Prakash Chand vs Arjun Das and another

Rakesh Tiwari,J.

By means of this writ petition, the petitioner challenges the validity and correctness of the order dated 5.6.2010 passed by the Prescribed Authority/Additional Civil Judge (Senior Division), Agra appended as Annexure5 to the writ petition, by which the application for impleadment filed by respondent no.2 has been allowed.

The petitioner claims himself to be the owner and landlord of the property in question bearing nos. 29/42 and 3 situated at Raja Ki Mandi, Bharat Cinema Road, Agra. He filed an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the shop in dispute alleged to be in occupation of respondent no.1. Release of the shop was sought for settling the two sons of the petitioner in business. It is claimed that the family members of respondent no.1 have acquired various commercial accommodations in the vicinity of the shop in question from where they are carrying their business and have retained the shop in question in the hope and expectation of getting premium for vacating it though respondent no.1 is neither carrying any business therefrom nor has any need in this regard.

The release application was contested by respondent no.1 who filed written statement on 18.9.2007 admitting his status as of tenant of the shop in question as well as claiming the petitioner to be the landlord of the shop in dispute.

The contention of learned counsel for the petitioner is that after the evidence was concluded by the petitioner in P.A. Case No. 23 of 2006, the Prescribed Authority vide order dated 28.1.2010 granted further opportunity to respondent no.1 for filing his defence evidence and fixed 11.2.2010 for filing counter affidavit. On that date, it is alleged that respondent no.1 instead of filing counter affidavit, filed impleadment application on behalf of Thakur Radha Govind Chandra Devji Maharaj through its Trustee/President, respondent no.2. It was objected to by the petitioner by filing reply on 29.4.2010, interalia that the applicant has no right or title in the property in question and in case he desires to file impleadment application claiming himself to be the owner of the trust property which includes the shop, he may enforce his right through a regular suit.

The Prescribed Authority/Civil Judge (Senior Division), Agra after hearing the parties allowed the impleadment application filed by respondent no.2, Thakur Radha Govind Chandra Devji Maharaj Virajman Mandir, Prem Sarovar, Village Gajipur near Barsana Tehsil Chhata, District Mathura vide his order dated 5.6.2010. This has given rise to the petitioner for moving this writ petition before this Court.

The impugned order dated 5.6.2010 passed by the Prescribed Authority/Civil Judge (Senior Division), Agra allowing the impleadment application of respondent no.2, who claims himself to the owner and landlord of the shop in question, is sought to be challenged on the ground that the authority below has failed to consider the relevant consideration while entertaining the application for impleadment filed on behalf of respondent no.2 particularly that in view of the admitted relationship of landlord and tenant in between the petitioner and respondent no.1, the controversy sought to be raised by the third party respondent no.2 cannot be allowed to be raised in summary proceedings under Section 21(a) of U.P. Act No. 13 of 1972.

It is urged that in absence of any finding with regard to impleadment of respondent no.2 by the Prescribed Authority, the controversy involved in P.A. Case No. 23 of 2006 cannot be properly and effectively decided, hence the Prescribed Authority has acted illegally while inferring presence of the applicant for impleadment as necessary party to the release application, as such the impugned order cannot be sustained as there has to be evidence much less prima facie evidence to establish the existence of relationship of landlord and tenant in between respondent nos. 1 and 2.

It is stated by the learned counsel for the petitioner that in the circumstances respondent no.2 ought to have asserted his right regarding title by filing regular suit and could not have become party in the rent suit for establishing his right or title. According to the learned counsel for the petitioner, the Prescribed Authority has acted illegally while allowing application for impleadment merely on the ground that to avoid multiplicity of proceedings the impleadment is necessary without adverting its attention that the allegations on the basis whereof the respondent no.2 has sought his impleadment require adjudication of right and title which can only be adjudicated through a regular suit and not in release proceedings filed under Section 21(1)(a) of U.P. Act No. 13 of 1972.

I have heard learned counsel for the parties at length and perused the record.

It appears that application paper 32C under Order 1 rule 10 read with Section 151 of Code of Civil Procedure along with an affidavit paper no.33C was filed with the averments that the applicant is a registered trust having its head office at Mathura; that property no. 29/4, which is known as Kanhaiya Building Raja Ki Mandi ,Agra is the trust property in which there are several shops, some of which are in possession of those persons who claims to be the tenant and whose tenancies have been terminated by trust. According to the averments made in the application for impleadment, shop property no.29/4 was earlier given to Sri Chandra Kishan Dhawan and that it has come in the knowledge of the trust that after the death of Sri Chandra Kishan Dhawan his heirs have started declaring themselves to be the owner of the property of the shop in dispute on the basis of certain saledeeds said to have been executed in their favour which have been cancelled by 2nd Additional District Judge, Agra. It is stated that the proceedings are barred by the provisions of U.P. Public Religious Institution (Prevention of Distention of Properties Temporary Powers) Act, 1962. The High Court has also confirmed the findings of the 2nd Additional District Judge, Agra cancelling the saledeeds, hence they are the owners of the property in dispute shop no. 29/4, Kanhaiya Building Agra but their rights are being denied in collusion with the parties to the proceedings pursuant to the release application and as such they have deliberately not impleaded the trust as party in the proceedings though they are necessary parties.

It also appears from the record that the trust is claiming that they were receiving rent from 196263 from the tenant and had given shop to him on rent. When after a considerable period of time the tenant did not pay the rent, S.C.C. Case No. 30 of 2006 was filed by the trust/impleader in the Court Judge Small Causes Court and on these facts they claimed right to be imleaded as party in the case.

The court below after hearing objection on the impleadment application held that the trust/impleader third party is the necessary party to be impleaded in the case. Relying upon the decisions rendered in Narendra Nath Srivastava versus Prescribed Authority, Lucknow and others, ARC, 1992(2)236 and Laxmi Narain versus District Judge, Fatehpur and others, ARC 1991(2)538 and considering the provisions of Sections 21(1) (a) and 22 of the U.P. Rent Control Act, the court below held that it is necessary for disposal of impleadment application that as to who is the landlord and owner of the property in suit since the controversy is a matter of adjudication by the regular court. It may also be noted here that the impleader third party i.e. trust is not getting its right adjudicated in the release application filed by the petitioner as owner of the property in dispute rather, it has sought to be impleaded as a party as the trust is being illegally ousted by the tenant as alleged landlords who claim themselves to be the owners of the property in suit. When after the tenants do not pay the rent and recognize some other person as landlord for ousting the real landlords from the scene, the rights of the third party who claim to be real landlords and owners would be affected. Even though the rights of the impleader third party as owner may not be adjudicated in a suit for rent and eviction but it can not be said that its impleadment is unnecessary for just and equitable decision in the case particularly when it may appear that the tenant is colluding with other persons whose saledeeds have been cancelled recognizing them as landlords to collusively oust the real landlord. This being the position the court below has rightly concluded that impleader third party is a necessary party.

For the reasons stated above, the writ petition is dismissed. No order as to costs.