Laxmi Prasad Sah vs Fatima Bibi And Ors

Heard Mr. Mayank Mohit, learned counsel for the petitioner and Mr. Sumit Kumar, learned counsel appearing for the respondent no. 2.

This writ application is directed against the order dated 21.01.2009 passed by the learned Sub Judge - I, Deoghar in Title (Eviction) Suit No. 1 of 2008 by which the prayer of the respondent no. 2 for impleading her as a defendant has been allowed.

The petitioner claims himself to be the owner and landlord of Holding No. 164 Ward No. 5 of Deoghar Municipality who had inducted the respondent no. 1 Fatima Bibi as a tenant in the shop premises at the rate of Rs. 24/- per month. The petitioner claims that the respondent no. 1 had committed a default in payment of rent and since there was a personal necessity of the petitioner a suit was filed with a prayer for eviction of the defendant from the suit premises or any persons occupying the suit premises on behalf of the plaintiff as also for a decree of Rs. 864/-, the arrear of rent, pendelite and current rent. The defendant although had appeared but they had not filed the written statement and subsequently they were debarred from filing written statement. After settlement of issues the petitioner-plaintiff adduced evidence which was closed on 18.09.2008 and the matter was pending for final hearing. During such time the respondent no. 2 herein had filed an application under Order I Rule 10 C.P.C. for impleading her as a party defendant primarily on the consideration that the plaintiff-petitioner as well as the proposed interveners were parties to a suit which was preferred by the petitioner-plaintiff for cancellation of alleged gift deed executed by one Yog Maya Devi. The respondent no. 2 further claims that although the suit preferred by the plaintiff-petitioner was dismissed but the said order was subsequently set aside in an appeal in Title Appeal no. 12 of 2002 against which the respondent no. 2 had preferred a second appeal being Second Appeal No. 266 of 2002 which has been admitted by this Court and execution proceeding has been stayed till the disposal of the second appeal. It is the case of the respondent no. 2 that the defendant-respondent no. 1 had vacated the premises in the year 1995 and vacant possession has already been handed over to the respondent no. 2 and since she claims title over the property with respect to which eviction suit is going on, she has, therefore, claimed to be added as a party-defendant by allowing the application preferred under Order I Rule 10 C.P.C.

The plaintiff-petitioner has opposed the prayer of the respondent no. 2 by submitted that since the suit was for the purpose of eviction on the ground of arrears of rent and personal necessity the respondent no. 2 being a stranger could not have been permitted to intervene in the suit as the title with respect to the premises in question were not to be decided by the learned court below. Vide order dated 21.01.2009 the application preferred by the respondent no. 2 under Order I Rule 10 C.P.C. was allowed on consideration of the fact that the second appeal is still pending before this Court in which execution proceeding was stayed. This fact was suppressed by the plaintiff in the eviction suit.

Learned counsel for the petitioner submits that the eviction suit is between the landlord and the tenant and there is no scope for any other party to be allowed to intervene in the said proceeding. It has further been submitted that in the eviction suit the title of either plaintiff-petitioner or the respondent no. 2 is not to be ascertained as the same is the subject matter of second appeal pending before this Court and in such circumstance, therefore, the learned court below had committed an error of law in allowing the application preferred by the respondent no. 2 under Order I Rule 10 C.P.C.

Mr. Sumit Kumar, learned counsel appearing for the respondent no. 2, on the other hand, submits that allowing the application of the respondent no. 2 was justifiable on the part of the learned court below since the issue which has arisen in the suit preferred by the plaintiff-petitioner for cancellation of the gift deed as well as the issues of eviction of the defendant no. 1 Fatima Bibi (respondent no. 1 herein) is intertwined and the same would have a bearing in the eviction suit itself and, therefore, on such perception court below was, therefore, correct in properly applying the provisions of Order I Rule 10 C.P.C for allowing the intervention application preferred by the respondent no. 2.

The only issues which the learned court below was confronted with was whether the respondent no. 2 could have been allowed to intervene in the eviction suit preferred by the petitioner only on the ground that a dispute between the plaintiff-petitioner and the respondent no. 2 was prevailing on account of the challenge made by the plaintiff-petitioner for cancellation of the purported gift deed by one Yog Maya Devi in the year 1983 in favour of the respondent no. 2. Learned court below while allowing such application had primarily considered the fact that the plaintiff-petitioner had suppressed the issues with respect to the pendency of the second appeal before this Court regarding the ascertainment of title of the petitioner-plaintiff and the respondent no. 2.

It further appears that merely because a second appeal is pending before this Court and interim order of stay of the execution proceeding has been granted the same would in no way effect the eviction suit preferred by the petitioner-plaintiff as the issues which have been indicated above are absolutely on different parameters since the issue is between the landlord and the tenant as the landlord claims eviction of the tenant on the ground of arrears of rent as well as personal necessity whereas the suit which was preferred by the plaintiff against the respondent no. 2 was with respect to the title as it related to cancellation of gift deed purportedly granted by one Yog May Devi in the year 1983 in favour of the respondent no. 2.

Learned counsel for the petitioner in support of his contention has referred to the judgment of the Hon'ble Supreme Court in the case of Kanaklata Das & Ors. v. Naba Kumar Das & Ors. in Civil Appeal No. 3018 of 2008.

The factual aspect of the case as mentioned above reveals that ejectment suit was filed against the respondent nos. 2 to 5 for eviction on various ground enumerated therein at which one of the co-shares claiming right, title and interest over the suit premises had filed an application under Order I Rule 10 C.P.C for his impleadment by the learned court below which although was rejected but overturned by the High Court and which finally ended in the judgment being passed by the Hon'ble Supreme Court as referred to above. The question of right, title and interest vis-à-vis eviction of tenant by a landlord has been considered and the principle of law enunciated from such factual aspect have been devolved and which reads as under:

There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question arose in this appeal. These principles are mentioned infra.

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.

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's-tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.

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 - Dr. Ranbir Singh vs. Asharfi Lal, 1995 (6) SCC 580.

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 vs. Sudha Rani Banerjee & Anr., 2005 (8) SCC 140.

Fifth, a necessary party is one without whom, no order can be cade 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 vs. Additional Member Board of Revenue, Bihar & Anr. AIR 1963 786)

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 Radhakrishna & Ors. vs. M. Chinniyan & Anr. 2016 (3) SCC 296.

Adverting back to the factual aspect the respondent no. 2 cannot claim herself to an interested party in the suit for eviction filed by the petitioner-plaintiff as the issue was purely between the petitionerplaintiff and the defendant no. 1 (respondent no. 1 herein). The learned court below has not to grapple with the issue of deciding the title between the parties but only to consider as to whether there indeed was default on the part of the tenant and/or whether the suit premises are required for personal necessity by the plaintiff-petitioner. It was not at all necessary for the court below to have allowed the application preferred by the respondent no. 2 under Order I Rule 10 C.P.C. merely because the second appeal is pending between the parties before this Court as the eviction suit indicates an altogether different purpose and object which is oblivious to the dispute of title existing between the petitioner-plaintiff and the respondent no. 2.

In the circumstances narrated above, therefore, this Court comes to a conclusion that the learned court below has committed an error of law in passing the impugned order dated 21.01.2009 in Title Eviction Suit No. 1 of 2008 and accordingly the same is hereby quashed and set aside with a direction to the learned court below to expedite the hearing of Title Eviction Suit No. 1 of 2008.

This writ application stands disposed of.