Riazuddin vs Nabi Alam & Ors

This revisional application under Article 227 of the Constitution of India is at the instance of a plaintiff in a suit for eviction under Section 6 of the West Bengal Premises Tenancy Act, 1997 and is directed against order no. 9 dated December 21, 2016 passed by the learned 2nd Bench, Small Causes Court at Calcutta in Ejectment Suit No. 138 of 2016.

The learned trial Judge by the order impugned has allowed an application filed by the opposite party nos. 2 to 10 under Order 1 Rule 10(2) of the Code of Civil Procedure for their addition in the suit as proforma defendants.

Mr. Munshi, learned counsel appearing for the opposite party nos. 2 to 10, contends that the suit property is a part of the joint property of the petitioner and his clients and a partition suit seeking partition of the said joint property is pending. He further contends that the tenant is paying rent to his clients and his clients are accepting the opposite party no. 1 as their tenants. He further contends that his clients are objecting to the eviction of the opposite party no. 1 from the suit property and as such presence of his clients in the suit is required to ventilate their said stand before the learned trial Judge.

Mr. Abhijit Ray, learned counsel appearing on behalf of the petitioner, submits that this is a suit for eviction simpliciter and his client being one of the co-owners can maintain the suit alone.

Mr. Mina, learned counsel appearing for the opposite party no. 1, contends that his client is paying rent to the clients of Mr. Munshi and has already filed an application under Section 7(2) of the said Act disputing the landlord relationship between his client and the plaintiff.

Be that as it may, the law is settled that a co-owner can maintain a suit for eviction of a tenant unless the other co-owners object to such eviction. The present suit is a suit for eviction of a tenant under the provision of Rent Control Legislation. In a suit of such nature inter se title dispute between the co-owners over the suit property cannot be resolved.

Mr. Mina, learned counsel appearing on behalf of the opposite party no. 1, submits that to bring home his case that no relation of landlord and tenant exists between the plaintiff and the defendants they will obviously cite other co-owners as his witnesses in the suit.

Therefore, the apprehension of Mr. Munshi that in the event his clients are not allowed to be added in the suit, the objection of his clients in evicting the tenants from the suit property cannot be brought to the notice of the Court is far fetching.

That apart Mr. Munshi's client i.e. the opposite party Nos. 2 to 10 by the order impugned has been added as 'proforma defendants' in the suit. The provisions of Code of Civil Procedure does not recognize any party to a suit as 'proforma defendant'. However, when a party in the suit is arrayed as such it is understood that either the plaintiff in the suit is not seeking any relief against the said defendant or the said defendant is supporting the case of the plaintiff.

In the present case the plaintiff is not seeking any relief against the added parties. On the contrary the said added parties are objecting to the relief prayed for by the plaintiff in the suit. Therefore, the addition of the opposite party Nos. 2 to 10 in the suit as proforma defendant is also not warranted.

The presence of the added parties are not at all required in the present suit inasmuch as they are neither necessary nor proper party to the suit.

Moreover, in a suit for eviction on the ground of reasonable requirement under the West Bengal Premises Tenancy Act, 1997 by one of the co-sharers, the presence of other co-sharers only to ventilate their objection to the relief as prayed for in the suit by the plaintiff in the said proceeding does not qualify the requirement of Order 1 Rule 10(2) of the Code.

In view of the aforesaid, the order impugned is set aside. The revisional application being CO 1168 of 2017 is allowed. No order as to costs.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.