Rajasthan High Court - Jaipur
Sushila Mehta vs Smt. Chandrakala And Anr. on 9 April, 2004
Equivalent citations: RLW2005(3)RAJ1875, 2005(3)WLC393
JUDGMENT Sunil Kumar Garg, J.
1. Heard at admission stage.
2. The petitioner-defendant has filed the present writ petition under Article 226/227 of the Constitution of India on 8.12.2003 against the respondents with a prayer that by an appropriate writ, order or direction, the order dtd. 3.1.1997 (Annex.3) passed by the respondent No. 2 (Additional Civil Judge (Junior Division) No. 5, Jodhpur, by which the application filed by the defendant-petitioner under Section 151 C.P.C. by which a prayer was made that since the defendant-petitioner had filed an interpleader suit against the respondent No. 1 (Smt. Chandrakala) and 8 others, therefore, till decision of that suit, the present suit No. 531/1993 pending in the Court of Additional Civil Judge (respondent No. 2) be stayed was rejected, be quashed and set aside.
3. It may be stated here that the respondent No. 1 (plaintiff) filed a suit against the defendant-petitioner for rent and ejectment on the ground of first default in the court of Additional Civil Judge (respondent No. 2) and that suit was registered as civil suit No. 531/1993.
4. Further case of the petitioner-defendant is that husband of respondent No. 1 had rented out the suit premises consisting of an office, two rooms, one hall, latrine, bath room, kitchen and roof on a monthly rent of Rs. 80 to the petitioner-defendant and since husband of respondent No. 1 executed a will in her favour on 3.1.78, therefore, after his death, the suit premises became her property and the defendant-petitioner became the tenant of respondent No. 1.
5. Further case of the petitioner-defendant is that she had filed a interpleader suit (Annex.1) against the respondent No. 1 and eight other persons on the ground that the petitioner- defendant had taken the suit premises on rent from Inder Singh and after his death, a suit had been filed by the respondent No. 1 claiming herself to be the owner of suit premises and it was also submitted in the interpleader suit that a suit had also been filed against the petitioner-defendant and her husband by one Shri Deepak Kumar S/o late Shri Inder Singh alleging that he is the sole owner of the suit premises and further another suit was filed by Shri Shanti Lal S/o Shri Inder Singh and therefore, since three suits have been filed separately by two sons and the respondent No. 1 against the petitioner and her husband, therefore, the interpleader suit was filed by the defendant- petitioner to declare as to who is the owner/landlord of the suit premises and as to whom rent is required to be paid.
6. Further case of the petitioner is that the petitioner- defendant filed an application (Annex.2) on 24.11.1995 before the respondent No. 2 (Additional Civil Judge) requesting him to stay the proceeding of the suit pending against the petitioner.
7. The respondent No. 2 (Additional Civil Judge) vide his order dtd. 3.1.1997 (Annex.3) dismissed the application inter alia holding that since the present suit was for eviction on the ground of default, therefore, the matter pertains to land-lord and tenant and such type of suit should not be stayed on the ground of filing of interpleader suit.
8. Aggrieved from the order dtd. 3.1.1997 (Annex.3), this writ petition has been filed.
9. In this writ petition, the main submission of the learned counsel for the petitioner is that the impugned order dtd. 3.1.1997 (Annex.3) passed by the learned Additional Civil Judge (respondent No. 2) is contrary to the provisions of Order 35 Rule 3 C.P.C. and when interpleader suit was filed by the defendant- petitioner, further proceedings in the present suit should have been stayed.
10. In my considered opinion, there is no substance in the argument raised by the learned counsel for the defendant- petitioner and the writ petition deserves to be dismissed.
11. It may be stated here that the condition to be satisfied for the institution and maintainability of the interpleader suit are (i) some debt, money or other property, whether movable or immovable, is due from the plaintiff (ii) two or more persons bonafide claim the same adversely to one another from the plaintiff who is not able to know as to who the rightful claimant is (iii) the plaintiff has no interest therein other than for charges or costs, (iv) the plaintiff must be prepared to pay or deliver the same to the rightful claimant and for that purpose unconditionally places it at the Court's disposal, and (v) the suit was bonafide instituted without any collusion for a decree as to the rightful claimant and for obtaining indemnity for himself.
12. Further more, in an interpleader suit, the contest is between the defendants for title and the plaintiff has got nothing to do with that contest.
13. In the present case, the defendant-petitioner who has filed the interpleader suit (Annex.1) has been treated as tenant by the plaintiff-respondent No. 1 and the petitioner-defendant herself has admitted this fact that in that suit rent has been determined and the same is being paid by the petitioner-defendant regularly and, therefore, it cannot be said that the present defendant in the interpleader suit has no interest in the subject matter in dispute. Since plaintiff in the interpleader suit must have no interest, but in the present case petitioner-defendant being tenant has interest, therefore, the application (Annex.1) was rightly rejected by the respondent No. 2 (Additional Civil Judge). This is one of the aspects of the matter, on which the application (Annex.1) filed by the defendant-petitioner was rightly rejected.
14. Another aspect is that tenant cannot institute interpleader suit against his land-lord and for that Order 35 Rule 5 is quoted hereunder:
"5. Agents and tenants may not institute interpleader- suits :-Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords."
15. Thus, a tenant cannot institute interpleader suit against his landlord. When this being the position of law, the present defendant-petitioner cannot file interpleader suit against the respondent No. 1 (plaintiff). From this point of view also, the application (Annex.1) was rightly rejected by respondent No. 2 (Additional Civil Judge). It may further be stated here that The object of Order 35 Rule 5 is to prevent a tenant from compelling his landlord to have his title determined.
16. In my considered opinion, the learned Judge has not committed any illegality or irregularity in passing the impugned order dtd. 3.1.1997 (Annex.3)
17. Apart from this, the discretion exercised by the learned Judge in rejecting the application filed by the petitioner- defendant is just and proper and does not require any interference by this Court under Article 226/227 of the Constitution of India.
18. Under Article 227 of the Constitution of India, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its finding or order is clearly perverse of patently unreasonable.
19. It may be stated that High Court's power under Article 226/227 of the Constitution of India should be exercised only when there is dereliction of duty and flagrant violation of law and should be exercised most sparingly in a case where grave injustice would be done unless the court interferes. It cannot be used as appellate or revisional forum. Apart from this power under Article 226 is exercised by the Court in its discretion and cannot be claimed as of right by any party.
20. For the reasons mentioned above, the impugned order dtd. 3.1.1997 (Annex.3) passed by the learned Additional Civil Judge (respondent No. 2) cannot be said to have been suffered from the basic infirmity and illegality and the same does not require any interference by this Court under Article 226/227 of the Constitution of India.
21. Accordingly, the present writ petition is dismissed.