Calcutta High Court
Hiran Bala Debi And Anr. vs Prodyut Kumar Mondal And Anr. on 23 April, 1990
Equivalent citations: (1991)1CALLT32(HC)
JUDGMENT Amulya Kumar Nandi, J.
1. This revision is directed against an Order No. 10 dated 15.6.88 made by the 5th Court of the Munsif at Alipore in Title Suit No. 64 of 1987.
2. The plaintiff-petitioners filed a suit for eviction against defendantopposite party No. 1 alleging that the opposite party No. 1 was a tenant under the plaintiffs in respect of the suit premises at a monthly rental of Rs. 115/-. Eviction has been sought for on the ground of default in the payment of rent since May, 1986 and reasonable requirement of the landlords for their own use and occupation. The tenancy is alleged to have been terminated by service of a notice to quit dated 12.9.86.
3. There is no controversy that the tenant-defendant No. 1 did not enter appearance and contest the suit. Tenant's wife Nanda Mandal figuring as opposite party No. 2 in this revision filed an application under Order 1 Rule 10 C.P. Code for being impleaded as a party defendant in the suit. In her petition she claims to be the ostensible tenant and a benamder of the husband. The allegegation is that her husband took settlement in 1976 at a monthly rental of Rs. 115/-. Since the inception of tenancy the wife is living in the suit premises with her three children. Her husband has been transferred to Bilaspur in the State of Madhya Pradesh. The wife paid rent till April 1986 to the previous landlord. On receipt of a letter from Maniklal Chatterjee she has been paying rent to the plaintiffs who granted receipts. Since 1977 the husband is reluctant to keep contact with the family and so she intends to be added as a party.
4. The petitioners filed an objection against the petition for addition. It is stated that the opposite party No. 1 defendant was a tenant since 1976 until the tenancy was determined by a notice to quit dated 12.9.86. It is admitted that the plaintiff No. 2 wrote a letter to the defendant intimating him to pay rent to the plaintiff No. 1. Monthly rent was paid for and on behalf of the defendant. The opposite party No. 2 acquired no interest in the tenancy. It is, however, admitted that the defendant was inducted by the original landlord Naresh Chandra. The opposite party No. 2 having acquired no interest in the property cannot be added as a party.
5. Admittedly the defendant was a tenant in respect of the suit premises under Naresh Chandra since 1976. There is no dispute either that since the inception of tenancy the opposite party No. 2 is living in the suit premises with her children. It is not controverted either that her husband opposite party no, 1 has been transferred to Bilaspur in 1977 and since then the husband does not maintain any contact With the wife. It is not in contro- versy that the wife paid rent to the previous landlord till April, 1986. Her assertion in her petition that she paid rent to the plaintiffs thereafter on receipt of a letter from plaintiff No. 2 is also not challenged.
6. The fact remains that her husband, the defendant-tenant does not contest the suit. So the wife-opposite party No. 2 has to suffer the result of an ex parte decree. Despite her plea that the landlords accepted rent all throughout from her since her husband left her in 1977 she cannot be heard to say that there is no default in the payment of rent, in a suit for eviction on the ground of default and reasonable requirement of the landlord. She cannot tell the court either that the plea of reasonable requirement of the landlord is not bonafide. As a matter of fact, the requirements under sec- tion 13 of the West Bengal Premises Tenancy Act have to be proved in order to get a decree for eviction else otherwise the decree for eviction is void. Supreme Court refused to grant a stamp of sanction of a compromise or consent decree which was bereft of a finding that those grounds for eviction existed in Kautihalya Devi v. K. P. Banshal, ; Roshanlal v. Madanlal, ; Nai Bai v. Lala . Ramnarain, . In this case the grounds pleaded by the land- lord cannot be tested by cross-examination. Court has to swallow the ex parte evidence of default and reasonable requirement even though the grounds may not survive on being tested by cross-examination. Under such circumstances the wife presumably takes refuge under Order 1 Rule 10(2) of the Code of Civil Procedure.
7. Order 1 Rule 10(2) : The court may, at any stage of the proceed- ing, 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 neces- sary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added (underlines are mine).
8. In the instant case the presence of the wife is necessary to enable the court effctually and completely adjudicate upon and settle all questions, viz., default and reasonable requirement.
9. I am not unmindful to the theory as propounded in Gansalo De Filo-mona-Lines etc. v. Inacio Pledade Hildebarto Fernandes and Ors. (AIR 1977 Goa 4). As a rule Court will not add a person as a defendant in a suit when the plaintiff is opposed to such addition since the plaintiff is the dominus litis. , In the same tone opinion was expressed in Bara Hanuman Temple Durgain v. Gurbux Lal Malhotra (AIR 1978 Punj. 192). But it was- observed what the word 'may' in sub-rule (2) of Order 1 Rule 10 of the Code gives a discretion to the court and where it finds that the addition of a new defendant is absolutely necessary to adjudicate effectively and com- pletely the matter in controvercy between the parties, the court will add a person as defendant even without consent of the plaintiff. In B. Somiah v. Amina Begum it was held that an application under Order 1 Rule 10 C.P. Code to be allowed when it is really necessary for a complete adjudication of the questions involved in the suit. Kararnatak High Court found in Narayana Rao Swami Rao Kulkarni v. Bheema Rao Swami Rao Kulkarni that in order to add a defendant Court has to see whether the person has a direct interest in the subject matter of litigation, Delhi High Court upheld the addition of a person in occupation of a premises for a long time in a suit for ejectment in Devi Dayal Dixit v. Rashtriya Electrical and Engineering Co. . Court relied upon the, doctrine of 'effective and complete adjudication', Madras High Court held in P. R. Nattathamla v. V. Raghavan that a party has to be added in a proper case even if he is no co nomine a party to the litigation but is bound by the result of the suit.
10. Supreme Court has examined the question of addition of a party in Razia Begum v. Sahabzadi Anwar Begum and Ors. . In that case a lady sued a person for a declaration that she was the. legally-wedded wife of the defendant and other relief. The defendant ad- mitted the claim of the pleintiff in his written statement. A third party and her minor son intervened and claimed to be the wife and child of the defen- dant. The court very much weiged the consideration that the effect of the decree could very much affect the interveners. It also confirmed the find- ing that in order to adjudicate and settle the present controversy completely and effectively the presence of the interveners was necessary. The Court confirmed that they were no necessary parties to the suit. In course of the discussion Court relied upon the observation of Lindley LJ in Mosar v. Marsden (1892) 1892-1 Ch. 487. It was held that a party who is not directly interested in the issues between the plaintiff and the defendant can- not be added as a defendant, Court had taken into account the question of injury of the interveners. Court considered that no new' cause of action would be introduced and that on account of addition no new issue has to be tried. Finally by a majority verdict the court upheld the addition of interveners.
11. Out of several tests the important tests are : (1) whether the result of the suit will affect a third party applicant, (2) whether the court will be required to answer any issue other than those arising or would arise from the pleadings of the parties to the suit and (3) whether the presence of party will facilitate effective and complete adjudication of all questions in- volved in the suit.
12. The opposite party No. 2 satisfies all the tests. The result of the ex parte decree will very much affect her. Her plea of benami may not be tenable in law. Nevertheless, despite her presence Court will not be required to answer any issue other than those that would arise from the written statement of the husband-tenant. The wife cannot take or be permit- ted to take any defence that her husband could not take. And thirdly, her presence is very much necessary for complete and effective adjudication of the questions involved in the suit, viz. whether there was default and whe- ther the landlords reasonably require the suit premises for their own use and occupation.
13. The petitioners rely upon an unreported Bench decision of this Court in Ranubala Ghosh v. Nirmal Kumar Basak (CO. 1713 of 1989) delivered on Feb. 6, 1990. The petition for addition was rejected on the ground that the court would be required ,to decide a new isssue, viz. whe- ther the petitioner became a direct tenant under the landlord after surren- der of tenancy by the husband. In B. K. Dutt v. Nita Madan and Anr. the landlord sued a lady for eviction impleading her as his tenant. Husband sought to be added in the suit on his plea that he was the tenant while the wife did not disown tenancy. In this case also a new issue will arise as to whether the husband is the tenant. The members of a mess asked for addition in a suit for ejectment against one of the mem- bers of the mess who accepted the tenancy. Allegation was that the defen- dant was not seriously contesting -the suit. Court refused addition in Golokesh Chandra Ghosh v. Koley Properties (P) Ltd. (1978(1) CLJ 440). None of the cases cited by the petitioners satisfies the test laid down by me above. So they have no application in the instant case. The deci- sion in Bhishnupada Jana v. Gurupada Manna (1977(1) CLJ 136) cited by the petitioners has no relevance in this case.
14. The opposite party refers to a Bench decision in Dr. A. K. Roy v. J. C. Roychowdhury . In that suit the wife was added while the husband did not take any interest in the suit.
15. In the instant case the wife cannot be allowed to suffer the conse- quence of an ex parte decree while she can very well contest the suit on the pleas that could be taken by the husband since she claims under the hus- band. She cannot, however, take altogether new plea which her husband could not take by way of defence nor can she take any plea which is not available to her under the law.
16. In view of my foregoing conclusion the revisional application fails. Let a copy of this order go down to the Court below forthwith.