Om Parkash Kapoor vs Nirmala Devi and others

S.S. Sodhi, J.—The impugned order of the rent controller declining to stay ejectment proceedings against the petitioner, after the filing of an inter-pleader suit by the petitioner to which the respondents too were party, is clearly erroneous and cannot, therefore, be sustained.

To give a brief resume of facts relevant to the controversy here the petitioner Om Parkash was a tenant of a shop under the Joint Hindu Family firm Messrs Janki Dass and Sons. Amar Nath as the Karta of the Joint Hindu Family was the person to whom rent was paid by the petitioner. On the death of Amar Nath, the tenant-Om Parkash started paying rent to his widow-Lajwanti.

On April 29, 1980, Subhash Chander and Sukesh Kumar the sons of Parkash Chand, the brother of the said Amar Nath, filed a Petition for ejectment against the petitioner-Om Parkash, on the ground of non-payment of arrears of rent. An order of ejectment was passed against the petitioner which was affirmed by the appellate authority. A revision petition against this order, being Civil Revision 1324 of 1984, was admitted to hearing by this Court on September 4, 1984 and it is still pending. In terms of the interim order passed therein, the monthly rent for the premises in question is being deposited with the rent controller ever since.

In the meanwhile, on February 8, 1980, Lajwanti, the widow of Amar Nath sold the shop to respondents-Nirmla Devi and others, who on June 10, 1985, during the pendency of the revision petition filed by the petitioner in this Court filed an application for ejectment against the petitioner before the rent controller seeking his ejectment on the ground of personal necessity and non payment of arrears of rent. These proceedings were sought to be stayed by the petitioner by an application u/s 20 of the Code of Civil Procedure, which he filed before the rent controller on August 19, 1985. This application was, however, dismissed on October 5, 1985.

Some time in August, 1985 the petitioner filed an inter-pleader suit in terms of Order 35 of the CPC impleading therein as defendants, both parties concerned, namely, Subhash Chander and Sukesh Kumar on the one hand and Nirmla Devi and others on the other, besides some others and it was thereafter or August 31, 1987 that he filed another application before the rent controller seeking stay of ejectment proceedings against him, this time, on account of the pendency of the inter pleader suit. It is the dismissal of this application by the impugned order of the rent controller of September 9, 1987 that has led to the filing of the present revision petition.

It will be seen that there are two sets of persons who are seeking the ejectment of the petitioner from the shop let out to him. They being, Subhash Chander and Sukesh Kumar, who have already obtained an order of ejectment against him and this matter is now pending in this Court in Civil Revision (sic) of (sic) and on the other hand, there are the proceedings for ejectment initiated against him at the instance of Nirmla Devi and others, who claim to have purchased this property from Lajwanti-the widow of Amar Nath. Such being the situation, there was ample cause and justification for the petitioner to have filed the inter-pleader suit. As a tenant, the petitioner was clearly entitled to seek the verdict of the Court in order to know to whom he was liable to pay rent for the shop in question.

A plain reading of the provisions of Rule 3 of Order 35 of the CPC would show that once the court before which the suit against the plaintiff is pending, is informed of the institution of the inter pleader suit, it is clearly incumbent upon that court to stay the proceedings against such plaintiff Stay of ejectment proceedings against the petitioner before the rent controller was thus rendered obligatory by the filing of the inter-pleader suit by the petitioner-Om Parkash.

Faced with this situation, Mr. R.C. Dogra counsel for the respondents sought to contend that as the earlier application for stay of proceedings u/s 10 of the CPC had already been declined by the rent controller, the petitioner was debarred from seeking the same relief, by his present application to this effect. There is indeed no substance in this contention. In dealing with this matter, it must be appreciated that the application u/s 10 of the CPC had been made before the filing of the inter-pleader suit, whereas the present application is forded upon the inter-pleader suit having been filed. The earlier application for stay cannot therefore, be construed as a bar to stay of proceedings consequent upon the institution of the inter pleader suit.

Next it was contended that as the petitioner had admitted both in the earlier ejectment proceedings against him by Subhash Chander and Sukesh Kumar as also in the present proceedings that he was tenant under Smt. Nirmla Devi and others, he could not be heard to say that he did not know to whom rent was payable and this being so, there was no warrant for stay of proceedings before the rent controller. This again is an untenable contention as it is not only Nirmla Devi and others who are claiming rent from him, but an order of ejectment has already been passed against him at the instance of Subhash Chander and Sukesh Kumar and this matter is still pending before this Court. It will thus be seen that his admission or liability to one party has not absolved him from liability being sought to be fastened upon him by the other. In this situation, the proceedings clearly deserve to be stayed in terms of Order 35 Rule 3 of the Code of Civil Procedure.

Finally, reference was made by the counsel for the respondents, to the judgment of the civil court, which, it was said, his already been placed on the record of the rent controller whereby the shares of the co-sharers, which included Subhash Chander and Sukesh Kumar as also Lajwanti through whom Nirmla Devi and others claim their right and title, stood settled with regard to property which also includes the shop in the possession of the petitioner It was argued that in the face of this judgment, there was no dispute left for the court to decide in the inter-pleader suit filed by the petitioner. This again is a contention that cannot stand scrutiny. If the matters stood settled, as suggested by the counsel for the respondents, the earlier ejectment proceedings brought against the petitioner by Subhash Chander and Sukesh Kumar would have stood concluded thereby, but this had not happened. At any rate if such is indeed a case, it will be open to the respondent to bring this fact on the record of the court trying the inter-pleader suit and to seek its verdict thereon, which, if the matter before it already stands settled thereby, should not be long in coming.

The impugned order of the rent controller is accordingly here-by set aside and the proceedings before it against the petitioner are ordered to be stayed in terms of Order 35 Rule 3 of the Code of Civil Procedure. This revision petition is thus accepted. Costs of this petition shall be costs in the proceedings. Counsel fee Rs. (sic)/-.

Parties are directed to appear before the rent controller on June 10, 1988.