Jagdeesh Prasad Gupta vs Madan Lal and Others

U.C. Maheshwari, J.—Although this case is listed today for admission and consideration of the stay application but in the available scenario of the matter, with the consent of the parties, the same is heard finally. The petitioner/plaintiff has filed this petition under Article 227 of Constitution of India, being aggrieved by the order dated 23.04.12 (Annexure P-6) passed by 6th Civil Judge Class-II, Sagar, in C.O.S. No. 10-A/12, allowing application of the respondents no. 4 to 6 filed under Order 1 Rule 10 of the C.P.C., permitting them to implead as a party in the matter and pursuant to it, such respondents no. 4 to 6 have been directed to be impleaded as defendants in the suit of the present petitioner.

The petitioner''s counsel after taking me through the petition as well as the papers placed on record along with impugned order, submits that the present petitioner being co-owner of the disputed premises has filed the impugned suit for eviction against the respondents no. 1 to 3 without impleading the respondents no. 4 to 6 as party in the suit. In continuation he said that as per settled proposition of law one co-owner can very well file eviction suit against the tenant without impleading any co-owner as party in the suit. So in such premises, even in the absence of the respondents no. 4 to 6, the eviction suit could be adjudicated effectively only in presence of the petitioner. He further argued that it is apparent from the application that the respondents no. 4 to 6 have not come with any specific cause of action against the respondents no. 1 to 3 to file the aforesaid suit or to support the petitioner in the impugned suit. In such premises, also only in presence of petitioner and the respondents no. 1 to 3, the effective decree of eviction could be passed and the presence of respondents no. 4 to 6 is not necessary. As such tenant has no right to challenge the right of the land lordship of the co-owner with respect of disputed premises. He has also said that in case, he is failed in proving his land lordship of the premises in dispute in the lack of impleading the respondents no. 4 to 6 then in that situation his suit may be dismissed by the trial court. Thus, in such premises also the presence of respondents no. 4 to 6 are not required. He further argued that besides the aforesaid settled proposition of law, the petitioner/plaintiff being sole dominus litus of his suit could not be insisted to join any other person like respondents no. 4 to 6 as defendant or plaintiff in the present matter. With these submissions, he prayed for setting aside the impugned order by dismissing the application of respondents no. 4 to 6 by allowing this petition.

The aforesaid prayer is opposed by Shri Manoj Sanghi, learned counsel for the respondents no. 1 to 4 saying that the respondents no. 4 to 6 being co-owner of the property have every right to join the proceedings filed against the tenant or any other person with respect of their property, as such in their absence no effective decree could be passed against tenant in civil litigation. In continuation, he said that mere on the whims of the petitioner/plaintiff, the respondents no. 4 to 6 could not be deprived to keep their continue observation to protect their right in the impugned suit and in such premises, the trial court has not committed any error in allowing the application of respondents no. 4 to 6 and prayed for dismissal of this petition.

Having heard, keeping in view the arguments, I have carefully gone through the papers annexed with the petition along with the impugned order. Prima facie it appears that the respondents no. 4 to 6 are co-owner of the property with the petitioner in which the respondents no. 1 to 3 being tenant is in possession. In such premises, the present petitioner being co-owner of the property had a right to file the impugned suit for eviction against the respondents no. 1 to 3 without impleading the respondents no. 4 to 6 or even without their consent in this regard.

In the aforesaid circumstances, to consider the impugned application of the respondents no. 4 to 6, the trial court ought to have considered the fact stated in such application, according to which no cause of action to file the impugned suit against the tenant respondents no. 1 to 3 have been stated. In the lack of any such cause of action the presence of respondents no. 4 to 6 to adjudicate the impugned suit is not required. On the other hand the petitioner/plaintiff has filed the impugned suit being co-owner/land lord of the property by mentioning the available cause of action to him. As per settled proposition of law as laid down by the Apex Court ''in the matter of Sri Ram Pasricha Vs. Jagannath and Others, , holding that the suit filed by the co-owner is entertainable and could be decreed because co-owner is owner of every part of the property along with the other co-owners unless the property is divided or partitioned between them.

Keeping in view the aforesaid principle, on examining the case at hand, I have not found any circumstance in the matter in which it could be held that in the suit between co-owner land lord the petitioner and the tenant the respondents no. 1 to 3, the presence of the alleged co-owners the respondents no. 1 to 3 is necessary to adjudicate the suit.

It is also made clear that after holding the trial on appreciation, if it is found that the petitioner/plaintiff was not entitled to file the suit alone for eviction then in that situation the petitioner has to face the consequence of dismissal of the suit. So in such premises also, the presence of the respondents no. 4 to 6 is not necessary in the impugned matter.

Apart from above, it is settled proposition of law that the petitioner/ plaintiff being sole dominus litus of his suit/litigation could not be insisted either by the court or some other persons to implead any other person like the respondents no. 4 to 6 in his suit either as plaintiff or the defendant, specially when he is ready to face all the consequences of the absence of co-owners of the property on the record. Therefore, in this premises also, the impugned order could not be sustained at this stage. In view of the aforesaid discussion by allowing this petition, the impugned order dated 23.04.12 (Annexure P-6), is hereby set aside. Consequently, the application of the respondents no. 4 to 6 (Annexure P-4), is hereby dismissed. While dismissing the application, it is made clear that the respondents no. 1 to 3 shall be at liberty to take all the probable and available defense in the matter including the defense that suit is not maintainable in the absence of other co-owner but such question shall be considered by the trial court after recording the evidence at the stage of appreciation in accordance with the procedure prescribed under the law and also without influencing from any observations or findings made by such court in the order impugned or by this court in the present order because the impugned order has been passed at the interlocutory stage of the suit and before recording the evidence on merits.

The petition is allowed as indicated as indicated above.