Madhya Pradesh High Court
Sanjay Bavari vs Smt. Pratibha Mohta on 17 April, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:8505
1 MA-5037-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 17th OF APRIL, 2025
MISC. APPEAL No. 5037 of 2018
PRATIBHA MOHTA
Versus
M.P. STATE POWERLOOM BUNKAR SAHAKARI SANGH
MARYADIT MAIN BRANCH BURHANPUR ZILA PURV NIMMAD
THR.
Appearance:
Shri Anand Vinod Bhardwaj - learned counsel for the appellant.
Shri Mohan Lal Bansal- learned counsel for the respondent.
WITH
MISC. APPEAL No. 474 of 2019
SANJAY BAVARI AND OTHERS
Versus
SMT. PRATIBHA MOHTA AND OTHERS
Appearance:
None for the appellant.
Shri Anand Vinod Bhardwaj- learned counsel for respondent No.1.
Shri Mohan Lal Bansal- learned counsel for respondent No.2.
ORDER
1 . The appellant/plaintiff has filed M.A. No.5037/2018 challenging
judgment dated 22/10/2018 passed by 11 t h Additional District Judge,
Gwalior (M.P.) in Civil Suit No.31A/2016, whereby learned Appellate Court
after setting aside the judgment and decree passed by the Trial Court has
remanded the matter to the Trial Court for fresh adjudication after
impleading Sanjay Bavari and others who have subsequently acquired
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possession of the suit property from the respondent/defendant. Appellant-
Sanjay Bavari and others have filed M.A. No.474/2019 against the aforesaid
judgment wherein they have been directed to be impleaded as party in the
suit.
2. The facts, in short, which are relevant for decision of this case are
that the appellant/plaintiff has filed the suit for eviction against the
respondent/defendant on various grounds under the M.P. Accommodation
Control Act, 1961.
3. Learned Trial Court vide order dated 16/01/2018 dismissed the suit
holding that relationship of landlord and tenant is not established and
therefore, plaintiff is not entitled to get decree of eviction against the
defendant. Being aggrieved, the appellant filed the regular appeal which has
been decided by the impugned judgment.
4 . Learned counsel for the appellant submits that learned Appellate
Court has remanded the matter to the trial Court with direction to decide the
issue of title again. It has been further directed that persons who have
acquired possession of the suit property from the defendant would be
impleaded as party in the suit and after giving them an opportunity of
hearing, the suit be decided afresh.
5. Learned counsel for the appellant submits that instant l i s is in
between the plaintiff and defendant only. It is his submission that defendant
has accepted his title in para 21 of his written statement which is also
observed by the Appellate Court in para 13 of its judgment. He submits that
the suit for eviction has to be decided on the basis of pleadings of the
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plaintiff and defendant only and even if the defendant has delivered
possession of the property to the 3rd person during the pendency of the suit,
that would not affect the plaintiffs right to get the decree of eviction. He
placed reliance upon the judgment passed by this Court in the case of Sudha
Gupta and others Vs. Ramesh Kumar Sachdeva (dead) through L.Rs. Smt.
Reshma and others reported in 2017 (3) MPLJ 425 .
6. On the other hand, learned counsel for the respondent opposes the
prayer made by the learned counsel for the appellant and submits that since
he has already delivered possession to a third person, no decree for eviction
can be passed against him.
7. Considered the arguments and perused the record.
8. Before adverting to the facts of this Court, it is profitable to refer
the decision of the Apex Court in the case of Vijay Lata Sharma Vs. Raj Pal
and another reported in AIR 2004 SC 4390 wherein the Apex Court has
considered the law with regard to impleadment of a third party in suit for
eviction. In paragraph 6 & 9, the Apex Court has held as under :-
"6. We have heard the learned counsel for the parties. The
learned counsel for the appellant contended that respondent No. 2
is neither necessary nor proper party to the proceedings. He,
therefore, could not be joined as party respondent in the
proceedings under the Act. It was also submitted that the
Authority under the Act has no jurisdiction to decide "title" to the
property and the only question it has to consider is as to whether
the "landlord" is entitled to possession on the grounds mentioned
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in the application for eviction. The counsel also submitted that it
was not even the case of respondent No. 1 that the appellant and
her mother were entitled to rent. On the contrary, it was admitted
by him that the rent was paid to them. In the circumstances, the
order passed by the Prescribed Authority and confirmed by the
High Court deserves to be set aside.
9. In our view, in the facts and circumstances as mentioned
in the release application and also the stand taken by the tenant in
written statement and keeping in view the definition of "landlord"
in section 3(j), respondent No. 2 can neither be said to be
necessary nor proper party to the proceedings. The question of title
cannot be decided by the Prescribed Authority under the Act. The
orders passed by the Prescribed Authority as well as the High
Court, therefore, deserve to be quashed and set aside."
9. Further the Division Bench of this Court in the case of Sunil Vs.
Satyanarayan Dubey reported in 1986 M.P.L.J. 465 has held as under:-
"The suit is between a landlord and a tenant based on the
contract of tenancy. The suit of the plaintiff-landlord would
succeed or fail on the proof or disproof of the contract of tenancy.
It is a trite law that in a suit based on a contract of tenancy, the
question of title cannot be gone into. If the applicants are allowed
to be joined as a party, it would necessarily result in permitting the
raising of a controversy as to the title to the suit accommodation,
i.e., whether the applicants are also the owners of the suit
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accommodation and whether the defendants in the suit had the
right to create the mortgage in question and whether that is
binding on these applicants. This would, no doubt, alter the nature
of the suit and also enlarge its scope. For deciding the suit as filed
by the plaintiff non-applicant No. 1 herein it is not necessary to
adjudicate upon and settle the controversy on the basis of which
the applicants pray for being joined as a necessary party. The
plaintiff non-applicant No. 1 herein has claimed no relief against
the present applicants. The plaintiff is the dominus litis and cannot
be forced to add parties against whom he does not want to fight
unless it is a compulsion of the rule of law. The plaintiff cannot be
required to alter the nature of the suit and enlarge its scope on the
ground that the addition of the party would avoid multiplicity of
suits.
Learned counsel for the applicants had contended, relying
on section 23 of the M. P. Accommodation Control Act, 1961 (for
short, hereinafter referred to as 'the Act') that if they are not joined
as parities and a decree is passed in the present suit against the
defendants, who are non-applicants No. 2 and 3 herein, the
applicants would be ejected in the execution of that decree and,
therefore, to protect their interest it is necessary that they should
be joined as a party to the suit. The judgment that would be passed
in the suit would be a judgment in personum and not a judgment in
rem. It is a trite law that a decree, which is a decree in personum
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would not bind persons who are not parties to the suit and who do
not claim under the parties to the suit. The argument of the learned
counsel for the applicants is based on an incorrect reading of
section 23 of the Act."
10. From the aforesaid enunciation of law, it is clear that in a suit for
eviction only the landlord and tenant are the necessary party. Third party is
not the necessary or proper party in the suit.
11. It is the case where the appellant has filed the suit for eviction
against the respondents. It has come on record that the respondent has
accepted the appellant's title over the suit property. Thus, the Court was
required to adjudicate the suit on the basis of pleadings and the evidence led
by the parties to the suit. If during the pendency of lis, defendant/respondent
has handed over possession of the property to someone else, the issue as to
whether appellant is entitled to recover possession of the property from the
said third party has to be looked into at the appropriate stage when the
possession of the property is to be taken. It is settled proposition of law that
plaintiff is the dominus litis of the suit and if he fails to implead a necessary
party, he has to suffer the consequences of the same. Further, the person who
has been directed to be impleaded as party i.e. appellants in M.A. No.474 of
2019 are also aggrieved and does not want to be impleaded as defendant in
the suit.
12. Therefore, learned Appellate Court erred in remanding the matter
to the Trial Court directing impleadment of appellants in M.A. No.474 of
2019 who are stranger so far as present lis is concerned. Accordingly the
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impugned judgment dated 22/10/2018 is set-aside. The matter is remitted to
the Appellate Court for deciding the appeal based upon the pleadings and
evidence already available on record and pass the judgement on merits of the
case.
13. Parties are directed to appear before the Trial Court on 05/05/2025.
Learned Appellate Court shall make endeavour to decide the suit
expeditiously.
14. With the aforesaid, the instant miscellaneous appeals are disposed
off.
(ASHISH SHROTI)
JUDGE
rahul
