Allahabad High Court
Gopi Nath vs Ist Addl. District Judge, Ghazipur And ... on 3 May, 2000
Equivalent citations: 2000(3)AWC2526
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. The applicant revisionist had moved an application for adding himself as party plaintiff in the suit claiming that he is the landlord of the property which has since been disputed by the plaintiff who had filed the suit for eviction of the defendant in the learned Small Causes Court. This application for impleadment was rejected by the order impugned in this revisional application.
2. The learned counsel for the petitioner Mr. Tej Pratap Singh contends that since the petitioner is the landlord, therefore, he is not only a necessry party but also a proper parly. The suit cannot proceed without him. Therefore, the impugned order should be set aside.
3. I have heard Mr. Singh at length.
4. This order was passed on 8th January, 1992 in SCC Suit No. 2 of 1989 by the learned SCC Court being the learned Additional District Judge, Ist Court. Ghazipur. No interim order was passed in this application. In the meantime, the suit might have been decreed. However, Mr. Singh very fairly concedes that he has no information about the fate of the suit now.
5. Be that as it may, the revisionist had claimed exclusive title to the property denying the title of the plaintiff/opposite party. In the objection, the opposite party/plaintiff had denied the title of the revisionist and claimed exclusive title.
6. Thus, the question is of title between persons claiming exclusive title to the property in suit with the relationship of landlord and tenant between plaintiff and the revisionist one of them on the one hand and the defendant on the other. The defendant had initially deposited the rent but subsequently came with an application for refund of the amount denying the relationship between him and the plaintiff. But the defendant having not challenged the order, it is not necessary to go into the said question.
7. Now if the revisionist is added in this case in that event issue would be completely different and that too between the plaintiffs inter se. Therefore, it would introduce multifariousness in the suit. It would introduce altogether a distinct independent and different cause of action between the plaintiffs inter se. Such a situation is not permissible.
8. Then again jurisdiction of small cause court excludes suits involving title. The question of title relating to relationship of landlord and tenant in a suit for eviction can be gone into incidentally. But question of title between two persons each claiming exclusive title to the property without denying the relationship with the tenant is not question of title incidental to the suit for eviction and that too between two plaintiffs, if added as party to the suit.
9. Such a question is altogether foreign to the issues involved in the suit for eviction when raised by person who is not claiming himself to be a tenant. However, such question can be raised by the tenant denying the relationship of the one and admitting that of the other or admitting the relationship with both or none, i.e., denying the same altogether. But for that it is not necessary to add the other person as party to the suit particularly when opposed by the plaintiff.
10. Sub-rule (1) of Rule 10 of the Order 1 of the Code of Civil Procedure permits substitution or addition of plaintiff if the suit is instituted in the name of a wrong person as plaintiff. It is also permissible if there is a doubt as to whether the suit is instituted in the name of the right plaintiff. Such permission is available only into circumstances : (1) that it was through bona fide mistake : (2) that it is necessary so to do for the determination of the real matter in dispute. The expression "and that" used in between the two conditions clearly indicate that the conditions are conjoint and not disjoint. In other words both the conditions are required to be fulfilled. Unless it satisfies both the conditions, sub-rule (1) is not attracted. These two are conditions precedent for application of the said sub-rule.
11. That apart, this is a right available to the original plaintiff alone. It is neither available to the defendant nor to a stranger to the suit. Though however a stranger may come in but only with the consent of the original plaintiff but not when it is opposed by him and that too on two conditions viz., (1) that the suit was instituted in the name of a wrong person as plaintiff or (2) that it is doubtful as to whether the suit was instituted in the name of the right person as plaintiff.
12. Then again it is not mistake alone. It must be a mistake bona fide. In the present case it is not a case of mistake. Therefore, the question of bona fide mistake is wholly irrelevant. It is not a case that the suit is instituted by a wrong person. It is also not a case of doubt about the right person. It is also not a case that it was necessary for determining the real matter in dispute. Thus, the facts of this case does not come within the scope and ambit of Order 1, Rule 10 (1) of the Code.
13. Sub-rule (2) of Rule 10 of Order I permits addition of party 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, it may 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.
14. Normally the Court should not add a person when the plaintiff is opposed to such addition. The reason being that the plaintiff is dominus litis. One of the useful test for deciding whether it will be proper to add a new party will be to see whether after his joinder, the main evidence in the suit and the main inquiry will remain the same as before his coming in. It is only proper and necessary parties are to be added in the suit. A person is a proper party if his presence before the Court is necessary to enable it to effectually and completely adjudicate upon and settle all the questions involved in the suit. But in exercising this power, the Court has to see that the trial of the suit is not embarrassed by the simultaneous investigation of totally unconnected controversies. A tenant cannot ordinarily insist on impleading a third party in a rent suit, so as to raise questions of title and thus convert a simple rent suit into a complicated title suit : nor can such party be allowed to come in on his own application. Such view was taken in the case of Bashir Ahmad v. Aziz Khan, 1963 All WR (HC) 780. In a suit for ejecting tenant, third person claiming title to the suit property cannot be added as a defendant as such addition would change the very nature of the suit, it was so held in Pravat Kumar Misra v. Prafulla Chandra Misra and another, AIR 1977 (Ori) 183 and Balwant Rai a. Lt. Gian Singh and others, AIR 1978 J & K 84. The Court will not give leave to add a party where the result would be to Introduce a new cause of action with which the plaintiff has nothing to do Mst. Bindru v. Soda Ram and others, AIR 1960 J & K 67. Similarly parties cannot be added so as to convert a suit of one character into a different character. Mst. Bindru v. Soda Ram and others, (supra) ; (Kakumanu) Venkatasuryanarayana v. Akuthata Ramayya and another, AIR 1921 Mad 98. A simple suit for rent cannot by adding parties be converted Into a suit for title. (Chamiar Kunchalam v. Kandan Damodaran, AIR 1960 Ker 284 ; Pt. Moti Ram v. L. Durga Das and another, AIR 1958 J & K 39). The expression "questions involved in the suit" does not mean all claims which may possibly be put forward by anybody to the property involved in the suit. It means questions as between the parties to the litigation i.e., question with regard to the right set up and 'the relief claimed on one side and denied or withheld on the other. It does not mean questions which may arise between co-plaintiffs and co-defendants inter se (Harishchandra Narayan Cinekar v. Kumma Vithoba, Komarpant, AIR 1922 Bom 454). A person claiming under a title quite distinct from that under which the parties to the suit claim is an improper party, as his joinder as party will result in misjoinder of plaintiffs and causes of action, or a misjoinder of defendants and causes of action. Where a person's right to join as a co-plaintiff is denied by the plaintiff on the record he should not be joined as co-plaintiff (Bayajabai Gampat v. Keval Rambhau and another, AIR 1953 Bom 202), Where such person objects to be added as a plaintiff, his joinder as co-plaintiff is improper (Vanjiyappa Goundan v. N. P. V. I. R. Annamalai Chettiar and others, AIR 1940 Mad 69.
15. Since the question is to be inter se between the plaintiff and the applicant, it is a question outside the jurisdiction of the Small Causes Court, such application cannot be allowed which gives rise to a question of title. By virtue of amendment or addition of parties, the entire complexion of the suit will be altered changing the nature and character of the suit between two plaintiffs, which cannot be decided in a suit' for eviction between the plaintiff and defendant-tenants. If there is a right between the plaintiff and the applicant, that can be established through a separate suit before appropriate forum which can decide the disputed question. Therefore, the application has been rejected rightly. Thus, on the basis of the objection by the plaintiff, no person can be added as a plaintiff in a suit.
16. The revision, therefore, fails and is accordingly dismissed. However, there will be no order as to cost.