Madhya Pradesh High Court
Sunil And Ors. vs Satyanarayan Dubey And Ors. on 19 October, 1984
Equivalent citations: AIR 1985 MADHYA PRADESH 199, (1985) JAB LJ 191 1985 MPRCJ 6, 1985 MPRCJ 6
Author: G.L. Oza
Bench: G.L. Oza
JUDGMENT U.N. Bhachawat, J.
1. This case has come up before us on a reference, whereby the following question has been referred to this Bench for decision :
"Whether in a landlord's suit for eviction from a residential accommodation of a Hindu male and the letter's widowed mother on the averments that they executed a registered conditional sale deed and a rent note in the plaintiffs favour, the presence of the male defendant's younger brother, a younger sister, and their deceased elder brother's widow and her minor children (claiming to be in physical possession of the suit accommodation as of right as coparceners and not as the plaintiff's tenants) is in law necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions in the suit?"
2. The short facts leading to this reference and essential for the decision of the question are these :
3. The plaintiff-non-applicant 1 herein has filed a suit for ejectment and arrears of rent against non-applicants 2 and 3 on the basis of a contract of tenancy between non-applicant 1 on the one part and non-applicants 2 and 3 on the other part. The case of non-applicant 1 is that non-applicants 2 and 3 executed a mortgage by conditional sale with delivery of possession of the suit accommodation to him and took it back on lease on monthly rent of Rs. 200/-, executing a rent note in his favour acknowledging the tenancy. In this suit the applicants herein filed an application under Order 1, Rule 10 read with Section 151, Civil P. C. for their being joined as defendants in the suit. In this application they submitted that the suit house belonged to late Ayodhya Prasad, the father of applicants 1 and 2 and non-applicant 2, they along with non-applicants 2 and 3 are the heirs of late Ayodhya Prasad and, as such, are in possession of the suit house in their own right, and the non-applicants 2 and 3 had no right to create the said mortgage. On these submissions, they contended that if the suit is decreed, their interest in the suit accommodation would be directly affected by the decree and in execution of that decree they would be dispossessed from the suit accommodation; therefore, they should be joined as defendants in the suit.
4. The trial Court vide its order dated 10th February 1984 dismissed the application of the applicants.
5. The applicants on being aggrieved filed the present revision. The learned single Judge on having found that there was a conflict of views in the two decisions of this Court, viz; Ishaq Ahmed v. Ramsingh, 1976 Jab U (SN) 81 and Saifuddin v. Manibai, 1977 MP U (SN) 47 referred the above question for decision by a Division Bench.
6. After having heard learned Counsel for the parties, we are of the view that the question should be answered in the negative.
7. 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 also are 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 plaintiff-non-applicant 1 herein it is not necessary to adjudicate upon and settle the controversy on the basis of which the applicants prayed for being joined as a necessary party. The plaintiff-non-applicant 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.
8. 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 parties and a decree is passed in the present suit against the defendants, who are non-applicants 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 personam and not a judgment in rem. It is a trite law that a decree, which is a decree in personam, would not bind persons who are not parties to the suit and who do not claim under the parties to the suit. The argument of the learned counsel for the applicants is based on an incorrect reading of Section 23 of the Act. Section 23 of the Act reads as under :
"23. Vacant possession to landlord.--Notwithstanding anything contained in any other law, where the interest of a tenant in any accommodation is determined for any reason whatsoever and any decree or order is passed by a Court under this Act for the recovery of possession of such accommodation, the decree or order shall, subject to the provisions of Section 16, be binding on all persons who may be in occupation of the accommodation, and vacant possession thereof, shall be given to the landlord by evicting all such persons therefrom :
Provided that nothing in this section shall apply to any person who has an independent title to such accommodation."
The proviso to the forequoted section clearly lays down that a person, who in occupation of an accommodation, is not a tenant and is also not there on behalf of the tenant, against whom a decree is passed, but who has his own independent title in the accommodation directed to be vacated, cannot be called upon to vacate the accommodation under the decree passed against the tenant and not against him. Thus, on the ground of apprehension of the execution of the decree against them under Section 23 of the Act also, the applicants are not necessary parties.
9. The questions involved in the suit are the contract of tenancy and the ground for ejectment. The suit would succeed or fail, as already stated hereinabove, on the plaintiffs proving or failing to prove the contract of tenancy and the grounds for ejectment. To decide these questions, the presense of the applicants is not necessary to enable the Court to effectually and completely adjudicate upon these questions. The question of proper parties had also to be decided bearing in mind the scope of the suit and, as already stated hereinabove, by adding these persons as parties, the nature of the suit would alter and scope would enlarge.
10. In the light of the foregoing discussion we are of the view that the present applicants are neither necessary parties nor proper parties. If they have any claim on the grounds urged in the application the better course for them is to file a separate suit. The view taken by us is in line with a Full Bench decision of this Court in Panna Khushali v. Jeewanlal 1976 Jab LJ 84 : (AIR 1976 Madh Pra 148) and the decision of the Supreme Court in Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewala, AIR 1953 SC 73.
11. The principle laid down regarding the joinder of parties in Panna's case (supra), as capsulised in the head notes, is set out hereinbelow :
(1) In Sub-rule (2) of Rule 10 of Order 1. There are two expressions (i) "who ought to have been joined" and (ii) "whose presence before the Court may be necessary." These expressions indicate that there are two categories of parties, (a) necessary party as indicated by the expression "ought to have been joined," and (b) proper parties as indicated by the expression "whose presence before the Court may be necessary." The Court has no jurisdiction or power to add a person as a party who is neither a necessary party nor a proper party.
The tests for determining whether a party is a necessary party are : --
(i) There must be a right to some relief against such party in respect of the matter involved in the proceeding in question.
(ii) It should not be possible to pass an effective decree in the absence of such a party.
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 change the nature of his suit on the ground that the addition of a party is necessary to avoid multiplicity of suits.
(2) In a suit for specific performance of a contract for sale in respect of a property against the defendant, some person who applies for being impleaded as party to the suit on the ground that he has a right by birth in the suit property, cannot be joined as a party under Order 1, Rule 10 of the Code, because if such a person was allowed to intervene in the suit as party the nature of the suit will change from a suit for specific performance of a contract to that of a suit for title."
12. In Importers and Manufacturers Ltd.'s case (AIR 1953 SC 73) (supra) the observation of the Supreme Court;
"The joinder of such a proper party cannot alter the character of the suit and does not make the suit any the less a suit between the landlord and the tenant or take it out of Section 27 of the Act."
goes to show that in case by joining a person as a party, the character of the suit is altered, then that person should not be joined as the party to the suit.
13. In this view of the matter, we are of the opinion that the view taken by the learned Single Bench in Saifuddin's case (1976 MP LJ (SN) 47) (supra) is the proper view. As already stated, the question is answered in the negative, i.e. in the present suit the applicants are neither necessary parties nor proper parties.
14. No order as to costs.