Smt. Joginder Kaur vs Smt. Preetpal Kaur & another

MANOJ K. TIWARI, J. (ORAL)

Rejoinder affidavit filed on behalf of the petitioner is taken on record. Misc. Application (IA No. 6228 of 2018) stands disposed of accordingly.

Petitioner is aggrieved by an order dated 18.05.2017 passed by Prescribed Authority/Civil Judge (Sr. Division), Camp Court, Mussoorie in PA Case

No. 27 of 2013. By the said order, petitioner’s applications under Order 1 Rule 10 seeking her impleadment as co-plaintiff in a release application

filed by Smt. Preetpal Kaur (respondent no.1) has been rejected.

Brief facts of the case are that Smt. Preetpal Kaur (respondent no.1) claims herself to be the owner and landlord of property bearing Nos. 4 & 5

situate at Barlowganj, Mussoorie. According to her, she purchased the said property by means of two sale-deeds dated 16.04.1998 and 24.11.2009.

She filed an application for release of the said premises under Section 21 (1) (a) of the U.P. Act No.13 of 1972 against Shri Chatar Pal Singh

(husband of the petitioner) on the ground of bonafide need.

Petitioner, who is wife of Shri Chatar Pal Singh filed an application seeking her impleadment as co-plaintiff in the release application filed by

respondent no.1 on the ground that she has purchased the property in question by means of sale deed dated 27.11.2013.

Learned counsel for the petitioner submits that since Shri Om had sold out his entire share in the property long ago, therefore, the sale-deed

executed by Shri Om in favour of Smt. Preetpal Kaur is null and void and no title passes through the said sale-deed. He further submits that petitioner

has filed a civil suit seeking declaration that the sale-deed executed by Shri Om in favour of Smt. Preetpal Kaur is null and void and also for partition,

which is registered as O.S. No. 266 of 2015.

Thus, according to learned counsel for the petitioner, the ownership of the premises in question vests in the petitioner, therefore, Smt. Preetpal Kaur

had no locus to file application for release against Shri Chatar Pal Singh i.e. husband of the petitioner. In this backdrop, petitioner had made application

under Order 1 Rule 10 C.P.C which has been rejected by learned Prescribed Authority vide order dated 18.05.2017.

I have gone through the order passed by learned Prescribed Authority and I find no reason to interfere with the same. Hon’ble Supreme Court

in a recent decision rendered in the case of Kanaklata Das and others vs. Naba Kumar Das and others reported in (2018) 2 SCC 352 has summarized

the law as to the circumstances in which a person can be impleaded as party in an eviction suit. Para 11 of the said judgment is extracted below:-

“11. 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 which arose in this appeal. These principles are mentioned infra.

11.1. 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.

11.2. 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, the eviction suit succeeds.

11.3. 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-

Ranbir Singh vs. Asharfi Lal).

11.4. 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.)

11.5. Fifth, a necessary party is one without whom, no order can be made 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,)

11.6. 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 Radhakrishnan

vs. M. Chinniyan)â€​

Admittedly, petitioner wants herself to be impleaded in a release application pending before the Prescribed Authority. The proceedings, pending

before Prescribed Authority, are summary in nature in which disputed question of title cannot be gone into. While deciding the release application,

learned Prescribed Authority is required to see whether relationship of landlord and tenant exist between the applicant and the respondent and

question of title is not germane for taking decision on the release application.

In such view of the matter, learned Prescribed Authority was justified in rejecting petitioner’s application seeking her impleadment. The writ

petition, therefore, fails and is hereby dismissed. It goes without saying that onus of proof that she is a landlady of the premises in question rests upon

respondent no.1, therefore learned Prescribed Authority shall deal with this aspect, while deciding the release application.