Banwari Lal Associates (P.) Ltd. vs Basanti Devi Family Trust and Others

Poonam Srivastava, J.—Heard Sri K. K. Arora, learned Counsel for the revisionist and Sri M. K. Gupta advocate for the caveator-respondents.

Sri M. K. Gupta submitted that this revision may be decided finally at this stage itself. As agreed between the parties, I proceed to decide this revision finally at this stage itself.

The respondents 1st set instituted a suit against the respondents IInd set in respect of the property bearing Municipal No. 3N/24 Nehru Nagar, Ambedkar Road, Ghaziabad for eviction of the defendant-revisionist. The plaintiff-landlords determined the tenancy w.e.f. 2.8.2004 on the basis of a notice sent through registered post and also by U.P.C. on 2.7.2004 and 3.7.2004. The possession over the suit property, which was a shop on the ground floor measuring 22'' x 20.6 feet on a monthly rent of Rs. 7,658, was claimed to be unauthorized w.e.f. 3.8.2004. The landlord-respondents claimed that the shop in question was constructed in the year 1988-89 and the first assessment was in the year 1990 and, therefore, the provisions of U.P. Act No, 13 of 1972 was not applicable. The arrears of rent claimed by the landlords was to the tune of Rs. 91,896. The suit was registered as S.C.C. Suit No. 33 of 2004. The suit was contested by the respondent Nos. 4 and 5 (arrayed as defendant Nos. 1 and 2 in the suit) by filing their separate written statement. The suit proceeded against the defendant Nos. 1 and 2 who filed their separate written statement. The revisionist on attaining knowledge regarding the aforesaid proceedings, filed an impleadment application under Order 1, Rule 10 read with Section 151, C.P.C. seeking impleadment in the plaint. It has been brought to my notice that due to inadvertence and typing error, the year of commencement of tenancy was typed as 1995 instead of the year 1992. The rent receipts were also attached with the said application. The statement of account of State Bank of India was also part of the affidavit filed in support of the said application to establish that the revisionist paid rent through an account payee cheque, which was cleared by the Bank from the accounts of the revisionist. The plaintiffs filed their objection to the aforesaid application which was numbered as 78 Ga. The said application has been dismissed by means of the impugned order.

Sri K.K. Arora has tried to elucidate the correct position that in fact there are two shops and not one and separate rent was being paid which constituted two separate tenements. One was M/s. Banwari Lal Associates Private Limited and rent receipts were being given in the name of Banwari Lal Electronics therefore, they were the necessary parties. In the event, a decree for eviction was passed, the right of the revisionist would stand considerably hampered. In support of his submissions, a number of decisions has been cited. Smt. Shail Kumari and Others Vs. Smt. Asha Srivastava and Others, and Umesh Chandra Saxena and Ors. v. Smt. Mohini Bajpayee and Ors. 2005 (4) AWC 3863 . It has been held in the aforesaid two decisions that while deciding an application under Order I, Rule 10, C.P.C., the facts and circumstances of each case should be seen. In the light of the judgment of this Court and the Apex Court, even if the party claiming impleadment is not a necessary party but they are proper party so that they may be bound by the judgments of the Courts, such persons must be allowed to participate in the proceedings to avoid multiplicity of litigation. The Apex Court in the case of Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, , held that a necessary party is one without whom no order can be made effective whereas a proper party is, in whose absence an effective order can be made but his presence is necessary for complete and final decision on the question involved in the proceeding. Similar view was expressed by the Apex Court in the cases of M/s. Aliji Monoji and Co. Vs. Lalji Mavji and others, ; The Chairman, Tamil Nadu Housing Board, Madras Vs. T.N. Ganapathy, and R. Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others, it was ruled that the word ''parties'' is not confined to only plaintiffs and defendants in the suit but would include all those who are interested in the adjudication of the suit. The decision of the suit does not bind only the parties named in the title of the suit but also all those whose interest is involved. Another decision of this Court relied upon by the counsel for the revisionist is Chaturbhuj Agarwal v. Arun Bhatiya and Ors. 2001 (42) ALR 10. This was a case u/s 21(1)(a) of the U.P. Act No. 13 of 1972. An application was filed by the third party to get himself impleaded as he claimed himself to be a tenant. This Court said that in the event, a person claiming himself to be a tenant files an impleadment application, he should be permitted to participate in the proceeding and his impleadment should not be refused.

The argument of Mr. K.K. Arora has been emphatically disputed by Sri M.K. Gupta. The submission is on the basis of provisions of Order XXI, Rules 97 and 99, C.P.C., Rule 97, C.P.C. relates to the resistance or obstruction to possession of immovable property in an execution proceeding and Rule 99, C.P.C. pertains to dispossession by decree holder or purchaser of any person other than the judgment debtor, if dispossessed from the immovable property or in the event the property has been sold in execution of the decree to which a person is not a party. In both the events, the Code provides that if any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions of Civil Procedure Code.

I am not in agreement with these submissions. Since it is apparent that by disallowing an impleadment application of a party who is able to prima facie establish that he is a necessary or proper party to an eviction suit, be deprived from participating in the suit proceeding only because he can challenge his eviction in the execution proceeding on a subsequent date. It is obvious that the Court by disallowing the person who claims himself to be a tenant to participate in the proceeding is opening an avenue for future unnecessary litigation. The Court should always consider the circumstances and make every endeavour to avoid unnecessary litigation which would necessarily result on account of refusal to permit a person to contest in the initial proceeding. Sri M.K. Gupta has also cited a number of decisions. Furkan Ahmad v. Sayed Ahmad Raza and Ors. 1995 (3) AWC 1420: 1995 (1) ARC 266; Surya Dev Rai v. Ram Chandra Rai and Anr. 2003 (2) ARC 385; Vijay Lata Sharma v. Raj Pal and Anr. 2004 (3) AWC 2679 (SC): 2004 (3) SCCD 1425: 2004 (2) ARC 524 ; Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, and Tanzeem-e-Sufia Vs. Bibi Haliman and Others, . The last two decisions are regarding Order XXI, Rules 97 and 99, C.P.C. where the Apex Court has ruled that a stranger can get his claim adjudicated even prior to losing possession to the decree holder. In fact the emphasis of Sri M.K. Gupta is that no prejudice has been caused to the revisionist by disallowing his impleadment application. In the event, a decree for eviction is passed, it will operate only against the defendant of the suit and none else.

I have considered the argument on behalf of the respective parties and gone through the various documents annexed with the affidavit filed in support of the stay application. A number of rent receipts have been shown to establish that the rent has been tendered by the revisionist which has been duly accepted by the plaintiff-respondents. The plaint has also been annexed as Annexure-1 to show that the defendants have been arrayed as partners of M/s. Banwari Lal Associates Private Limited or Banwari Lal Watch Company. The rent receipts also show that they have been issued in the name of Banwari Lal Associates Private Limited and Banwari Lal Electronics. Besides, a letter has been written by the revisionist on 7.1.1996 to the plaintiffs intimating her that the rent tendered through cheques in the month of January, 1996, has not been presented to her Bank for clearance. Thus, it is evident that overwhelming evidence has been brought on record to establish the interest in the suit of the present revisionist and in the event, an eviction decree is passed against the firm, he will have no other option but to abide by decree of the Court, In the circumstances, the refusal to implead the revisionist as a proper party to the suit will cause irreparable loss and only add to multiplicity of proceeding. In the circumstances, I am of the considered view that the impugned order is illegal and the Judge Small Causes Court has wrongly exercised his jurisdiction while refusing to implead the revisionist as a party.

For the reasons what has been discussed above, the impugned order dated 10.1.2006 passed by the Additional District Judge (Court No. 5), Ghaziabad in S.C.C. Suit No. 33 of 2004, M/s Basanti Devi Family Trust and Ors. v. Sri Mahesh Chand and Ors. is set aside. The revision is allowed. The revisionist shall be arrayed as one of the contesting defendants in the said suit and he will be permitted to participate and contest the proceeding. It is made clear that the Judge Small Causes Court, Ghaziabad, shall make every endeavour to decide the S.C.C. Suit No. 33 of 2004 expeditiously. The newly added party, i.e., present revisionist shall file his written statement within a period of two months from the date a certified copy of this order is produced before him.