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1976 DIGILAW 214 (PAT)

(Mohd) Sohail v. Zalfckar Haider

1976-11-03

B.P.SINHA, L.M.SHARMA

body1976
JUDGMENT The plaintiffs in a pending suit for eviction of opposite party no. 1 from a building are challenging, by this application, the order passed by the trial court adding opposite party nos. 2 to 5 as the defendants in the suit. 2. The plaintiffs-petitioners' case is that the building was let out by them to opposite party no.1 who became their tenant. An order was passed under section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act). For non-compliance with the direction of the court, the defence of the sole defendant (opposite party no.1) was struck off Opposite parties 2 to 4, who are sons of the original defendant, and opposite party no.5, who is his daughter, filed an application under Order I Rule 10 of the Code of Civil Procedure (hereinafter to be called the Code) for being added as party defendants on the ground that they are the tenants of the premises under the plaintiffs and that their father is in their (plaintiffs') collusion. The application was allowed in spite of objections by the plaintiffs. 3. It is manifest that the conditions in cither sub-rule (l) or (2) of Rule 10 of Order I are not satisfied in this case. It is not a case where opposite parties 2 to 5 ought to have been joined as defendants on the case of the plaintiffs. The plaintiffs do not accept them as tenants. It is also not a case where it is necessary to add them for the purpose of enabling the court to effectually and completely adjudicate and settle all the questions involved in the suit. The only question involved in the suit is as to whether the original defendant was the tenant of the landlords-and which fact was not denied by him at the time when he filed the written statement and whether a decree for eviction could be granted against him, in view of the state of law, including, the provisions of the Act. The plaintiffs have not asked for any relief against the intervenors nor do they accept that they are tenants. By their addition as defendants to the suit, new questions, which were not within the score of the suit as originally framed, have been introduced against the wishes of the petitioners. The plaintiffs have not asked for any relief against the intervenors nor do they accept that they are tenants. By their addition as defendants to the suit, new questions, which were not within the score of the suit as originally framed, have been introduced against the wishes of the petitioners. In the circumstances, the intervenors could not be forced upon the petitioners as defendants in the suit within the scope of Order 1 Rule 10 or section 151 of the Code. 4. Mr. Shamshul Hassan appearing for the opposite parties has contended that even assuming that the order passed by the court below is erroneous, this Court cannot interfere in its revisional jurisdiction. He has relied upon two decisions of the Supreme Court in Razia Begum V. Sahebzadi Anwar Begum and Messrs D.L.F. Housing and Construction Co. (p) Ltd. V. Sarup Singh. In the case of Messrs D.L.F. Housing and Construction Co., the Supreme Court held that, while exercising the Jurisdiction under section 115, the High Court is not competent to correct the errors of fact howsoever gross or even errors of law unless the said errors have relation to the jurisdiction of the court to try the dispute itself. This proposition is well known and nobody has, ever suggested that an exception can be made. However, it was not a case dealing with an application under Order 1 Rule 10 of the Code. In the case of Razia Begum the Supreme Court was directly considering the powers of the High Court under Section 115 of the Code, while dealing with an application under Order 1 Rule 10. It held that generally a question of addition of parties is not one 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 the particular case. The Supreme Court, while so holding, further observed that in some cases it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction or, in other words, of jurisdiction in the limited sense in which it is used in section 115 of the Code. The Supreme Court was considering a case where the dispute was in regard to the civil status of a person claiming to be the wife of another person. The Supreme Court was considering a case where the dispute was in regard to the civil status of a person claiming to be the wife of another person. The Court emphasised that in cases where legal character and status were in question, a liberal view could be taken in the matter of an application for addition of an intervenor. In suits relating to property the position was different. We, therefore, do not see as to how the decision of Razia Begum assists the opposite parties. In the case before us, the court below has completely failed to appreciate the relevant circumstances on which the jurisdiction to add a party depends. The learned Munsif has, therefore, acted in the exercise of jurisdiction with material irregularity and the High Court is authorised to correct the error. 5. We, accordingly, allow this revision application, set aside the order passed by the court below and dismiss the application' filed by opposite parties 2 to 5 for their addition as defendants. There will be no order as to cost. Application allowed.