Smt. Rinu vs Santosh Kumar Mewara And Ors
2022 Latest Caselaw 1998 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4161/2016

Smt. Rinu

----Petitioner Versus Santosh Kumar Mewara And Ors

----Respondent

For Petitioner(s) : Mr. J. Gehlot, on VC. For Respondent(s) : Mr. C.P. Soni, on VC.

Mr. Girish Sankhla, on VC.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

05/02/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, lawyers have been advised

to refrain from coming to Courts.

2. This writ petition has been preferred claiming the following

reliefs:

"(i) The impugned order dated 05/04/2016 i.e. Annexure 10 be set aside.

(ii) The Application under order 1 Rule 10 CPC of the respondent be dismiss."

3. As the pleaded facts would reveal, in a dispute between the

landlord and the tenant before the learned Rent Tribunal,

regarding eviction of the tenant on the ground that the landlord

has a personal and bonafide necessity of the premises in question,

an application was made by one Smt. Kamala Devi to be

impleaded as a party in the suit before the learned Tribunal which

by way of the impugned order dated 05.04.2016 was allowed.

(2 of 7) [CW-4161/2016]

4. Learned counsel for the petitioner submits that the petitioner

has approached this Court against the impugned order allowing

the impleadment of respondent No. 3 by the learned Tribunal, and

that such order suffers from infirmity that the respondent No.3

does not need to be impleaded as a party.

5. Learned counsel for the petitioner further submits that the

petitioner is the landlady of the property in dispute, and the

relevant and necessary parties to the suit are only herself and

respondent No. 1. Learned counsel also submits that the petitioner

filed a preliminary objection to the application made by the

respondent No. 3 under Order 1 Rule 10 CPC seeking impleadment

to the said suit before the learned Tribunal.

6. Learned counsel for the petitioner also submits that the

learned Tribunal, vide the impugned order dated 05.04.2016,

wrongly ascertained and found the respondent No. 3, Smt. Kamala

Devi to be the owner of the property in dispute.

7. Learned counsel for the petitioner relies upon the following

judgments:

Kasturi Radhakrishan and others Vs. M. Chinniyan and

another AIR 2016 SC 609, wherein the Hon'ble Apex Court

observed thus:

"37. Coming to the first question, in our considered opinion, the High Court erred in holding that the daughter of late A. Radhakrishnan, i.e., Tmt. R. Kanjana was a necessary party to the eviction petition filed by the Appellants and hence failure to implead her rendered the eviction petition as not maintainable. This finding of the High Court, in our view, is against the law laid down by

(3 of 7) [CW-4161/2016]

this Court in the case of Dhannalal (supra), wherein it is laid down that it is not necessary to implead all the co- owners in the eviction petition."

Kanaklata Das and others vs. Naba Kumar Das and others AIR 2018 SC 682, wherein the Hon'ble Apex Court observed thus:

"20. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant.

28. In view of the foregoing discussion, the appeal succeeds and is allowed. The impugned order is set aside and the order of the Trial Court is restored.

29. As a consequence, the application filed by Respondent No. 1 Under Order 1 Rule 10(2) of the Code in the aforementioned ejectment suit is dismissed."

8. On the other hand, learned counsel for the respondent

No.3 submits that it is absolutely essential for a necessary

party to be impleaded in a suit, wherein the said party is

found to have an interest in the suit property, and that such is

the case in the instant petition, and that the learned Tribunal

has rightly allowed respondent No. 3-Smt. Kamala Devi's

application under Order 1 Rule 10 CPC.

9. Learned counsel for the respondent no. 3, in support of

his submissions, relied on the following judgments:

(4 of 7) [CW-4161/2016]

Saroj Devi Vs. Mukesh Kumar D.B. Civil Special

Appeal No. 1107 of 2006, wherein the Hon'ble Division

Bench of this Court, observed as under:

"5. It is well settled that the question of impleadment of a party is to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. Mere interest of a party in the fruits of litigation cannot be a true test for his being impleaded as a party. The object of the rule is not to change the scope or character of the suit by adding new parties and to enable them to litigate their own independent claims but simply to hold them to avoid unnecessary litigation which might become necessary.

6. The object of order Order 1 Rule 10 CPC was explained by the Supreme Court in Amit Kumar Shaw v. Farida Khatoon (2005) 11 SCC 403, thus:-

"The object of Order Rule 10 is to discourage contests on technical pleas, and to save honest and bonafide claimants from being non suited. The power to strike out or add parties can be exercised by the court at any stage of the proceedings. Under these rules, a person may be added as a party to a suit in the following two cases:

(1) When he ought to have been jointed as plaintiff or defendant, and is not joint so or,

(2) When, without his presence, the question in the suit cannot be completely decided"

9. In Hardeva v. Ismail (AIR 1970 Raj. 167) Full Bench of this Court held that the presence of the person added

(5 of 7) [CW-4161/2016]

must be necessary to effectually and completely adjudicate upon and settle all points involved in the suit."

Laxman and Ors. vs. Shri Raj Kumar & Anr. 2007 (4)

RLW 3046 :2015 CJ (Rent Control) 268, wherein a

Coordinate Bench of this Court observed thus:

"7. The application stands rejected by the Rent Tribunal observing that in the petition filed for eviction, the question of ownership of the premises is not required to be gone into and therefore, any dispute existing between the parties regarding the ownership over the disputed premises is of no relevance.

11. ... It is also not in dispute that the petition filed by the respondent no. 1 seeking eviction of the tenant relates to the same premises and therefore, the temporary injunction granted in the terms indicated above by the Court being operative, if any order directing eviction of tenant from the premises is passed by the Rent Tribunal, it is likely to be in conflict with the injunction granted by the Civil Court. That apart, the issue with regard to the landlord and tenant relationship in respect of the premises in question being also directly involved in the pending suit, in the considered opinion of this Court, if not necessary party, at least the petitioners are proper party in the matter and for complete and effectual adjudication of the controversy involved as also to avoid any conflicting order being passed in two proceedings pending before different fora, it is appropriate that the petitioners are impleaded as party respondents in the rent petition preferred by the respondent no. 1 herein against the respondent no.2."

(6 of 7) [CW-4161/2016]

10. After hearing learned counsel for the parties as well as

perusing the record of the case, alongwith the judgments cited

above, this Court observes as follows:

(a) The learned Tribunal rightly allowed the Order 1 Rule 10

application made by respondent No.3, Smt. Kamala Devi, after

finding that she had an interest in the title of the suit property.

(b) The learned Tribunal has passed a detailed and speaking

order i.e. impugned order dated 05.04.2016, wherein it has

fairly observed that in the interest of justice and to avoid

multiplicity of litigation, the necessary party must be

impleaded to the suit in question, and that such a necessary

party may be impleaded to such a suit, at any stage of the

trial.

11. This Court further observes that the learned Tribunal has,

on reasonable and fair grounds, allowed the application of the

respondent No. 3 for impleadment as a necessary party to the

suit vide the impugned order dated 05.04.2016. Furthermore,

this Court observes that in order to ensure that the suit did

not suffer from non-joinder of the relevant and necessary

party, the said order of allowing the impleadment of the

respondent No. 3 in no way prejudices the interests and rights

of the present petitioner, which will be finally decided by the

learned Tribunal.

12. This Court finds that the decisions rendered by the

Hon'ble Apex Court in Kasturi (supra) and Kanaklata

(supra), wherein the issue was regarding impleadment of co-

owners in the suits, do not apply to the case at hand, as the

issue herein is not that of co-ownership, but is regarding the

(7 of 7) [CW-4161/2016]

interest of sole ownership of the property in dispute, of one

party i.e. the petitioner against that of the another party i.e.

the respondent No. 3.

13. This Court also observes that the Hon'ble Division Bench

of this Court in Saroj Devi (supra) relying on the judgment

rendered by the Hon'ble Apex Court in Amit Kumar Shaw

(supra) held that the object of Order 1 Rule 10 CPC is to save

honest and bonafide claimants from being non-suited; and the

same was followed by the Hon'ble Coordinate Bench of this

Court in Laxman (supra).

14. In light of the aforesaid observations, this Court does not

find it a fit case so as to warrant any interference under the

writ jurisdiction, and therefore, upholds the impugned order

passed by the learned Tribunal.

15. Consequently, the present petition is dismissed. All

pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J.

48-skant/-

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