Del

JUDGMENT

Usha Mehra, J.

(1) Petitioner R.N.Bose wanted to get imploded in the eviction petition filed by Sh.Basab Mukherjee against his tenant M/s Auto Motors.

(2) The impleadment has been sought, inter alia, on the grounds that petitioner was in fact the tenant. Because of his personal arrangement made with M/s Auto Motors, his employer, the rent was being paid by the said company, though it was he who in fact had been reimbursing the same to the Company. In his absence being the actual tenant any order passed would be adverse to his interest and ultimate decision would effect him.

(3) This application has been contested by the respondent/ landlord on the ground that property was let out to the Company M/s Auto Motors and not to the petitoner. Petitioner was only an employee of M/s Auto Motors. In an earlier petition filed under Section 14(1)(e) and (k) of the Delhi Rent Control Act (hereinafter called the "Act"), similar plea was taken by respondent No.2 before the Rent Controller. But the same was rejected holding that the company was the tenant and not Sh.R.N.Bose. Petitioner herein filed a suit seeking declaration to the effect that he was in lawful possession of the suit premises as tenant. Along with the suit he filed an application asking for interim injunction. Interim relief was not granted. Appeal against the said order was also dismissed. It is in this background that trial court after hearing counsel for the parties dismissed his application vide the impugned order.

(4) The order rejecting his application of impleadment has been assailed on the ground that the Trial Court could not rely on the observations of the Additional Rent Controller made in the earlier eviction petition filed by the landlord under Section 14(1)(e) and (k) of the Act because the Rent Controller has no authority to determine the relationship of landlord and tenant or conclusively decide the same. Relationship issue can only be decided by Civil Court. The petitioner has already filed a suit which is still pending, hence the Rent Controller ought to have imploded the petitioner in order to avoid multiplicity of proceedings. Moreover, the relationship of the respondent No.1 (hereinafter called the landlord) with the petitioner and respondent No.2 herein was open for scrutiny and investigation, therefore, the petitioner ought to have been added as a party for the appropriate and effective adjudication of the controversy between the parties. Finding of the learned Additional Rent Controller against the petitioner in the earlier eviction petition was behind his back as he was not party there, therefore, not binding.

(5) I have heard the learned counsel for the parties and perused the record. At the outset it must be remembered that the object of Rule 10 of Order 1 of the Code of Civil Procedure (hereinafter called the CPC), is not to change the scope or the character of the suit by addicting new parties. It is meant to avoid unnecessary litigation and/ or to avoid multiplicity of the litigation which might otherwise become necessry. The question of impleadment of a party is to be decided on the touch stone of Order 1 Rule 10, Cpc, which provides that only a necessary or proper party may be added. Mere interest of a party in the fruits of litigation cannot be a true test for his being imploded as a party.

(6) In order to see that whether the case of the petitioner falls within the parameters of Order 1 Rule 10 of Civil Procedure Code ., we have to appreciate few facts. Respondent No.1 herein filed an eviction petition against respondent No.2 under Section 14(1)(e) & (k) of the D.R.C. Act. The respondent No.1 specially pleaded that M/s Auto Motors was tenant and the premises was let out to the said company at a monthly rent of Rs.750.00 per month. In defense, the company took the plea that it was Mr.R.N.Bose who executed lease and thus he was the actual tenant, though rent was being paid by the company. Written statement on behalf of the company was signed by Sh.R.N.Bose, the present petitioner.

(7) After recording the evidence the learned Addl. Rent Controller, Delhi, concluded that the company was the tenant and not Mr.R.N.Bose. For arriving at this conclusion the Addl. Rent Controller, relied on a document Ex.RW-4 i.e. letter written by Sh.R.N.Bose to the Ndmc stating therein that company was the tenant. Even the electricity meter on the first floor was transferred in the name of company vide Ex.AW-2/1 and the tenancy certificate by Sh.R.N.Bose was filed on behalf of respondent company to the Ndmc on 31st July,1973 and 3rd December,1965. This is apparent from the judgment filed by the petitioner herein as Annexure-B. Appeal against which was dismissed by the Rent Control Tribunal in Rca No.895/81 on 1st December,1982, which is Annexure- C filed with this petition. Copy of the written statement filed by respondent No.2 shows that the same was filed and signed by Sh.R.N.Bose, power of attorney holder of respondent No.2. In para 9 of the said written statement it has been admitted that the premises was taken by the company for the residence of Sh.R.N.Bose, and the rent was being paid by the company to the landlord. It is admitted by the petitioner that his application for interim relief in the suit filed by him has been rejected. These facts lead to only one inference that the Court below had sufficient material on record to arrive at the conclusion that the petitioner was not a necessary party. Addition of a party is necessary for the determination of the real matter in controversy. He is not to be added merely because he would be incidently effected by the judgment. Even though the Rent Controller can not give finding on the relationship of the parties if it is in dispute. But at the same time we cannot loose sight of the fact that through out the litigation had been fought on behalf of the respondent No.2 company by the present petitioner Sh.R.N.Bose. He in fact knew the order of Sh.R.N.Jindal, Additional Rent Controller, when he held that it was the company which was the tenant. If the petitioner was aggrieved he would have preferred an appeal or would have filed an application at that stage for being imploded as a party. But he did nothing. It is well settled principle of law that discretion cannot or ought not to be exercised by the Court in favor of an applicant who applied to be imploded as a party where the application is made at a belated stage. The order in S.No. B-631/77 was passed on 19th October,1981. Written statement in the case was filed by the petitioner Sh.R.N.Bose on behalf of company i.e. respondent No.2 herein. In fact he was aware of the eviction petition through out. He was fully aware of the judgment of the Additional Rent Controller dated 19th October,1981. He preferred an appeal before the Rent Controller on behalf of the Company which was dismissed in December,1982. Still he took no action for being imploded as party. Privy Council in the case of Naba Kumar Hazra and Anr. V. Radhshyam Mahish and Ors. reported in 1931 Pc 229 held that where the addition involves a trial de novo, the Court will reject such an application. In the case in hand, if the application of the petitioner is now allowed it would involve the trial de novo. Therefore, to my mind, the trial court was justified in rejecting his application.

(8) The normal rule is that a party not imploded should not be thrust upon a plaintiff because the plaintiff is a dominus litis. If the plaintiff has sought relief against a particular person, it is not the outlook of the court to see whether the relief should be claimed against other person. The object of the sub rule is to protect the interest of the party, who is not before the Court and who may be adversely affected by such order. In this case the petitioner has always been before the Court and had been protecting his interest by representing for and on behalf of the company. Therefore, it cannot be said that the petitioner has been deprived in protecting his interest or that in his absence the petition could not be effectively adjudicated. Moreover, it is not disputed by the petitioner or by respondent No.2 that rent has always been paid by the company for the premises in question. Section 2 sub- section (l) of the D.R.C. Act which reads as under provides as to who will be called a tenant :- Section 2(1) : "TENANT"means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be payable..."

(9) In this case since the rent has always been paid by the company coupled with petitioner's own admission vide Ex.RW.4 that company was the tenant, to my mind, the addition of the petitioner was not necessary. His remedy was by way of a separate suit which he had already exhausted. So far as the Eviction petitoner is concerned, the respondent No.1 has filed the same as landlord against respondent No.2, the tenant. Therefore, I find no force in the submissions of Mr.Sanghi, that the petitioner should have been imploded as a party for proper and effective adjudication of the controversy between the parties. Some of the facts which were in the knowledge of the petitioner but he concealed in his petition namely that the petitioner filed a Civil Revision which was listed as C.R.No.52/95. The same was disposed of on the basis of compromise on 18th May,1995. There the present petitioner undertook to vacate the premises and handover vacant and peaceful possession to respondent No.1. Subsequently vide order dated 21st July,1995 passed in C.M.No. 2080/95 the revision petition as well as the application were ordered to be dismissed. The present revision petition was filed on 10th July,1995, but the factum of compromise order passed on 18th May,1995 had been concealed. Therefore, it seems to me that the petitioner is guilty of willful suppression of facts on which ground alone he is disentitled to any relief.

(10) In the similar circumstances this Court in the case of Prem Chand V. Sh.Gian Chand & Ors. 1979 (2) Rlr page 175 held that when such a petitioner filed a separate suit for the purposes of declaring himself to be the tenant and has availed himself of the alternative remedy, for this reason also he would be disentitled to any relief by way of his application under Order 1 Rule 10, CPC. Further the court opined that the sub-tenant is not a necessary party. Moreover, one cannot loose sight of the fact that the petitioner himself appeared as a witness RW-2 on behalf of the company and admitted that he wrote a letter to the Ndmc admitting that the company was the tenant in the premises in question. It is not that the petitioner's right is going to be effected, therefore, he should be imploded as a party. In fact necessary and proper party is already before the Court, therefore, the trial court rightly came to the conclusion that the petitioner need not be imploded as a party.

(11) For the reasons stated above I find no merit in the petition. Dismissed.