Gh.Ahmed Sofi and Others vs Mohd.Ayub Khan and Another

Revision petitioners have filed suit for ejectment and recovery of arrears of rent and compensation against Mohd. Ayub Khan proprietor of M/s

M.S. Motothers in respect of 8160 sq. ft. of land under survey no. 1422/773 of Khewat no. 202 situated at Kadalbal Pampore. The suit land is

alleged in possession of the said defendant as lessee for running his motor work shop business for repairs and sale of spare parts of vehicles under

the name and style M/s Ayub Motothers, on terms and conditions incorporated in the lease deed executed between parties thereto on 18.7.94.

During pendency of this suit respondent no. 2 (J and K State Financial Corporation, through its Chief Manager at Pulwama) filed an application on

22.7.2000 for being impleaded as party. The trial court of District Judge, Pulwama after hearing the parties allowed the application and ordered

for impleadment of J and K State Financial Corporation, Srinagar as codefendant in the main suit. This order dated 17.10.2000 of Ld. District

Judge, Pulwama is impugned in this revision petition.

Respondents despite being served failed to appear. Counsel for revision petitioner is heard.

The counsel submits that the petitioner filed simple suit for ejectment and recovery of rent with penalty in respect of suit land. Delivery of

physical possession of premises on expiry of stipulated seven years. Lease period on 15.4.2000 is prayed for. The trial court on misconstruing the

law allowed the application for impleadment of J and K State Financial Corporation as party on a misconception of facts. The earlier lease for 15

years executed on 21.12.1984 in favour of M.A. Motor Corporation, a partnership concern, was taken as the lease in question to show that the J

and K Financial Corporation with whom the M.A. Motor Corporation mortgaged the land and unit after loan was obtained from it was a

necessary party. The nature of the suit is changed in so far as in pure ejectment suit based on lease deed and afflux of lease period, liability incurred

towards J and K Financial Corporation by the earlier lessee of plaintiffs is sought to be adjudicated in the suit. It would prolong the litigation.

There is no dispute that plaintiff as the dominouslitus has the choice as to whom he has to implead as defendant to the suit. But all the same. It is

open to the court at any stage of the proceedings to order that the name of any person be added as a defendant. However, this discretionary

power is to be exercised with circumspection and on condition that the presence of such added person is necessary in order to enable the court to

effectively and completely adjudicate upon and settle all questions involved in the suit. It is equally well settled preposition of law that the defendant

cannot be added if such permission results in causing serious prejudice to the plaintiff or introduce a new cause of action so as to widen the issue(s)

required to be adjudicated and settled in the suit. The question to be seen is if the issue(s) in the suit can be worked out without J and K Financial

Corporation being brought on record as party defendant. In so far as corporation claims to have prior charge over the land and the unit, as

mortgaged/ hypothecated premises with the J and K Financial Corporation as security for the loan advanced to establish the unit on spot, the

corporation has right to follow the premises and unit so long the liability is not met by the debtor/ loanee or payment is not made of the outstanding

loan amount.

Trial court of District Judge, Pulwama has found that the earlier lease of December, 1984 was subsisting and the premises, the lease hold was

with unit M/s Ayub Motor Corporation who executed a mortgage deed in favour of the State Financial Corporation while borrowing loan and

money from the latter for setting up of the unit. The lessee (s) had the legal competence under Section 108 of Transfer of Property Act to mortgage

the lease hold rights of the premises with J and K State Financial Corporation in respect of the suit land. Obviously ejectment of the defendant(s)

without allowing State Financial Corporation as party would in the last analysis adversely affect the rights of the corporation, thereby the question

involved in the suit cannot be worked out without corporation being brought on record as codefendant. The plaintiff lessees cannot bypass the

interests of corporation and defeat its right to proceed against the premises for recovery of outstanding loan amount granted on the strength of

mortgage of the premises, the suit land and unit apart from proceeding against loanee in person. Without ultimate decision on the issues involved,

petitioners cannot take the premises as if free from all encumbrances and prior charge created thereto under law. Viewed thus the exercise of

discretionary powers by the Learned District Judge cannot be said to be jurisdictional error or exercise of jurisdiction with material irregularity. No

legal infirmity is attached to the impugned order.

Ld. counsel has cited Balwant Raiss case (AIR 1978 J and K 84) for the preposition that the Financial Corporation cannot be added as party in

the suit. However, this authority is not applicable to this case in so far as it turns out on its own facts. A Single Bench of this court held that in suit

for ejectment where landlord defendant set up his title, a third party claiming title cannot be added as party to the suit. Obviously the case has no

parallel with the present case at hand and the two fall for apart.

Counsel has also referred Jagdamba Prasad vs. Umashankar Pandey and Others (1998 (4) SCC 573 M.P.). This case arise out of suit for

specific performance where a stranger to the agreement sought impleadment on ground of claim adverse to the title of the vendor. The court

refused such person to be impleaded as defendant. The legal proposition has no application to the facts of this case.

Another case cited is Anil Kumar Singh vs. Shivnath Mishra (1994(3) SCC 542). The authority also deals with question of impleadment of a

party in a suit for specific performance where such party is a stranger to the agreement of sale, that is he is not a party to the agreement for sale

even if such party has interest in the property by an independant decree. Their Lordships observed :

Subrule(2) of Rule 10 of Order 1 says that ""necessary parties are persons who ought to have been joined as a party to the suit a necessity to the

constitution of the proper suit without whom no relief or order can be passed. In order that a person may be considered a necessary party,

defendant to the suit, the conditions precedent must be (1) that there must be a right to some relief against him in respect of the dispute involved in

the suit and (2) that his presence should be necessary to enable the court to effectually and completely to adjudicate upon and settle all the question

involved in the suit. Since the respondent is not a party to the agreement of sale, it cannot be said that without her presence the dispute as to

specific performance cannot be determined. Therefore, she is not a necessary party"".

Obviously factial basis as also restatement of legal preposition is not applicable to this case.

Similarly Ramesh Hiranad Kundanmal vs. Municipal Corporation of Greater Bombay and Others (1992 (1) SCC 594) cited at bar is an

authority for the preposition that a person cannot be added as party on the ground he has evidence to show that the constructions are

unauthorised. He can at the best be a necessary witness. Obviously, again not applicable to this case.

Yet another case cited is Krishan Lal vs. Tek Chand (AIR 1987 PandH 197). The authority again deals with question of adding a party in a

suit for specific performance of contract and the settled principle that a person stranger to the agreement to sell, is not entitled to be impleaded as a

defendant.

In result, the revision petition cannot succeed and is dismissed. Inform court below of this order.