Document Fragment View

Matching Fragments

4. Defendant No. 2 filed applications saying that on the facts pleaded in the plaint, interpleader suit was barred by a tenant against the landlord in view of Order 35 Rule 5 of the Code. These applications of defendant No. 2 have been dismissed by the trial Court and thus these are revisions by defendant No. 2.

5. After going through the plaint, written statements of both the defendant, and other material on record, which has been supplied by counsel of Gokal Chand plaintiff and on consideration thereof, I am of view that the interpleader suit is not maintainable, on the facts alleged in the plaint.

6. Order 35 Rule 5 of the Code clearly bars such a suit by a tenant against the landlord unless seemingly a dispute arises between lie landlord due to which a tenant may be in predicament &s to whom to pay the rent. This is not the case here. According to the tenant and defendant No. 1, there is relationship of landlord and tenant between them and if that is so even if defendant No. 2 wanted to claim rent, interpleader suit on these simple facts was not mountable . Even the contrary if the tenancy was created by defendant No. 2 in favour of the plaintiff and later on defendant No. J want to claim rent from the plaintiff, that should not have furnished a cause to file interpleader Suit.

7. Two illustrations have been mentioned in order 35 Rule 5 of the Code and the trial Court in not dismissing the interpleader suit as not maintainable, has relied on illustration. That illustration h net applicable to the facts of the case and if one has to analyze illustrations (a) and (b) than illustration (a) would have been more apt to the facts of the case then illustration (b).

8. The trial Court also erred in law in relying on a decision of this Court in 1981 Shmla Law Journal, Punjab & Haryana 241, is not dismissing the interpleader suit. There, the facts were entirely different While the tenant was paying the rent to the landlord from whom he had taken the premises on lease, another person, who was father of the original landlord filed an ejectment application against the tenant on the ground of non-payment of rent and in those proceedings, the tenant had to tender the rent under protest of safeguard his tenancy. On those facts the interpleader suit alongwith relief for refund was filed and it was held that such a suit was maintainable Such examples can be multiplied. Another example can be where the original tenant dies and on his dearth two persons come forward to claim ownership. In such a situation, it will have to be seen as to who is the real heir to the estate,

9. In this case, there is no such dispute whatsoever. The tenant did take possession of the premises either from defendant No. l or defendant No. 2 and remained in possession. They are bound to pay rent to whom they hive been paying so far and if necessary to restore possession to that person Merely by raising the allegations that both the defendant are claiming rent would not justify filing of the interpleader suit Since there is no other cause shown in the plaint for filing of the interpleader suit, the suit is clearly misconceived.