Shashi Devi Sharma vs M/S. Kerala State Co-Operative ...
2013 Latest Caselaw 3598 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Order delivered on: August 14, 2013

+                   CM(M) No.637/2013 & CM No.9528/2013

      SHASHI DEVI SHARMA                                     ..... Petitioner
                                       Through      Mr. S.K. Duggal, Adv.

                    versus


      M/s KERALA STATE CO-OPERATIVE       ..... Respondents
      COIR MARKETING FEDERATION LTD.
      & ANR.
                             Through None


      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. The petitioner has filed the petition under Article 227 of the Constitution of India against the order dated 18th May, 2013 of the learned ADJ in Suit No. 180 of 2010.

2. The petitioner/plaintiff in the present case filed a suit for recovery of possession, arrears of rent, mesne profits and perpetual injunction against the Respondent/Defendant stating that he let out premises No. 18/228, Guru Nanak Pura, Opp. Laxmi Nagar, District Centre, Laxmi Nagar Delhi to the Respondent on 13th November, 2008 on a monthly rent of Rs. 25,000/- and that the Defendant is a habitual defaulter and has not paid rent after 31st March, 2010.

3. During the pendency of the suit, the applicant Sh. Amar Chand Goel filed an application under Order 1 Rule 10(2) CPC and averred as follows:

a) That the applicant is the owner of immovable property under the tenancy of M/s COIRFED.

b) That earlier Sh. Laxman Thakur was his tenant in the suit property against whom he had obtained an eviction order dated 18th November, 2003 passed in E.V. No. E-162/02 from learned ARC, Delhi.

c) That the applicant had filed an execution petition bearing No. M- 2/2004 to execute the eviction decree against Sh. Laxman Thakur, but the plaintiff had resisted the warrants of possession issued by the Executing Court and filed objection claiming that she was residing in the suit property in the capacity of owner.

d) That the Executing Court proceeded with the execution petition in accordance with Order 21 Rule 97 CPC with regard to the objections filed by the plaintiff and the same was pending before learned ARC, KKD Courts, Delhi.

e) That the plaintiff in furtherance of her illegal possession had rented out the suit property to the defendant with the intention to enrich herself illegally and the applicant has filed an application before learned ARC in the execution petition, directing the defendant to deposit the rent in the court of learned ARC instead of paying it to the plaintiff and the defendant had appeared before the learned ARC after issuing the notice and the said application is pending for disposal.

f) That during the pendency of the proceedings before learned ARC, the plaintiff had filed the present suit and created the tenancy in favour of the Defendant without seeking permission from the Court of learned ARC,

despite the fact that the issue whether the plaintiff was having possession of the suit property in her own independent right was a matter of trial.

g) That the plaintiff has no right, title or interest in the suit property and her claim is based on forged, fabricated and manipulated document and the plaintiff knows her objections, regarding her right in the suit property, which is pending before the Executing Court and a civil suit No. 87/2006 filed by the plaintiff was dismissed by the court vide an order dated 13th March, 2007 and the plaintiff challenged the said order through an appeal bearing No. 21/2011 before the High Court which was dismissed vide order dated 9th February, 2011.

4. The learned Trial Court while allowing the application of Sh. Amar Chand Goel in para 8 and 9 of the impugned order has given the following reasons. The same are read as under :

"8. Perusal of the record shows that the plaintiff has filed the present suit for recovery of possession, arrears of rent, mesne profits and perpetual injunction, against the defendant. The applicant has sought to be impleaded as one of the party in the present case, claiming to be the owner of the suit property and in order to substantiate his contention, he has placed on record copy of the judgment passed in case Amar Chand Goel Vs. Laxman Thakur, wherein the court of Sh. Rakesh Sayal was pleased to pass an eviction decree in favour of the applicant shows that the plaintiff herein had filed a civil suit and sought to declare the said judgment as null and void. The said suit was dismissed by the Ld. Trial Court. The order passed by the Ld. Trial Court was upheld by the court of Ld. ADJ vide judgment dated 10.12.10 and thereafter their lordship of Hon'ble High Court vide its judgment dated 0902.11 passed in RSA No.21/2011 had upheld the order passed by the Ld. Trial Court. Ld. Counsel for the plaintiff has relied upon the judgment passed by their lordship of Delhi High Court in case Arvinder Kaur Sethi v. Akshay Chabbra and Ors. CM(M) 1028/2012, decided on 14.09.2012. No doubt, in case between the landlord and tenant, the third party is not allowed to be impleaded as party. But, in the considered opinion of this court,

the facts of the present case are peculiar, as in the case in hand, the decree of eviction has already been passed in favour of the applicant in respect of the suit property and it has become final and suit of the plaintiff, vide which, she has sought to declare the said judgment (decree of eviction), as null and void, has already been dismissed by the Ld. Trial Court and the same has been upheld by the Hon'ble High Court of Delhi and since the pecuniary interests are attached to the suit property regarding which a decree of eviction has already been passed by a court of competent jurisdiction in favour of the applicant, so, the applicant is a necessary party to the present lis. So, in the given circumstances, this court is of the considered view that the judgment passed by their lordship of Delhi High Court, relied upon by the ld. Counsel for the plaintiff, is not applicable to the case in hand.

9. Since, the plaintiff has filed the suit for recovery of possession, arrears of rent, mesne profits and perpetual injunction against the defendant and the defendant has stated that it is ready to pay the rent to the person to whom this court would order and since in the case in hand the pecuniary interest are involved and the person who is rightful owner will be entitled to recover the rent and possession, so, in the given circumstances, this court is of the considered view that the applicant is essential and necessary party for the proper adjudication of the case, as one of the court has already determined his interest in the suit property, so, keeping in mind the facts and circumstances, as discussed above, the application filed by the applicant Sh. Amar Chand Goel u/o 1 rule 10(2) CPC, stands allowed. The applicant is liable to be impleaded as defendant no.2 in the present case. In the above said terms, the application u/o 1 rule 10(2) CPC, stands disposed off."

5. Scope of interference in a petition under Article 227 of Constitution of India is discussed in the following judgments :

i. In Waryam Singh and Another v. Amarnath and Anr., AIR 1954 SC 45, the court observed; "This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in-"Dalmia Jain Airways Ltd. V. Sukumar Mukherjee", AIR 1951 CAL 193 (SB) l(B), to be exercised most sparingly and only in appropriate cases in order to keep the

Subordinate Courts within the bounds of their authority and not for correcting mere errors."

ii. In Mohammed Yusuf Vs. Faij Mohammad and Ors., 2009 (1) SCALE 71, Supreme Court held "The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the Learned trial court and Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety". iii. In State of West Bengal and Ors. Vs. Samar Kumar Sarkar, JT 2009 (11) SC 258 Supreme Court held "10. Under Article 227, the High Court has been given power of superintendence both in judicial as well as administrative matters over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It is in order to indicate the plentitude of the power conferred upon the High Court with respect to Courts and the Tribunals of every kind that the Constitution conferred the power of superintendence on the High Court. The power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution. Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence." iv. In Bathutmal Raichand Oswal Vs. Laxmibai R. Tarta, AIR 1975 SC 1297, the Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. High Court's function is limited to see that the subordinate court or Tribunal functioned within the limits of its authority. The Court further said that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise.

v. In Laxmikant Revchand Bhojwani and Anr. Vs. Pratapsing Mohansing Pardeshi Deceased through his Heirs and Legal representatives, JT 1995(7) SC 400, Apex Court observed "The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes."

6. After having considered the reasons given in the impugned order, material placed on record and settled law as referred above, I am not inclined to interfere with the impugned order passed by the learned trial court as there is no infirmity in the order. The petition is accordingly dismissed. Pending application also stands disposed of.

(MANMOHAN SINGH) JUDGE AUGUST 14, 2013