Amrit Kaur vs Om Prakash Fateh Chand Ltd. And ...
1999 Latest Caselaw 628 Del

JUDGMENT

Vijender Jain, J.

1. Aggrieved by the dismissal of her application under Order 1 Rule 10 CPC by the Addl. Rent Controller and thereafter by the Rent Control Tribunal, the petitioner filed this Civil Misc. (Main) under Article 227 of the Constitution of India in 1995. Since then matter is pending in this Court and the eviction petition is also pending before the Addl. Rent Controller. Respondent No. 1/landlord started his attempt to recover possession of the premises by filing an application before the competent authority under the Slum (clearance & Improvement) Act in 1979. Ten years were consumed by the said authority to grant permission to respondent No. 1 for filing a petition for eviction. After obtaining the said permission, respondent No. 1 filed the petition under Section 14(1)(b), (h) & (j) of the Delhi Rent Control Act, 1958 against respondent No. 2 Bhupinder Singh Bhalla in 1990. On 22.10.1990 present petitioner filed an application under Order 1 Rule 10 claiming herself to be the widow of Sardar Jodh Singh, inter alia, contending that Jodh Singh and Bhupinder Singh Bhalla- respondent No. 2/tenant migrated to India and came to occupy the demised premises together as joint/co-tenants, therefore, she was a necessary party. She further stated in the said application that the petitioner was not made a party before the Slum Areas (Improvement & Clearance) Act and no permission to institute eviction proceedings has been obtained against the applicant.

2. Strangely in paragraph 5 of the said application again she took a somersault and averred that if it was held by the Court that the applicant and her husband late Jodh Singh were inducted as sub-tenant by the respondent No. 2 herein then the sub-letting in their favour was lawful within the meaning of Section 14(1)(b) and Section 16 of the Delhi Rent Control Act.

3. Mr. Ahluwalia, learned counsel for the petitioner has vehemently contended that according to the eviction petition filed by respondent No. 1, it is stated that it was a case of sub- letting in order to determine whether the sub-letting was legal or illegal, the petitioner ought to have been made a party by Addl. Rent Controller. In support of his submission, learned counsel for the petitioner has cited Kewal Kant v. V.K. Gupta 1971 RLR 77 (Note) 102, Navbharat Dal Mills v. Food Corporation 1993 RLR 73, Shri Devi Dayal Dixit v. Rashtriya Electrical and Engineering Company through Som Raj 1983(1) RCR 37, Sardar Harbans Singh and Ors. v. E.R. Srinivasan and Ors. 1979 (1) RCR 576, B.H. Rangaswamy and Anr. v. Mysore Arts & Wood Works and Ors. 1993 (1) RCJ 401. On the basis of the aforesaid authorities learned counsel for the petitioner has contended that a proper party is one whose presence is necessary to enable the Court to effectively and completely adjudicate upon and settle all questions involved in the case. Reliance was placed on the decision of the Supreme Court in South Asia Industries Private Ltd. v. Sarup Singh and others in which it was held that a sub-tenant was an interested person and hence he was a proper party and he should not be condemned without a hearing.

4. There cannot be any dispute with the proposition of law as enunciated in the aforesaid authorities. But whether the ratio of these authorities would be applicable in the present case? In his application for impleadment as a party under order 1 Rule 10, the petitioner has taken shifting stands. In one go, she pleaded herself to be a joint tenant. In the same application she mentioned that if the court was to decide that Jodh Singh was inducted as a sub-tenant, by respondent No. 2, then whether that induction was legal or illegal has to be determined and adjudicated upon. If the ratio of the aforesaid authorities were to be applied, the facts of each case were different then the one before me. Here is a case where proceeding against respondent No. 2-tenant was instituted in the year 1979 by the landlord, who is respondent No. 1 before me. Husband of petitioner- Jodh Singh was very much alive. He died in the year 1984. He never

made an application before the Competent Authority (Slums) alleging himself to be a lawful sub-tenant. Can the widow of Jodh Singh claim a better right for impleadment in a proceeding instituted by the landlord against the tenant when Jodh Singh himself has not taken such plea in his life time. Jodh Singh died in the year 1984. No application for impleadment was moved by the petitioner even after his death before the Competent Authority (Slum) although the proceedings before the authority were pending since 1979, it only culminated in the year 1989.

5. I do not find any force in the arguments of Mr. Ahluwalia that in view of the fact that the Addl. Rent Controller has given a finding that Jodh Singh was in possession of the suit premises from 1955 and even prior to that and that possession has to be considered as a possession of lawful sub-tenant. Mere possession of a party in the premises in question will not create a right of tenancy in him. Addl. Rent Controller has recorded in his impugned order that the respondent No. 1 had placed various documents on record to show that respondent No. 2 was a tenant. He has placed on record the rent receipts which were in the name of Bhupinder Singh Bhalla- respondent No. 2. Respondent No. 2 and Jodh Singh had the relationship of uncle and nephew. Bhupinder Singh is the nephew of present petitioner. This is how the Addl. Rent Controller has dealt with :

"It is difficult to belief that applicant was not aware of the proceedings before the Slum Authorities because Slum Authorities took about 10 years to decide that matter. Had there been any collusion between the petitioner (respondent No. 1 herein) and respondent (respondent No. 2 herein), the permission could have been granted by the Slum Authorities promptly. Respondent has fully contested the petition before the Slum Authorities and he has not taken any plea before the Slum Authorities that apart from him Shri Jodh Singh is also a tenant. Though respondent has taken this plea in the written statement that apart from him, Jodh Singh was also one of the co-tenants. These things on the face of it shows that there is collusion between respondent arid applicant rather between the petitioner and respondent."

6. There was another important factor which was brought to the notice of this Court at the arguments stage, although said document was filed before the Competent Authority and which clinches the whole issue, that is the letter written by Ram Dulari previous owner from whom the present owner respondent-1 has purchased the property. That bears the signature of Bhupinder Singh Bhalla dated 27.5.1971 in token of the receipt of said letter. The letter, inter alia, reads as under :

"This is to inform you that I have sold the above property to M/s Om Parkash Fateh Chand Private Ltd. 7/7, D.B. Gupta Road, New Delhi-55 through their Managing Director, Shri Fateh Chand Bansal, in you are a tenant occupying back portion at 1st Floor on a monthly rent of Rs. 109 = 25 beginning from the 1st of each calender month.

You should attorn as a tenant to the said purchaser and pay him the monthly rent w.e.f. 1.5.7.1 together with other charges etc., in future, as the purchaser is fully entitled to recover rents in accordance with the law.........."

7. Aforesaid letter of atonement was addressed by Ram Dulari, the previous owner of the property in question to Bupinder Singh Bhalla. Apart from this, in his cross-examination before the Slum Authority, Bhupinder Singh Bhalla stated that he was the only tenant in the premises in question.

8. It is well settled proposition of law that as a rule a party cannot be added when the plaintiff is opposed to such addition. Plaintiff is the dominus lIT is of his litigation. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. A third person is only impeded as a party in exceptional cases as has been mentioned in South Asia Industries Pvt. Ltd.'s case (supra). Certainly not in a ease where the petitioner herself has taken contradictory stands.

9. I do not find any infirmity with the order passed by the Addl. Rent Controller or of the Rent Control Tribunal.