Swami Ramdev vs Swami Rupendra & Another

Lok Pal Singh, J

1) This revision, preferred under Section 25 of the Provincial Small Cause Courts Act, 1887, is directed against the judgment and order dated 15.02.2019, passed by Judge, Small Cause Courts / I Addl. District Judge, Haridwar, in S.C.C. Suit No. 09 of 2014, Swami Rupendra Prakash vs Syndicate Bank, whereby application filed by the revisionist under Order 1 Rule 10 read with Section 151 CPC was dismissed.

2) Heard learned counsel for the parties and perused the entire record.

3) Brief facts of the case are that Guru of respondent no. 1 Swami Hans Prakash disciple Swami Govind Prakash was the Mahant / Manager-landlord of the property in question along with other properties, let out to respondent no. 2 on rent at the rate of Rs.11,500/- per month and in addition to that an amount of Rs.1,500/- were to be paid as water and sewerage charges. The said property was let out to the respondent no. 2 on 01.04.2006 for a period of five years. Swami Hans Prakash left for heavenly abode on 05.01.2013. Respondent no. 1 became his successor and enthroned as Mahant of Pracheen Avdhoot Mandal Ashram on the basis of Will dated 17.12.2012 executed by late Swami Hans Prakash. It is contended in the plaint that respondent no. 1 succeeded in getting succession certification from the court of Civil Judge (Sr. Div.), Haridwar on the basis of said Will. He filed SCC suit no. 09 of 2014 for recovery of arrears of rent, mesne profits and for eviction of the defendant (present respondent no. 2). It is alleged in the plaint that after 01.06.2013, no rent was paid by the defendant. Therefore, after giving notice under Section 106 of the Transfer of Property Act, the suit was filed for eviction of the defendant and also for realization of arrears of rent and mesne profits.

4) During the pendency of suit, revisionist filed an application (paper no. 62C) under Order 1 Rule 10(2) read with Section 151 of CPC, stating therein, that Swami Hans Prakash disciple Swami Govind Prakash was the President of Pracheen Avdhoot Mandal Ashram, Brahamdas Trust, Jwalapur, Haridwar (hereinafter referred to as the 'Trust'). He died on 05.01.2013 at Delhi in Sir Gangaram Hospital. It is stated in said application that plaintiff/respondent no. 1 filed the SCC suit claiming himself to be the alleged disciple of Swami Hans Prakash, whereof late Swami Hans Prakash on his 75th birthday had declared that Swami Shyam Prakash is his only disciple. It is specifically stated that no Will was ever executed by Swami Hans Prakash during his lifetime on 17.12.2012. Lastly, it is stated that as the interest of applicant-Trust is involved in the suit, as such, applicant, being the President of the Trust, is necessary party in the suit.

5) The trial court having heard learned counsel for the parties dismissed the application filed by the revisionist under Order 1 Rule 10(2) read with Section 151 of CPC holding that the applicant (revisionist herein) has failed to prove the relationship of landlord-tenant between the parties and he is not a necessary and proper party to the suit. Aggrieved against the order dated 15.02.2019, present civil revision has been filed.

6) The court below principally relied upon the judgment passed by Hon'ble Supreme Court in Kanaklata Das and others vs Naba Kumar Das and others (2018) 2 SCC 352, while rejecting the impleadment application filed by the applicant (revisionist herein) wherein certain principles of law were propounded by the Apex Court as to who is a necessary party in a suit. Paragraph no. 11 is reproduced here-in-below for reference:

"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 arisen 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, 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 prove 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.

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 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.

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.

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."

7) Before further discussion it will be apt to quote Order 1 Rule 10(2) of Code of Civil Procedure, 1908. The same reads as under:

"(2) Court may strike out or add parties. - The Court may at any stage of proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

8) Learned counsel for the revisionist would submit that the property in question is a religious property and it has a fixed amount of rent and water tax, as such, the same does not come within the ambit of U.P. Act no. 13 of 2972. He would further submit that the court below has not appreciated correctly the pleadings, facts and evidence adduced on behalf of the defendant. I have gone through the material brought on record and do not find any error committed by the court below in appreciating the pleadings and evidence. Otherwise also, revisional court in its revisional jurisdiction cannot re-appreciate the evidence on record, unless the trial court has committed gross error of law in appreciating the facts and evidence.

9) Learned counsel for the revisionist placed reliance on the following judgments rendered by Hon'ble Apex Court, viz., Ramesh Hirachand Kundanmal vs Municipal Corporation of Greater Bombay 1992 (2) SCC 524 and Aliji Momonji and Company vs Lalji Movji 1996 (5) SCC 379 in support of his contention. The facts of the judgments cited by leaned counsel for the revisionist are not applicable to the facts and circumstances of the case in hand, inasmuch as the present revision has arisen against rejection of impleadment application of a third party (revisionist herein) filed by the plaintiff (respondent no. 1 herein) in SCC suit for eviction of the defendant (respondent no. 2 herein) and for realization of arrears of rent and mesne profits.

10) Impleadment application was filed in the name of Avdhoot Mandal Ashram, Pracheen Brahmdas Trust, Post Gurukul Kangri, Haridwar through his President Swami Ramdev disciple of Sri Hari Dev Maharaj r/o Panchtirthi Ashram, Thana Bhuwan, District Muzaffarnagar (U.P.) which has been rejected by the court below by impugned order dated 15.02.2019. The applicant (revisionist herein) did not prefer the revision in the capacity as President of said Trust, rather he has filed the present civil revision in individual capacity. Therefore, the applicant, who was before the court below, is not before this Court in civil revision, as such, he is a stranger in the revision and has no locus to maintain the revision. Before the court below, he (revisionist herein) had mentioned his residential address as Panchtirthi Ashram, Thana Bhuwan, District Muzaffarnagar (U.P.), whereof no proof has been filed by him that he is the President of Shri Avdhoot Mandal Ashram. Revisionist cannot be said to be an aggrieved person as he is entirely new entity before this Court.

11) Though the civil revision at the behest of the revisionist is not maintainable, however, having considered the jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887, this Court is deciding the civil revision on merits to examine the legality and propriety of the order impugned.

12) Section 25 of the Provincial Small Cause Courts Act, 1887 provides as under:

"25. Revision of decrees and orders of Courts of Small Causes.-The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit."

Section 25 substituted by U.P. Amendment, (also applicable in the State of Uttarakhand) stipulates as under:

"25. Revision of decrees and orders of Courts of Small Causes.-The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court of Small Causes was according to law, may of his own motion, or on the application of an aggrieved party made within thirty days from the date of such decree or order, call for the case and pass such order with respect thereto as he thinks fit."

13) Learned counsel for respondent no. 2 placed reliance upon the judgment rendered by Hon'ble Apex Court in Ruma Chakraborty vs Sudha Rani 2005 (8) SCC 140. The relevant paragraph of said judgment is excerpted hereunder:

"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."

On the strength of judgment (supra) learned counsel for respondent no. 2 would submit that a third person cannot be said to be a necessary and proper party to the suit and the suit can very well proceed without his presence.

14) In Mumbai International Airport (P) Ltd. vs Regency Convention Centre and Hotels (P) Ltd. (2010) 7 SCC 417, the Hon'ble Apex Court considered the scope of Order 1 Rule 10(2) of CPC and observed thus:

"The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the CPC, which provides for impleadment of proper or necessary parties.

The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined."

15) In my considered opinion, revisionist, who claims to be the necessary party to the suit property, is neither a necessary nor a proper party in the eviction suit filed by respondent no. 1 against respondent no. 2. In other words, such eviction suit can be decreed or dismissed on merits even without the impleadment of a third person (revisionist herein). The reason being that this is not a suit between the revisionist and plaintiff/respondent no. 1 where their inter se rights relating to the suit property can be gone into. Rather it is an ejectment suit filed by the respondent no. 1 against respondent no. 2 for its eviction from the suit premises. Therefore, the lis is between the respondent no. 1, on the one hand, and respondent no. 2 on the other hand, and the decision in the suit would depend upon the question (i) as to whether there exists any relationship of landlord and tenant between them in relation to the suit premises and; (ii) If so, whether the grounds pleaded in the plaint for claiming eviction of respondent no. 2 are established or not. For deciding these two main issues, the presence of revisionist is not necessary.

16) In view of the foregoing discussion, I do not find any jurisdictional error or any other material illegality in the impugned order, passed by the court below. Therefore, the civil revision is liable to be dismissed. The same is, accordingly, dismissed. However, the trial court is directed to decide the SCC suit as expeditiously as possible, in accordance with law, after giving ample opportunity of hearing to the parties.