Bombay High Court
Foolchand Nanhelal Parwar vs Shabbir Hussain S/O Mulla Akbar Ali ... on 13 November, 1997
Equivalent citations: 1998(2)BOMCR766, 1998(1)MHLJ429
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. Admit, Heard by consent of the advocates for the parties.
2. This revision application is against the order dated 22-9-1997 passed by the 6th Joint Civil Judge, Junior Division, Nagpur rejecting the application filed by the applicant for joining him as the defendant in R.C.S. No. 645/96. The applicant had filed an application under Order 1, Rule 10 of Civil Procedure Code for joining him as the defendant in the suit on the ground that he is the owner of the suit property and therefore the non-applicant No. 1 is not entitled to seek eviction of the non-applicant No. 2 from the suit premises claiming the latter to be a tenant of the former. It is seen from the record that the non-applicant No, 1 has filed the said R.C.S. No. 645/96 for eviction of the non-applicant No. 2 on the ground that the latter is the tenant of the former and has defaulted in payment of rent. There also appears to be a dispute between the applicant on the one side and the non-applicants Nos. 1 and 2 on the other side regarding ownership of the premises and in respect thereof, a suit was filed by the non-applicant No. 1 against the applicant and some others which had already been declared in favour of the non-applicant No. 1, against which the applicant has preferred an appeal in the High Court and therein the High Court has granted the order to maintain status quo as regards the portion of the premises which are in possession of the applicant.
3. By impugned order, the trial Court has dismissed the application filed by the applicant on the ground that, he is not a necessary and proper party to the proceedings. It is the contention of the learned advocate for the applicant that, though the trial Court in another suit being Special Civil Suit No. 382/76 has held that the property belongs to the non-applicant No. 1, the same is under dispute in the appeal filed against the said decree of the trial Court and as such the question of ownership regarding the premises is yet to be finally decided. In such circumstances, according to the learned advocate for the applicant, the non-applicant No. 1 could not be allowed to take undue advantage o! the said decree and to seek eviction of the non-applicant No. 2 who is the tenant inducted in the premises by the applicant. The learned advocate appearing on behalf of the non-applicant No. 1, on the other hand, submitted that the applicant is not a necessary party to the proceedings as rightly held by the trial Court and submitted that the suit pertains to the eviction of the tenant and as such the issue of the ownership is irrelevant. He sought to place reliance in the matter of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others, . The learned advocate appearing for the non-applicant No. 2 submitted that the title of the premises is itself in dispute and as such the applicant who also claims to be the owner of the properly and the lease having been granted by the applicant to the non-applicant No. 2, the applicant is a necessary and proper party and therefore the trial Court erred in rejecting the application filed by the applicant for joining him as a party to the proceedings.
4. Upon hearing the learned advocates for the parties and on going through the records, it is seen that the trial Court has rejected the application filed by the applicant on the ground that, he is neither a necessary nor proper party to the proceedings. Indeed the suit which has been filed by the non-applicant No. 1 against the non-applicant No. 2 is for the eviction of the latter on the ground that the latter is a tenant of the former and has defaulted in payment of rent. Considering the pleadings by the parties to the suit, the issue of ownership does not appear to be material and relevant for just decision in the matter. Being so, as is observed by the Apex Court in the judgment in the case of Ramesh Hirachand Kundanmal (supra), the question of impleadment of a party in suit is to be decided as per Order 1, Rule 10 of Civil Procedure Code. The said Rule provides that only necessary and proper parties to a proceeding can be impleaded. The Apex Court has clearly observed that :
"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."
Applying the ratio laid down by the Apex Court, it is seen that the dispute in the present case relates to the non-payment of rent by the non-applicant No. 2 to the non-applicant No. 1 and as such, the issue regarding ownership is irrelevant and not necessary for the decision in the matter. In this view of the matter, I do not find any infirmity in the finding arrived by the trial Court and there is no illegality in exercise of its jurisdiction by the trial Court in rejecting the application of the applicant for joining him as a party to the suit.
5. The learned advocate for the applicant further submitted that section 111-G of Transfer of Property Act is in relation to denial of title of landlord by the tenant, and therefore, unless the title of landlordship is clearly established, there can be no question of any decree of eviction against the tenant in a suit for eviction of the tenant. Being so, in order to establish the title of landlordship, it is necessary for the parties to establish the ownership of the property. The submission of the learned Counsel is devoid of substance. The section 111 -G provides for determination of lease by forfeiture. Accordingly a lessee cannot deny the title of the landlord with whom he has entered into lease agreement at the time of entering into possession of the leased premises. Occurrence of an event specified in the said section exposes the lease to the risk of forfeiture and empowers the lessor to issue a notice of termination. Being so, the provisions contained in section 111-G of the Transfer of Property Act can be of no assistance to justify the claim of the applicant for joining him as a party to the proceedings.
6. In the result, the Revision Application therefore fails and is accordingly dismissed with no order as to costs.
7. Revision application dismissed.