Madhya Pradesh High Court
Smt.Sudha Gupta vs Ramesh Kumar Sachdeva on 20 January, 2017
Author: Anand Pathak
Bench: Anand Pathak
1 Writ Petition No.906/2014
(Smt. Sudha Gupta and others vs. Ramesh Kumar Sachdeva (dead)
through Lrs. Smt. Reshma and others)
20/01/2017
Shri V.K. Bhardwaj, Senior Advocate, assisted by Shri
Rohit Batham, Advocate for petitioners.
Shri P.C. Chandil, Advocate for respondent no.1.
Shri D.D. Bansal, Advocate for respondent no.2. This writ petition under Article 227 of the Constitution of India at the instance of petitioners/plaintiffs is directed against the order dated 25/7/2013 in civil suit No.11A/2010. Respondent/applicant's application under Order I Rule 10 CPC has been allowed in an eviction suit on the ground that the applicant has a better title and, therefore, is a landlord, hence, entitled to contest the suit for eviction.
2. Learned senior counsel for petitioners/plaintiffs taking exception to the order impugned contends that in a suit for eviction at the first instance the trial court is required to address upon landlord-tenant relationship if a suit is filed on grounds specified under the M.P. Accommodation Control Act, but in an eviction suit the trial court cannot venture into the arena of determining title interse between the plaintiff and the applicant seeking impleadment under Order I Rule 10 CPC on the premise that he has a better title to the suit property. That apart, plaintiff is a dominus litus and, therefore, it is the choice of the plaintiff to array persons against whom decree is sought. Learned counsel for the aforesaid proposition of law relies on the judgment of the Hon'ble Supreme Court in the case of Vijay Lata Sharma vs. Raj Pal and another reported in AIR 2004 SC 4390, 2 Writ Petition No.906/2014 (Smt. Sudha Gupta and others vs. Ramesh Kumar Sachdeva (dead) through Lrs. Smt. Reshma and others) judgment of the Division Bench of this Court in Civil Revision No.279/1984 decided on 19/10/1984 (Hon'ble Shri Justice G.L. Oza, Acting Chief Justice and Hon'ble Shri Justice U.N. Bhachawat, as Their Lordships then were) in the case of Sunil v. Satyanarayan Dubey reported in 1984 MPWN 555, judgments of Single Bench of this Court in the cases of Dr. Dilip Mahadik and another vs. Ramesh Chandra Mahadik and Others reported in 2012 AIR CC 2324 (MP) [Hon'ble Shri Justice Sujoy Paul], Rajendra Prasad and another v. Vidhyaram Sharma and others reported in 2016 (2) RN 26 (Hon'ble Shri Justice Anand Pathak) and an order of the Single Bench of this Court in the case of Ramesh Chand Sharma vs. Bhagwan Singh and another in writ petition No.2646/2012 decided on 24/09/2013 (Hon'ble Shri Justice S.K. Gangele).
3. Per contra, Shri Bansal and Shri Chandil, learned counsel for respondents, relied upon the judgment of the co- ordinate Bench of this Court (Hon'ble Shri Justice Sujoy Paul) in Writ Petition No.4727/2007 decided on 6/5/2013 in the case of Vishnu Swaroop Joshi v. Janki Prasad Kurele reported in 2013 (II) MPWN 57 with the contention that though suit is for eviction and for recovery of arrears of rent, however, if the applicant claims to be the owner of the premises, he deserves to be impleaded as a party to the suit.
4. Heard.
As the controversy, as projected by learned counsel for respondent/applicant, in the opinion of this Court is no more res integra in view of plethora of judgments of Hon'ble 3 Writ Petition No.906/2014 (Smt. Sudha Gupta and others vs. Ramesh Kumar Sachdeva (dead) through Lrs. Smt. Reshma and others) Supreme Court and various High Courts, wherein it has consistently been held that in a suit for eviction an application under Order I Rule 10 CPC by an applicant styling himself to be the owner in contrast to the landlord/plaintiff is not maintainable, as such an application giving rise to interse title dispute cannot be gone into in an eviction suit. The aforesaid view of this Court finds support from the judgment of Hon'ble Supreme Court in the case of Vijay Lata Sharma (supra), relevant para 6 and 9 are quoted below:-
"6. We have heard the learned counsel for the parties. The learned counsel for the appellant contended that respondent No. 2 is neither necessary nor proper party to the proceedings. He, therefore, could not be joined as party respondent in the proceedings under the Act. It was also submitted that the Authority under the Act has no jurisdiction to decide "title" to the property and the only question it has to consider is as to whether the "landlord" is entitled to possession on the grounds mentioned in the application for eviction. The counsel also submitted that it was not even the case of respondent No. 1 that the appellant and her mother were of entitled to rent. On the contrary, it was admitted by him that the rent was paid to them. In the circumstances, the order passed by the Prescribed Authority and confirmed by the High Court deserves to be set aside.4 Writ Petition No.906/2014
(Smt. Sudha Gupta and others vs. Ramesh Kumar Sachdeva (dead) through Lrs. Smt. Reshma and others)
9. In our view, in the facts and circumstances as mentioned in the release application and also the stand taken by the tenant in written statement and keeping in view the definition of "landlord" in Section 3(j), respondent No. 2 can neither be said to be necessary nor proper party to the proceedings. The question of title cannot be decided by the Prescribed Authority under the Act. The orders passed by the Prescribed Authority as well as the High Court, therefore, deserve to be quashed and set aside."
and judgment of the Division Bench of this Court in the case of Sunil (supra), relevant excerpts thereof reads as under:-
"The suit is between a landlord and a tenant based on the contract of tenancy. The suit of the plaintiff-landlord would succeed or fail on the proof or disproof of the contract of tenancy. It is a trite law that in a suit based on a contract of tenancy, the question of title cannot be gone into. If the applicants are allowed to be joined as a party, it would necessarily result in permitting the raising of a controversy as to the title to the suit accommodation, i.e., whether the applicants are also the owners of the suit accommodation and whether the defendants in the suit had the right to create the mortgage in question and whether that is binding on these applicants. This would, no doubt, alter the nature of the suit and also enlarge its scope. For deciding the suit as filed by the 5 Writ Petition No.906/2014 (Smt. Sudha Gupta and others vs. Ramesh Kumar Sachdeva (dead) through Lrs. Smt. Reshma and others) plaintiff non-applicant No.1 herein it is not necessary to adjudicate upon and settle the controversy on the basis of which the applicants pray for being joined as a necessary party. The plaintiff non-applicant No.1 herein has claimed no relief against the present applicants. The plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law. The plaintiff cannot be required to alter the nature of the suit and enlarge its scope on the ground that the addition of the party would avoid multiplicity of suits.
Learned counsel for the applicants had contended, relying on section 23 of the M.P. Accommodation Control Act, 1961 (for short, hereinafter referred to as 'the Act') that if they are not joined as parities and a decree is passed in the present suit against the defendants, who are non- applicants No.2 and 3 herein, the applicants would be ejected in the execution of that decree and, therefore, to protect their interest it is necessary that they should be joined as a party to the suit. The judgment that would be passed in the suit would be a judgment in personum and not a judgment in rem. It is a trite law that a decree, which is a decree in personum would not bind persons who are not parties to the suit and who do not claim under the parties to the suit. The 6 Writ Petition No.906/2014 (Smt. Sudha Gupta and others vs. Ramesh Kumar Sachdeva (dead) through Lrs. Smt. Reshma and others) argument of the learned counsel for the applicants is based on an incorrect reading of section 23 of the Act."
The aforesaid view has been reiterated by the coordinate Bench of this Court in the cases of Dr. Dilip Mahadik (supra), Rajendra Prasad (supra) and Ramesh Chand Sharma (supra). As such, the judgment cited by learned counsel for respondent/applicant viz. Vishnu Swaroop Joshi (supra), in view of aforesaid settled position of law, cannot be relied upon to justify the claim of the respondent/applicant, as this Court is bound by the judgments rendered by the Division Bench of this Court and law laid down by the Hon'ble Supreme Court under Article 142 of the Constitution of India.
5. In view of aforesaid, the impugned order of the trial court allowing the application of the applicant claiming better title to the suit property is found to be patently illegal and, therefore, cannot be sustained in the eyes of law. The impugned order is set aside. Accordingly, the writ petition stands allowed.
6. At this stage, Shri Bhardwaj, learned senior counsel for petitioners, submits that as the suit is of the year 2010 and more than six years' period has passed by, a direction may be issued for early disposal of the suit.
Prayer appears to be reasonable. Accordingly, before parting with the case it is considered apposite to observe that petitioners/landlord shall be at liberty to file an application before the trial court seeking early disposal of the 7 Writ Petition No.906/2014 (Smt. Sudha Gupta and others vs. Ramesh Kumar Sachdeva (dead) through Lrs. Smt. Reshma and others) suit. The trial court shall endeavour to decide the suit as early as possible preferably within nine months.
7. At this stage, Shri Bansal, learned counsel for respondent/applicant, submits that the applicant may be given liberty to bring an action by virtue of being owner of the suit property.
If law permits, respondent/applicant shall always be at liberty to take recourse to law before appropriate forum.
With the aforesaid, writ petition stands allowed and disposed of.
(Rohit Arya) Judge Arun*