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1991 DIGILAW 155 (RAJ)

Satish Chandra v. Bhonri Lal

1991-02-06

S.N.BHARGAVA

body1991
S.N. BHARGAVA, J.—This is a revision petition against the order of the learned Civil Judge, Hindaun City, rejecting the application of the petitioner-applicant filed under Order 1 Rule 10 CPC. 2. The plaintiff-non-petitioner No. 1 filed a suit on 31.7.1984 for eviction against the defehdant-non-petitioner No. 2 on several grounds including subletting the disputed shop to the petitioner. In para 5 of the plaint, it has been stated as under:- ^^mDr nqdku tksM+k rHkh ls izfroknh us fcuk btktr ds oknh fdlh eqdsk y?kq m|ksx fg.MkSu izksijkbZVj lrhk pUn tSu dks lcySV dj fn;k gS 3. The suit was contested by the defendent and in reply of para 4 of the plaint, it has been submitted as under: ^^izfroknh fnukad 31-3-81 rd dk fdjk;k oknh dks ;Fkk le; vnk dj pqdk gSA blds ckn fnukad 1-4-81 ls oknh us mDr tksM+k nqdku eqrnkfok esllZ eqdsk y?kq m|ksx] fg.MkSu izksijkbZVj lrhk pUn iq= uRFkhyky tkfr tSu fuoklh fg.MkSu dks 200@& :i;k ekgokj fdjk;s ij ns nh rFkk oknh fnukad 1-4-81 ls mDr eqdsk y?kq m|ksx] fg.MkSu ls ekgokjh fdjk;k ysdj fdjk;k izkfIr dk bUnzkt mDr eqdsk y?kq m|ksx dh jksdM+ cgh esa djok dj bUnzkt ds uhps vius gLrk{kj djrs jgsA ckn esa 1-3-83 ds ckn ds fdjk;k vnk;xh ds bUnzkt ds uhps oknh us gLrk{kj ;g dg dj ugh fd, fd vHkh rqels fyf[kr esa fdjk;kukek ugha fy[kk;k gS blfy, vxyh ubZ lky ds kq: esa tc eqdsk y?kq m|ksx ds uke ls fdjk;k ukek fy[kokÅWxk rc fdjk;kukek ij tek dj fn;k d:Wxk] bl izdkj eqdsk y?kq m|ksx us oknh dks fn- 30-11-83 rd dk fdjk;k vnk dj fn;kA mlds ckn dk fdjk;k mDr eqdsk y?kq m|ksx ds }kjk ;Fkk le; ckj ckj VS.Mj djus ds ckotwn oknh us fdjk;k c<+kus dh fu;r ls Lohdkj ugha fd;kA 4. Written statement was filed on 5.11.1984. The plaintiff filed a rejoinder to this part of the written statement on 23.4,1985 denying the allegations of the written statement. 5. During the pendency of the suit, the trial court determined the rent u/s 13 (3) of the Act which order was confirmed in appeal by order dated 23.11.1989 wherein also there is some discussion about this aspect. The trial court framed the issues. 5. During the pendency of the suit, the trial court determined the rent u/s 13 (3) of the Act which order was confirmed in appeal by order dated 23.11.1989 wherein also there is some discussion about this aspect. The trial court framed the issues. The petitioner filed an application under Order 1 Rule 10 C.P.C. on 23.1.1987 duly supported by an affidavit, to which a reply was also filed by the plaintiff on 16.1.1990, which is also supported by an affidavit of the plaintiff. Application of the petitioner filed under O. 1, R. 10 CPC was dismissed by order dated 23.1.1990 and it is against this order that the present revision petition has been filed by the petitioner. 6. Meanwhile the trial court framed the issues in which Issue No. 3 reads as under:- ^^vk;k izfroknh us oknxzLr ifjlj eqdsk y?kq m|ksx fg.MkSu ds izksijkbZVj lrhk tSu dks lc ysV dj fn;k gS\ 7. Learned counsel for the petitioner has very vehemently submitted that before filing the suit, a notice dated 16.1.1984 had been received from the plaintiff which was replied jointly on 15.2.1984 and in the written statement also, the case of the petitioner has been clearly stated. The petitioner thereafter had given a notice to the plaintiff on 26.3.1984, to know his bank account number so that petitioner could deposit rent regularly every month, but the plaintiff vide its reply dated 31.3.54 wrote back that since the petitioner was not his tenant, it was not necessary for him (plaintiff) to give his bank account number. Thereafter the petitioner deposited rent u/s 19A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Rent Control Act). He has drawn my attention to the original account book wherein the entries showing payment of rent made by the petitioner to the plaintiff had been signed by the plaintiff in token of having received the rent. Therefore, it was the duty of the plaintiff himself to have impleaded the petitioner as a party. The petitioner had also moved an application in the appellate court for impleading him as a party to the suit but the appellate court vide its order dated 9-10-1987 refused the application on the ground that the suit was pending in the trial court and it will be for the trial court to decide such an application. The petitioner had also moved an application in the appellate court for impleading him as a party to the suit but the appellate court vide its order dated 9-10-1987 refused the application on the ground that the suit was pending in the trial court and it will be for the trial court to decide such an application. In this connection, learned counsel for the petitioner has placed reliance on South Asia Industries Private Ltd. V.S.Sarup Singh (1) which has been lateron relied in Smt. Yamuna V.A. Rama Amin (2) wherein their lord-ships have held that a sub-lessee should be impleaded as a party because he alone is interested in showing that the sub-letting was a valid one and thereby meeting the ground of eviction, otherwise if an eviction order against the direct tenant is binding on the sub-lessee, they would be liable to be condemned without hearing It is no argument that the direct tenant would protect them. Direct tenant may be negligent or in-competent to defend or he may even collude with the landlord or he may not just bother. This authority has also been relied in Benimadhab Mahrotra V. Howrah Flour Mills Ltd. (3) wherein a sub-lessee was added as a defendant. Similar view has also been taken in M/s. Axad Nakodar Bus Service Pvt. Ltd. V. Col. Tirath in Mohammed Saleha V. Syed Nooruddin (4) (short notes). 8. He has also placed reliance on Changanlal Narsingh Pershad 5) wherein it has been held that a summary enquiry cannot be made as to whether relationship of landlord and tenant exists and therefore, at the time of deciding application under Order 1 Rule 10 CPC the trial court ought not to have dismissed the application summarily. 9. Learned counsel for the petitioner has further placed reliance on Har-bans Singh V E.R. Srinivasan (6) wherein the High Court, after detailed discussion and referring to several authorities, has held that it is true that the plaintiff in a suit is dominus litus and he cannot be made, against his consent, to fight a third party other than the defendant impleaded by him. But this is only the normal and general and not invariable rule and in an appropriate case a third party can be impleaded as a party. But this is only the normal and general and not invariable rule and in an appropriate case a third party can be impleaded as a party. In an ejectment suit by the landlord against the tenant if the third person applies for getting himself impleaded as a defendant on the ground that he was the real tenant, he is entitled to be impleaded as a defendant as it would avoid and prevent multiplicity of proceedings and the question would be completely and effectively decided in the presence of all the parties. 10. The same view has been expressed again in Devi Dayal Dixit V. M/s. Rashtriya Electrical and Engineering Co. (7). 11. Learned counsel for the petitioner has also placed reliance on Sanwarmal vs. Budh Mal (8) wherein his lordship, relying on South Asia Industriess case (supra) and Harbans Lals case (supra) has held that a subtenant is a necessary party in a suit for ejectment on the ground of sub-letting and the revision petition was allowed, the judgment of the trial court was set aside on this count and the application of the petitioner under Order 1 Rule 10 CPC for being impleaded as a party was allowed. 12. On the other hand, learned counsel for the respondent has very vehemently submitted that no revision lies against the order passed on an application under Order 1 Rule 10 CPC. The revisional court should not interfere with the discretion exercised by the trial court in this regard. The plaintiff cannot be forced to implead a person against his wish. He has further submitted that even if the order of the trial court is not proper or legal, this Court cannot interfer in revisional jurisdiction unless the impugned order, if allowed to stand, would occasion a failure of justice or would cause irreparable injury to the party against whom it was made. In this connection on Manindra Land and Building Corporation Ltd. V. Bhutnath Banerjee (9), M/s. D.L.F. Housing and Construction Co. (P) Ltd. vs. Sarup Singh (10), Pandurang Dhondi Chougule vs. Maruti Hari Jadhav (11), Hindustan Aeronautics vs. Ajit Prasad (12) and Kamlesh Kumar vs. Shiv Ratan (13) wherein it has been held that the trial court in refusing to implead sub-tenant as a party to ejectment suit has not failed to exercise jurisdiction and the revision is not maintainable. (P) Ltd. vs. Sarup Singh (10), Pandurang Dhondi Chougule vs. Maruti Hari Jadhav (11), Hindustan Aeronautics vs. Ajit Prasad (12) and Kamlesh Kumar vs. Shiv Ratan (13) wherein it has been held that the trial court in refusing to implead sub-tenant as a party to ejectment suit has not failed to exercise jurisdiction and the revision is not maintainable. It has further been observed that a sub-tenant cannot be impleaded as a party. 13. He has further placed reliance on Mahesh Sewa Samiti Bhilwara vs. U.I.T. Bhilwara (14) wherein it has been held that the trial court in allowing application under Order 1 Rule 10 CPC even if wrong, still revision should not be entertained as there is no failure of justice or irreparable injury has occasioned by such an order. 14. He has also placed reliance on P.V. George vs. M/s. Bank of Madura Ltd. (15) wherein it has been observed that so long as it has not been established that impleading a third party is necessary for the proper and effective adjudication of the issues involved in the suit and for completely settling the controversy between the parties, additional party cannot be impleaded without the consent of the plaintiff. 15. Reliance has also been placed on M/s. Bhalle Singh Subhash Chand vs. Ravi Datt (16) where the High Court refused to interfere in revision with the finding that the landlord having accepted the alleged sub-tenant as his tenant, as these findings were based on appreciation of evidence. 16. Learned counsel for the respondent has also placed reliance on Samast Panch Kaum Helan, Udaipur vs. Jameel Mohd. (17). In that case, the trial court had allowed the application of the Wakf Board for being impleaded as a party in a representative suit, for rendition of accounts, declaration, perpetual injunction and possession of shops situated outside Masjid, and the High Court dismissed the revision petition. 17. Reliance was also placed by learned counsel for the respondent on Mangal Singh vs. State of Rajasthan (18) wherein also revision filed against the order of the trial court allowing application under Order 1 Rule 10 CPC was dismissed as the impugned order would not occasion failure of justice or the petitioner would not suffer irreparable injury. 18. 17. Reliance was also placed by learned counsel for the respondent on Mangal Singh vs. State of Rajasthan (18) wherein also revision filed against the order of the trial court allowing application under Order 1 Rule 10 CPC was dismissed as the impugned order would not occasion failure of justice or the petitioner would not suffer irreparable injury. 18. He further placed reliance on Birendra Singh vs. Narendra Kumar (19) wherein this Court dismissed the revision petition in a case where an application for impleading as a party by the purchaser, in a suit for rent and ejectment was rejected. 19. I have given my thoughtful consideration to the whole matter. It is true that it is not open to the High Court in the exercise of its revisional jurisdiction u/s 115 C.P.C. to question a finding of fact, recorded by a subordinate court. It is also true that Sec. 115 C.P.C. applies to cases involving questions of jurisdiction i.e. questions regarding irregular exercise or non-exercise of jurisdiction or illegal assumption of jurisdiction by a court and not against an order even though it is not perfectly legal or justified. It is further true that it is not competent for the High Court to correct even errors of fact or errors of law unless the said errors have relation to the jurisdiction of the court to decide the dispute. After the amendment in Section 115 C.P.C. the High Court cannot interfere in revisional jurisdiction unless the impugned order, if allowed to stand, would occasion a failure of justice or shall cause irreparable injury to the party against whom it was made and therefore, it is necessary for us to examine the facts of the present case. Plaintiff Bhonrilal had filed a suit for rent and ejectment impleading Niranjan Lal only as a defendant. But before filing the suit, the plaintiff had given a notice both to the petitioner as well as Niranjan Lal and that notice was duly replied by them mentioning clearly that Niranjan Lal was the tenant upto 31,3.1981 but from 1.4.1981, it was M/s. Mukesh Laghu Udyog, Prop. Satish Chand had become the tenant and it may be averred that rent is being received by the plaintiff from M/s. Mukesh Laghu Udyog. Satish Chand had become the tenant and it may be averred that rent is being received by the plaintiff from M/s. Mukesh Laghu Udyog. Mukesh Lagbu Udyog had also given a notice asking for the number of the bank account so that the rent could be deposited in his account regularly, That notice was duly replied by the plaintiff but the number of the bank account was not supplied because according to the plaintiff it was only Niranjan Lal who was his tenant. Then lateron M/s. Mukesh Laghu Udyog deposited the rent u/s 19A of the Rent Control Act. The petitioner had also applied in the appellate court but the appellate court did not acceed to his request vide his order dated 9.10.1987. Thus, we find that the plaintiff was fully aware of the case of the petitioner that he was his direct tenant on and from 1. 4.1981 and therefore, it was proper and necessary for the plaintiff to have impleaded the petitioner as the defendant No. 2. He having failed, the petitioner made an application under Order 1 Rule 10 C.P.C but the trial court has dismissed that application. In his application filed under Order 1 Rule 10 CPC, the petitioner has further submitted that he has no faith in Niranjan Lal that he will protect his interest. In the present case, one of the grounds of ejectment is also subletting by the original tenant Niranjan Lal to the petitioner. Their lordships in South Asia Industriess case ( supra ) has held that a sub-tenant is a necessary party, inasmuch as it is only the sub tenant who is interested in defending the suit. That judgment of the Supreme Court has been followed by Karnataka High Court in Smt. Yamunas case (supra), by Calcutta High Court in the case of Benimadhab Mehrotra (supra) and by the Delhi High Court in Harbans Singhs case (supra). If a sub-tenant is not impleaded as a party in the suit for eviction and if a sub-tenant is liable to be evicted in an execution decree against the tenant, the sub-tenant will suffer an irreparable injury and this will occasion a failure of justice because he will be evicted without taking any defence because it may be that the tenant may be negligent or in competent. He may be in collusion with the land-lord or he may not just bother, as are the allegations here also in the application under Order 1 Rule 10 CPC. Therefore, a sub-lessee is also entitled to be heard to oppose a decree for eviction. This view was taken by our own High Court in Sanwar Mals case (supra) with which I am in full agreement. In that case, learned Single Judge had referred to the earlier case of Kamlesh Kumar relied by learned counsel for the respondents in this case and the said case was distinguished. Other cases relied on by the learned counsel for the respondents are distinguishable; some of them are cases where the application under Order 1 Rule 10 C.P.C. was allowed by the trial court and the High Court refused to interfere in revision because the order allowing addition of party would not cause failure of justice or irreparable injury, but in the present case things are different and application under Order 1 Rule 10 CPC filed by the sub-lessee according to the plaintiff, and direct tenant according to the petitioner, has been dismissed by the trial Court and if decree is passed without impleading him as a party, he is bound to suffer an irreparable injury and will also occasion failure of justice. Moreover, if the petitioner is allowed to be impleaded as a party, it would avoid multiplicity of proceedings. Even the Kerala High Court in the case of George (supra), relied by the learned counsel for the respondent himself, has observed that a party can be impleaded if addition is necessary for the proper and effective adjudication of the issues involved in the suit and for completely settling the controversy between the parties. Moreover, in the present case, plea of the petitioner is that he is not the sub-tenant but a direct tenant and this was known to the plaintiff even before filing the present suit-Thus, I find that the petitioner was a necessary party and the learned court below has seriously erred in not exercising the jurisdiction in impleading the petitioner as a party by allowing the application under Order 1 Rule 10 CPC 20. In this view of the matter, I am inclined of allow this revision petition and set aside the order of the trial court. In this view of the matter, I am inclined of allow this revision petition and set aside the order of the trial court. Application under Order 1 Rule 10 CPC filed by the petitioner for being impleaded as a party is allowed. No order as to costs.