Unknown vs Vijay Kala And Others") For ...
2022 Latest Caselaw 3519 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                   04th NOVEMBER, 2022

       IMPLEADMENT APPLICATION NO. 4386 of 2022

                              IN

               CIVIL REVISION No. 16 of 2020

Between:

Mayur Gupta.                                   ...Revisionist


and

Smt. Beena Goyal and Another.                ...Respondents


Counsel for the Revisionist          :Mr. Bhupesh Kandpal,
                                      Advocate with Ms.
                                      Gurbani    Singh,
                                      Advocate.

Counsel for the Respondents          :Mr. Ramji Shrivastava,
                                      Advocate with Ms. Reema
                                      Rana, Advocate.

Counsel for the Applicant       in   :Mr. T.A. Khan, Senior
Impleadment Application               Advocate assisted by Mr.
                                      Vinay Bhatt, Advocate.


Hon'ble Alok Kumar Verma,J.

The respondents-plaintiffs instituted a SCC Suit (No.50 of 2017), under the provisions of the Provincial Small Cause Courts Act, 1887, seeking ejectment of the revisionist-defendant from the suit property and also claiming arrears of rent and mesne profits. The said SCC Suit has been decreed on 16.09.2019.

2. Against the said judgment and decree dated 16.09.2019, the present Revision has been filed by the tenant revisionist-defendant.

3. During the pendency of the present Revision, the said Impleadment Application (IA No. 4386 of 2022) has been filed by Darbar Shri Guru Ram Rai Jhanda Sahib, Dehradun (for the sake of convenience, the intervener will be referred to as "applicant") with the averments that the applicant is the actual owner of the suit property.

4. Mr. Bhupesh Kandpal, learned counsel for the revisionist, submitted that the applicant, namely, Darbar Shri Guru Ram Rai Jhanda Sahib, Dehradun is actual owner of the suit property, therefore, the revisionist has no objection on the Impleadment Application.

5. Mr. Ramji Srivastava, learned counsel for the respondents-plaintiffs, opposed the said Impleadment Application.

6. Heard learned counsel for the parties and perused the record.

7. Mr. T.A. Khan, learned Senior Advocate appearing for the applicant, submitted that the applicant is the actual owner of the suit property. A Patta (lease deed) was executed between the applicant and one late Smt. Champa Devi on 03.07.1964. Smt. Champa Devi was merely a tenant and she had no right to transfer the suit property without the prior permission of the applicant, but, she had executed a Will of the suit property in favour of one Mr. Vijay Kala and Smt. Jaya Yadav. Smt. Champa Devi died on 23.02.1992. Mr. Vijay Kala, without any authority, had executed a sale deed dated 08.05.2015 of the suit property in favour of the present respondents. The applicant is a real owner. However, the respondents- plaintiffs in collusion with the revisionist-defendant had filed the said SCC Suit and they are trying to sell the property of the applicant. Therefore, the applicant has filed

an Original Suit (No. 76 of 2021, "Darbar Guru Ram Rai Vs. Vijay Kala and Others") for cancellation of the said lease deed, Will, and, the said sale deed. The said Original Suit is still pending.

8. Learned Senior Advocate submitted that in the said circumstances, the applicant is a necessary and a proper party in the present matter. In support of the said submission, learned senior advocate has relied upon a judgment of the Hon'ble Supreme Court, passed in "Budhu Mal Vs. Mahabir Prasad & Ors.", 1988 AIR 1772, and a judgment of Hon'ble Allahabad High Court in "Acharya Narendra Dev Memorial Committee Vs. District Judge, Meerut and others", 2007 (2) ARC 757".

9. On the other hand, Mr. Ramji Srivastava, learned counsel for the respondents, opposed the said submissions of the learned Senior Advocate, appearing for the applicant, and submitted that the applicant is neither a necessary party nor a proper party to this Revision. The learned counsel appearing for the respondents-plaintiffs further submitted that the said rulings, cited by learned Senior Advocate, are not applicable in the facts and circumstances of the present matter, and, he has relied upon a judgment of the Hon'ble Supreme Court, passed in "Kanaklata Das and Others Vs. Naba Kumar Das and Others", (2018) 2 SCC 352".

10. At this stage of the present Revision, the question arises for determination is whether the applicant is a necessary party or a proper party to this Revision and so the applicant should be impleaded as a party.

11. A "necessary party" is a person who ought to have been joined as a party and in whose absence no

effective order can be passed by the Court and a "proper party" is a party who though not a necessary party, is a person whose presence is considered appropriate for effective decision of the case. When a person is neither a necessary party nor a proper party and his presence is not required for any complete and effective adjudication of the question involved in the matter, he cannot be impleaded merely because he wishes so.

12. In Budhu Mal (Supra), the fact was that respondent Mahabir Prasad had executed a registered deed dated 8th December, 1966 with regard to premises- in-question, giving the benefits arising out of the said properties to his grandsons and their mother Smt. Sulochana Devi. He informed the tenants to make payment of rent to Smt. Sulochana Devi in terms of the said deed. Later, Mahabir Prasad executed a registered deed of cancellation dated 3rd November, 1970, cancelling the aforesaid deed dated 8th December, 1966 and debarring the grandsons and their mother from the right to realize rent and informed the tenants about the said deed of cancellation. Subsequently, Mahabir Prasad instituted suits in the Court of the Judge, Small Causes against the appellant-tenants for recovery of arrears of rent and their eviction on the ground that in spite of their being informed of the deed of cancellation, they had not paid rent to him. The appellants contended that the deed dated 8th December, 1966, could not be unilaterally cancelled by Mahabir Prasad, and the rent claimed by him had already been paid by them to Smt. Sulochana Devi. The title of Mahabir Prasad to realize rent was disputed by the appellants who had contended that the suit involving a question of title was not cognizable by a Court of Small Causes. The Hon'ble Supreme Court has held that the

provisions of Section 23 of the Provincial Small Cause Courts Act were clearly attracted in these cases and the plaints in the cases ought to have been returned for presentation to a Court having jurisdiction to determine the title.

13. In Acharya Narendra Dev Memorial Committee (Supra), the respondent no.3 instituted a suit against the respondent no.4 for ejectment on the ground of arrears of rent. The petitioner made an application for impleadment wherein he has stated that the petitioner is owner of the premises-in-question and the rent was being paid to him.

14. In the present matter, admittedly, the revisionist was tenant of the respondents. The revisionist- defendant has admitted in his written statement that the respondents are landlord and the revisionist-defendant is their tenant. Therefore, the said two judgments, cited by the learned Senior Advocate, appearing for the applicant, are not applicable in the facts of this case.

15. In Kanaklata Das and Others (Supra), the Hon'ble Supreme Court lays down the following principles:-

"11.1. First, in an eviction suit filed by the plaintiff (landlord) against the defendant (tenant) under the State Rent Act, the landlord and tenant are the only necessary parties. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant. 11.2. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff landlord has sought defendant tenant's eviction under the Rent Act exists. When

these two things are proved, the eviction suit succeeds.

11.3. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See-Ranbir Singh v. Asharfi Lal).

11.4. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. (See- Ruma Chakraborty v. Sudha Rani Banerjee).

11.5. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. (See- Udit Narain Singh Malpaharia v. Board of Revenue).

11.6. 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. (See- Kasthuri Radhakrishnan v. M. Chinniyan)."

16. In Kanaklata Das and Others (Supra), the fact was that the appellants had filed a suit for ejectment against the respondent nos. 2 to 5 before the Small Cause Court for their eviction on the grounds of non-payment of rent, sub-letting, and bona fide need of the suit premises

for their personal use. Respondent no.1 filed an application under Order I Rule 10(2) of the Code praying therein that he may be allowed to become the co-plaintiff along with the appellants. Respondent no.1 sought his impleadment alleging that he is a member of the appellants' family and being so, has a right, title and interest not only in the suit premises but also in other family properties as one of the co-owners. The Hon'ble Supreme Court has held that the lis in the suit is between the appellants on the one hand and respondents 2 to 5 on the other hand and the decision in the suit would depend upon the question as to whether there exists any relationship of landlord and tenant between the appellants and respondents 2 to 5 in relation to the suit premises and, if so, whether the grounds pleaded in the plaint for claiming eviction of respondents 2 to 5 are established or not. For deciding these two main questions, the presence of respondent 1 is not necessary. The Hon'ble Supreme Court held that the respondent 1 is neither a necessary and nor a proper party in the suit.

17. Therefore, it is well settled that in an eviction suit, the landlord and the tenant are the only necessary parties. In an eviction suit, filed by the landlord, title of ownership of the landlord is not relevant.

18. Keeping in mind the said settled principles of law, this Court is not inclined to allow the Impleadment Application. Therefore, the said Impleadment Application (No.4386 of 2022) is dismissed accordingly.

19. List this case on 28.11.2022 for final hearing.

___________________ ALOK KUMAR VERMA, J.

Dated: 04.11.2022 PN/-