Delhi District Court
Suhas Chand Gupta vs Nathu'S Pastry Shop on 25 May, 2012
1
IN THE COURT OF Ms. VEENA RANI : ADDITIONAL RENT CONTROLLER
NEW DELHI DISTRICT : PATIALA HOUSE COURTS, NEW DELHI
Case No:E21/08
Suhas Chand Gupta .....Petitioner
Versus
Nathu's Pastry Shop .....Respondent
ORDER
1. Vide this order I shall decide the application under order 1 rule 10 CPC filed by the applicant M/s Nathu's Pastry Shop/respondent no.1 and Dr. Anoop Gupta/2 for impleading NDMC as a necessary party in the present proceeding.
2. Briefly stated the facts as stated in the present application are that the petitioner has claimed to be absolute owner and landlord of the premises bearing shop no. 1213 and quarter no. 58, plot no. 4, block 205C, Bengali Market, New Delhi 01 and has sought eviction of the applicants herein on the ground of subletting of the tenanted premises. It is stated in the application that as per the allegation of the petitioner, Governor General in Council executed a Prepetual Lease Deed dated 17.3.1941 in favour Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 2 of the Laman Das Ram Chand and L&DO subsequently done a mutation in favour of Smt. Vidyawati, grandmother of the petitioner. The petitioner claims his rights through the above said Perpetual Lease Deed dated 17.3.1941 but the petitioner does not even claim that there is a mutation in the government records in his favour. It is further stated that the petitioner has concealed the vital and material facts from the Court that the L&DO has cancelled/withdrawn the Principal Perpetual Lease and has already caused reentry into the suit property in the year 1968/1975 itself and thus, the petitioner does not have any right, title or interest in respect of the suit property. It is further averred that these property now vest in the name of The President of India and vide notification dated 24.3.2006, the ownership of the suit property vests with the NDMC only. Further, several communications through RTI to NDMC it was informed that the L&DO had caused reentry into the property bearing shop no. 1213, Bengali Market, New Delhi; Shop no. 58, Bengali Market, New Delhi; Quarter no. 59, shop no.3, Block no. 205/C, Bengali Market, New Delhi and that the ownership of the entire plot no.3 and 4, Bengali Market, New Delhi vests in the President of India which now stands transferred to NDMC vide Government of India's notification dated 24.3.2006. It is further stated by the respondent no.1 and 2 that they are making regular payments of rent to the NDMC in respect of the possession of the suit premises. It is stated that in other pending civil suits for permanent and mandatory injunction in respect of the above stated suit premises inter alia alleging illegal construction, the petitioner/plaintiff had himself impleaded NDMC as one of the defendant. It is submitted that NDMC has all the rights of Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 3 ownership in respect of the suit premises. The petitioner with ulterior motives and in order to get favourable order at the back of the NDMC has not impleaded NDMC as a party in the present petition. It is further submitted that NDMC is a necessary party and same be impleaded in the array of parties for proper and fair adjudication of the present case. It is stated that prejudice shall be caused to the occupancy rights of respondent no. 1 and 2 in case NDMC is not impleaded as party in the present case.
3. Petitioner filed reply to the application of the applicant and raised objection and stated that same is filed with malafide intentions only to delay the disposal of the present petition. It is stated by the petitioner that the respondents present application is not maintainable on the ground that respondents wants to convert the eviction petition into the title petition by filing the present application which is not permissible in the eyes of law. It is further submitted that the respondent is liable to be evicted from the premises on the ground of subletting and the respondent cannot force the petitioner to make NDMC a party in the present petition. It is further replied that NDMC is neither a necessary nor a proper party to the present petition. The contents of the application under order 1 rule 10 CPC are denied by the petitioner and stated to be false and wrong. It is further submitted that the prayer clause of the application is highly false, frivolous, malicious and vexatious and needs no consideration of the Court.
4. I have heard ld. Counsel for the parties and applicant and perused the record Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 4 carefully.
5. It is argued by the Ld. Counsel for the applicant/respondent no.1 and 2 that the petitioner has concealed the vital and material facts and the petitioner has no locus whatsoever to file the present eviction petition. It is further argued that the NDMC is the exclusive owner of the suit premises and the respondent no.1 and 2 are regularly paying rent to the NDMC in respect of the suit premises. It is argued that with the presence and impleadment of NDMC as a party in the present proceedings, fair and proper adjudication of the present matter is possible.
6. On the other hand, it is argued by the Ld. Counsel for the petitioner that the present application is liable to be rejected as the same is filed with malafide intentions. It is further argued that the petition was filed in October, 2002 and the respondents were served with the notice of the same. Respondents have already filed their written statement and now the matter is at the stage of evidence. At this stage, the present application under order 1 rule 10 CPC is filed just to delay the proceedings of the case. It is argued that presence of NDMC is not required for the disposal of the present eviction petition.
7. In order to decide the question, as framed hereinearlier, it is necessary to consider the relevant provisions of the Code of Civil Procedure (in short the CPC) under which Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 5 the Court is empowered to add a party in the suit. There are certain special statutes which clearly provide as to who are the persons to be made as parties in the proceeding/suit filed under that special statute. So far as addition of parties under the CPC is concerned, such a power of addition of parties emanates from Order 1 Rule 10 of the CPC :
Rule 10.(1) "Where a suit has been instituted in the name of the wrong persons as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) The Court may at any stage of the 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.
(3).........................
(4).........................
Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 6 (5)........................."
(Omitted since not necessary)
8. Under subpara (2) of O. 1. Rule 10, Civil Procedure code a person may be added as a party to a suit in two ,cases only, a. when he ought to have been joined and is not so joined, i.e., when he is a necessary party, or, b. when without his presence the questions in the suit cannot be completely decided.
9. The necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.
10. There is difference of judicial opinion among the High courts on the question, whether the Court has power under Order 1, rule 10, Civil Procedure Code, to direct a person to be impleaded as a defendant when the plaintiff is opposed to his Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 7 addition as a party. The Jammu and Kashmir High Court in Bindru V. Sada Ram, AIR 1960 T & K 67, and Andhra Pradesh High court in Razia Begun V. Anwar Begun, AIR 1958 Andh Pra 195, have taken the view that the court has the power to implead a party if it considers that his presence is necessary or proper for disposing of the case, and that an order under the aforesaid rule can be made even if the plaintiff does not consent. On the other hand, the Madras High Court in Pryaga Dass V. Board of Commissioners , ILR 50 Mad 34 : (AIR 1926 Mad 836), Abdul Razack V. Mohammed shah, AIR 1962 Mad 346, the Madhya Pradesh High Court in Mujtabai Begun V. Mehhab Rehman, AIR 1959 Madh Pra 359, and the Andhra Pradesh High Court in Motiram Roshanlal Coal Co. V. District Committee, Dhanbad, AIR 1962 AP 357, have held that no person can be brought on record as defendant, if the plaintiff does not want him, and that if he is a necessary party the suit must fail on account of his nonjoinder.
11. The normal rule is that a party not impleaded should not be thrust upon a plaintiff because the plaintiff is a dominus litis. If the plaintiff has sought relief against a particular person, it is not the outlook of the court to see whether the relief should be claimed against other person. The object of the sub rule is to protect the interest of the party, who is not before the Court and who may be adversely affected by such order. Therefore a Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the master of the suit. He cannot be compelled to fight against a person against whom he Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 8 does not claim any relief. If opposition by the plaintiff to the addition of parties is to be disregarded as a rule, if would be putting a premium on the undesirable practice of third parties intruding to ventilate their own grievances, into a litigation commenced by one at his own expense against another. The word 'may' in subrule (2) imports a discretion. In exercising that discretion , the Courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Only in exceptional cases, where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectually and completely the matter in controversy between the parties, will it add a person as a defendant without the consent of the plaintiff.
12. Subrule(2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touch stone of Order I Rule 10 which provides that only a necessary or a proper party may be added. 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. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. The case really turns on the true Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 9 construction of the Rule in particular the meaning of the words "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." The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the Rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subjectmatter of the existing action, the Court has power to join intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.
13. A clear distinction has been drawn between suits relating to property and those in which the subjectmatter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 10 bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., 1956(1) All E.R. 273, wherein after quoting the observations of Wynn Parry, J. in Dollfus Mieg et Compagnie S.A v. Bank of England,(1950) 2 All E.R.611, that the true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subjectmatter of the action if those rights could be established, Devlin, J. has stated : "The test is `May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights." (see 1992 (2) SCC 524).
14. Order I Rule 10 of the Code of Civil Procedure deals with two kind of cases, one relating to necessary parties and the other what is known as proper parties. "Necessary parties are those in whose absence the legal proceedings would, in spite of the provisions of order I Rule, 9, fail. On the other hand, the proper parties are those whose presence is necessary to enable the court to effectually and completely adjudicate upon Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 11 and settle all the questions involved in the case. There are many authorities construing the provision of law.
15. The respondentapplicant is interested in bringing on record certain information sought under the Right to Information Act, 2005. But that would be subject to the admissibility laws under the Indian Evidence Act. The present case is at the stage of the evidence and the it respondent (alleged subtenants) are at liberty to bring there own defense. In the present case the NDMC is not the applicantherein. That is to say that the NDMC has not sought the impleadment, rather it is the respondent (subtenant) who is seeking the impleadment of the NDMC. Here it is to be seen what would be the effect of the decision on the legal rights of the NDMC. Whichever way the decision goes, the NDMC would have all its statutory rights intact. The respondentapplicant has vehemently relied upon the information that the NDMC has initiated the proceedings to 'reenter' the premises. It would be relevant to point out that the issue of 'reentry' is not before this court. The said issue is between the petitionerlandlord and the NDMC and constitutes a distinct 'cause of action' not connected with the present matter. 'Reentry' is a legal process which is initiated by the government agency under certain circumstances and is a matter between the landlord and the said agency. Every piece of land is ultimately traceable to government. "...it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 12 and in this view of the matter it could not be thought of that the Legislature when it used the term 'owner' in the provision of Section 14(1)(e) it thought of ownership as absolute ownership." (see (1987) 4 SCC 193 Smt. Shanti Sharma & Ors. Vs. Ved Prabha & Ors.)
16. It is wellsettled that even if all the coowners are not parties to the eviction petition if a coowner proves that he is the sole landlord the suit for eviction by a co owner would be maintainable even if the other coowners are not parties to the petition. That is the scheme of the DRC. The real question is what relief is sought from whom. If the petitionerherein is concealing any material fact connected with the petitionherein, he would meet his own fate during the legal course.
17. In eviction petition, necessary parties are always the landlord and the tenant. It is a dispute inter se them. Ordinarily, a third person, who is neither a landlord or a tenant, would not be impleaded as a party. (see Jaswinder Singh And Anr. vs Lakhbir Singh Walia And Anr. :(2000) 124 PLR 556).
18. In the case of Smt. Krishna and Anr. v. Smt. Shanti Devi and Anr., (19911)99 Punjab Law Reporter 374, the Hon'ble Punjab High Court concluded that the Rent Controller is not to decide and determine the question of title between the parties. The limited claim to be gone is as to if there is a relationship of landlord and tenant between the parties or not.
Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop 13
19. As far as the present application is concerned, it is without merits and is accordingly dismissed.
20. Now to put up for cross examination of respondent witness on 2372012. Announced in the open court on this 25th day of May , 2012. (VEENA RANI) ARC/ACJ/CCJ/New Delhi Case No:E21/08 Suhas Chand Gupta Vs. Nathu's Pastry Shop