Sri S. Vinod Kumar vs Sri S.N. Shivanna and S. Shekar

A.N. Venugopala Gowda, J.—Petitioner has filed suit against the 1st Respondent for passing of a decree of ejectment in respect of shop No. 2, ground floor (forming part of Old No. 1, New No. 2), Madhavaraya Mudaliar Road, Cox Town, Bangalore - 560 005. The 1st Respondent/Defendant has filed written statement and has contested the suit. The 2nd Respondent filed I.A No. 3 under Order 1 Rule 10(2) Code of CPC to permit him to come on record as additional Defendant. The Petitioner filed statement of objections and opposed the prayer in I.A No. 3. The trial court has allowed I.A No. 3 and has permitted the 2nd Respondent for being impleaded as Defendant No. 2 in the suit. Aggrieved, the Plaintiff has filed this writ petition.

Sri P.D. Surana, learned Counsel appearing for the Petitioner contended that, the suit being one for ejectment and the Defendant being a tenant in occupation of the suit premises, the scope of the suit being limited, the question of considering the claim putforth by the 2nd Respondent for impleading in the suit being not arising for consideration, the trial court has acted irrationally in allowing I.A No. 3.

Sri Sunil S. Rao, learned Counsel appearing for the 2nd Respondent contended that, the gift deed executed by Smt. C.R. Shamala was questioned by T.S. Yamuna and T.S. Vasuda in P. Misc. No. 253/2003 and Smt. C.R. Shymala, who had not acquired lawful right, title and interest on the suit property. He submits that, on account of dismissal of P Misc. No. 253/2003 for default on 06.11.2006, the 2nd Respondent has filed Misc. Petition No. 940/2006 on 04.12.2006 and the same is pending. Learned Counsel submits that, C.R. Shamala and Sumathi had no manner of right to deal with the property during the pendency of the suit and the Plaintiff having purchased the property, the transaction is hit by Section 53 of Transfer of Property Act and hence the applicant is a necessary and proper party to the suit. Learned Counsel submits that, the trial court by taking into consideration the facts and circumstances of the case has passed the order allowing I.A No. 3, which is justified.

The trial court has observed that, to ascertain as to who is the landlord of the Defendant, the presence of the applicant who claims interest over the suit schedule property is necessary party.

In view of the rival contentions and the record of the writ petition, which I have perused, the point for consideration is :

Whether the trial court is justified in allowing I.A No. 3?

The Plaintiff has purchased the suit property under the sale deed dated 14.02.2005 from Smt. B. Sumathi @ R. Sumathi under whom the Defendant was a tenant. The Plaintiff''s vendor has sent a letter of attornment dated 14.02.2005 to the Defendant. The Plaintiff has caused a notice dated 25.02.2006 to the Defendant terminating the tenancy on the expiry of 30.06.2006. The suit is for directing the Defendant to deliver the vacant possession of the suit premises and to pay the arrears of rent and consequential reliefs.

The Defendant in the written statement filed has stated that, the suit property is in litigation in O.S.NO 16092/2006 in the City Civil Court, Bangalore. However, he has stated that, he has been paying the rent to the original owner C.R. Shymala. According to him, there was no need to reply to the notice of termination and that there is dispute with regard to jural relationship.

The suit being one for ejectment, the 2nd Respondent, who claims title to the property is not a necessary party, since the question involved in the suit is the question concerning the parties to the suit and not of a third party against whom the Plaintiff is not seeking any relief.

Order 1 Rule 10(2) Code of CPC provides for impleadment of proper or necessary parties. The court has been given discretion to add as a party any person who is found to be a necessary or proper party. A necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at ail by the court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. A proper party is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made.

The suit being one for eviction of the tenant based on relationship of landlord and tenant, the scope of the suit is very much limited, in which a question of title cannot be gone into because the suit would be dismissed even if the Plaintiff succeeds in proving his title, but falls to establish the privity of contract of tenant It is well settled law that, title of the property is not germane for decision of the eviction suit. In a suit for eviction based on such relationship, the Court has only to decide whether the Defendant is the tenant of the Plaintiff or not, though the question of title if disputed, may incidentally be gone into, in connection with the preliminary issue of determining the main question about the relationship between the litigating parties.

In Life Insurance Corporation of India Vs. M/s. Indian Automobiles and Co. and others, , Hon''ble Supreme Court has observed that, in a suit for eviction of landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties, it will have to pass a decree in accordance with law. It has been further observed that, ali that the Court has to do is to satisfy itself with the person seeking eviction is a landlord who has prima facie right to receive the rent of the property in question. In order to decide whether, the denial of landlord''s title by the tenant is bona fide, the Court may have to go into tenant''s contention on the issue, but the Court is not to decide the question of title finally as the Court has to see whether the tenant''s denial of landlord is bona fide in the facts and circumstances of the case.

In the case of J.J. Lal Pvt. Ltd. and Others Vs. M.R. Murali and Another, , it has been held as follows:

I.A. Nos. 33-36 of 2001.

Hemalata Mohan, the applicant in these IAs seeks her impleadment in these proceedings submitting that on the basis of the Will dated 30-1-1935 executed by her grand-father she is one of the landlords entitled to apportionment of rent. A suit for establishment of her title and share in the property is pending in Madras High Court registered as Civil Suit No. 452 of 1983.

I.A. Nos. 41 to 44 of 2001.

These applications are filed by Municipal Corporation of Chennai seeking its impleadment in the proceedings alleging that the two premises. Door Nos. 244 and 264, subject matter of litigation in these proceedings are owned by it and therefore it needs to be impleaded as party in these appeals.

Both the sets of applications raise such controversies as are beyond the scope of these proceedings. This is a simple landlord-tenant suit. The relationship of Municipal Corporation, with the Respondents and their mutual rights and obligations are not germane to the present proceedings. Similarly, the question of title between Hemalata Mohan and the Respondents cannot be decided in these proceedings. The impleadment of any of the applicants would change the complexion of litigation and raise such controversies as are beyond the scope of this litigation. The presence of either of the applicants is neither necessary for the decision of the question involved in these proceedings nor their presence is necessary to enable the Court effectually and completely to adjudicate upon and settle the questions involved in these proceedings. They are neither necessary nor proper parties. Any decision in these proceedings would govern and bind the parties herein. Each of the two applicants is free to establish its own claims and title whatever it may be in any independent proceedings before a competent forum. The applications for impleadment are dismissed.

The ratio of decision squarely applies to the instant case.

On a careful examination of the facts of this case, I find that the 2nd Respondent is not a necessary party keeping in view the limited scope of the suit. The presence of the 2nd Respondent is not necessary for passing of an effective decree for ejectment. The case of the 2nd Defendant falls beyond the scope of the issues involved in the present suit and such issues are not required to be decided in the instant case, the relief prayed and the scope of the instant suit being limited with regard to the jural relationship of landlord and tenant.

The Petitioner, who has purchased the property during the pendency of litigation, in Case succeeds in the suit filed against the 1st Respondent and recovers possession or the arrears of rent, is Sound to account for the same and will be bound by the decree that may be passed against his vendor in the proceeding that is being prosecuted by the 2nd Respondent.

In view of the above, the trial court has committed irrationality in allowing I.A No. 3 and permitting the impleading of 2nd Respondent as 2nd Defendant in the suit.

In the result, the writ petition stands allowed and the impugned order stands quashed.

However, it is made clear that, if the Petitioner succeeds in the suit and recovers possession of the suit premises and/or the rent from the 1st Respondent, he is bound to restore the same to the 2nd Respondent, in case the 2nd Respondent succeeds in the proceeding noticed supra. Ordered accordingly.