Sivendra Kishore Bose v. Radharaman Mukherjee — 1991 DIGILAW 231 (PAT)

JUDGMENT S.B. Sinha, J. These two Civil, Revision application were taken up for healing together Bad lire being disposed of by this common judgment. 2. In Civil Revision No. 47 of 1991(R) the petitioner, was the plaintiff before the court below, has questioned the legality and validity of an order dated 21.12.1990 passed by Shri S.D. Singh, Subordinate Judge-I, Incharge, Jamahedpur in Eviction Suit No.5 of 1990, whereby and whereunder, he allowed an application filed by the opposite party no. 2 purported to be under Order I Rule 10 of the Code of Civil procedure. 3. In Civil Revision No.48 of 1991 (R) and order dated 23.1.1991 palled by the learned court below in the aforementioned suit has been question inter alia, on the ground that no Pleader Commissioner could have been appointed at the instance of the opposite party no. 2. 4. The basic facts of this case are not in dispute. The aforementioned petitioner filed the aforementioned Eviction suit no 5 of 1990 as against the defendant opposite party no.1, on the ground that: (a) he has committed breach of tenancy: (b) the plaintiffs bonafide and in good faith requires the tenanted permises; (c) the defendant-opposite party no. 1 is a defaulter in payment of rent. 6. The defendant opposite party no. 1 appeared in the aforementioned suit and filed a written statement, inter alia, denying the relationship of landlord and tenant. He in his written statement further alleged that one Jai Shankar Mishra was the owner of the suit land. 7. The plaintiff in this suit filed an application under Section 15 of the Bihar Buildings (Lease, Rent & Eviction Control Act, 1982 (hereinafter referred to as the Act) and by an order dated 14.9.1990, the learned court allowed the said application and directed the defendant to deposit the arrears of rent as also the current and future monthly rent. 8. The opposite party no.1, thereafter, filed a Civil Revision application in this Court against the said order which was registered as Civil Revision No. 486 of 1990(R) but the same was dismissed. 9. According to the plaintiff, thereafter the defendant no.1 deposited the rent in terms of the aforementioned order dated 14.9.1990 passed by the learned court below under Section 15 of the Act. 10. The petitioner has contended that thereafter the defendant no. 1 in collusion with defendant no. 9. According to the plaintiff, thereafter the defendant no.1 deposited the rent in terms of the aforementioned order dated 14.9.1990 passed by the learned court below under Section 15 of the Act. 10. The petitioner has contended that thereafter the defendant no. 1 in collusion with defendant no. 2 got an application filed on 19.9.1990 purported to be under Order 1 Rule 10 of the Civil Procedure Code, whereby and whereunder, it was prayed that she be impleaded as party-defendant in the suit. In that application, it was alleged that the suit premises originally belonged to Jai Shankar Mishra and she had purchased the same by reason of a deed of sale dated 29.5.1990. A copy of the said application is contained in Annexure-2 to the Civil Revision application. 11. The petitioner filed a rejoinder on 1.12.1990 to the said application alleging therein that the opposite party no. 2 being a third party should not be allowed to be impleaded as party therein in the suit. In that rejoinder, the plaintiff petitioner stated as follows :- “That the defendant having lost the H.R.C. cases filed by him against the plaintiff before the Controller under the BBC Act, (vide H.R.C. Case No. 69 of 1986) started making some collusive deal with several Criminals, namely Y.K. Mishra, who is working in the D.I.G. Police Office at Ranchi, one Kanchan Ojha and K.K. Mishra and his brother J.K. Mishra, who are all accused in a criminal case vide J. 8/1 Case No. 184 of 1990 under Section 448, 456, 109/34 of the I.P.C. pending in the court of Sri R.D. Singh, Judicial Magistrate, at Jamshedpur, instituted by the plaintiff through the attorney for their having committed house tresspass by night on 11.6.1990 and 13.6.1990. The aforesaid accused persons Y.K. Mishra, Kanchan Ojba, K.R. Mishra and J.K. Mishra have committed the aforesaid offence being instigated by another influential police officer, namely S.K. Ojha being O/C of R.I.T., Adityapur, District-Singhbhum. That it is curious to note that the present intervenor Sobhabati Devi being a married woman has suppressed her identity and did not disclose her husband's name and described her as daughter of Chaturbhuj Mishra, whose sons namely K.K. Mishra and J.K. Mishra are accused in the said J.C/1 case no. 134 of 1990. That it is curious to note that the present intervenor Sobhabati Devi being a married woman has suppressed her identity and did not disclose her husband's name and described her as daughter of Chaturbhuj Mishra, whose sons namely K.K. Mishra and J.K. Mishra are accused in the said J.C/1 case no. 134 of 1990. The plaintiff has further come to learn from the local people that present intervenor is nobody than wife of said S.K. Ojha, on whole instigation the aforesaid accused persons in connivance with the present defendant have committed the aforesaid offence of house tresspass.” 12. The said suit was pending before the Subordinate Judge, I, Jamshedpur. By the impugned order dated 2l.12.1990. Sri S.D. Singh, who was merely In-charge of that court allowed the said application filed by the opposite party no. 2 for being impugned as a party-defendant. 13. Mr. S.K. Chattopadhya, the learned counsel appearing on behalf of the petitioner submitted that as the scope of a suit for eviction is a limited one, the plaintiff can not be forced to fight out a litigation with a third party therein as a result whereof a complicated question of the title would be involved. 14. The learned counsel, in this connection, has relied upon an order of this Court dated 2.5.1990 passed in Civil Revision no. 83 of 1990 (R). A decision of this Court in Narain Sahu and ors. Vs. Alma Ram Bajorio ( 1990 (1) B.L.J. 688 ) as also in Balwant Rai Vs. Lt. Gian Singh and ors. (AIR 1984 J. & K. 84). 15. The learned counsel further submitted that in the facts and circumstances of the case, Section 12 of the Act, has no application, inasmuch as, in terms of the proviso appended thereto, a person claiming independent title with not be bound by a decree passed in an eviction suit. 16. The learned counsel submitted that Section 12 of the Act, is in para materia with Section 25 of the Delhi Rent Control Act, Section 23 of tile Madhya Pradesh Accommodation Act, and Section 30 of the Madhya Pradesh Rent Control Act. 16. The learned counsel submitted that Section 12 of the Act, is in para materia with Section 25 of the Delhi Rent Control Act, Section 23 of tile Madhya Pradesh Accommodation Act, and Section 30 of the Madhya Pradesh Rent Control Act. The learned counsel submitted that while interpretation similar provision, the Delhi High Court and Madhya Pradesh High Court as also punjab and Haryana High Court have held that a decree passed in a suit for eviction under the cone control legislations would be binding upon the person who have come in possession through the defendant and the same would not be binding upon the person who had been put in possession by the plaintiff either as his tenant or otherwise. 18. The learned counsel further submitted that a person claiming title and possession of the premises in his own right and not through or under either the plaintiff of the defendant also would not bound by a decree passed in such an Eviction suit. The learned counsel, in this connection has relied upon in Smt. Gomti Devi Vs. Shri Omprkash and anr., (1980(1) Rent Control Journal, 487) and in Smt. Balbir kaur and ors. Vs. M/s Novex Dry Cleaners, Patiala and anr., (AIR 1983 Punjab and Harayan, 141). 19. The learned counsel further submitted that the learned court below had no jurisdiction to pass the impugned order inasmuch as, he was merely in-charge of the court of' Subordinate Judge, 1st court, Jamshedpur. According to the learned counsel, in terms of Section 11 of the Bengal, Agra and Assam Civil Court Act, the Officer-in charge of the Court may only pass routine orders and not judicial order unless the suit itself is transferred to his file. 20. The learned counsel further submitted the that learned court below did not gin an opportunity of hearing to the counsel for the petitioner and despite the said fact, hurriedly passed the impugned order on the ground of existence of alleged urgency purported to be owing to ensuing winter vacation from 23rd December, 1990 to 31st December, 1990. 21. According to tile learned counsel, from the impugned order itself, it would appeal that the learned court below has thrown all norms, to the wind and bas passed the impugned order in an improper manner. 22. Mr. N.K. Prasad, the learned counsel appearing on behalf of the opposite party no. 21. According to tile learned counsel, from the impugned order itself, it would appeal that the learned court below has thrown all norms, to the wind and bas passed the impugned order in an improper manner. 22. Mr. N.K. Prasad, the learned counsel appearing on behalf of the opposite party no. 2, on the other hand, submitted that from a perusal of the impugned order, it would be evident that the opposite party no. 2 bad been in possession of the premises in question. According to the learned counsel, the original defendant-opposite party no.1, in his written statement had accepted the title and possession of Jai Shankar Mishra, who is the vendor of the opposite party no. 2 and in that view of the matter, the order of the learned court below, to the effect that the opposite party no. 2 should be impleaded as a party therein can not be said to be illegal and without jurisdiction. 23. The learned counsel submitted that in this case, provision of Section 12 of the laid Act, will have no application. The learned counsel further submitted that as an order impleading the third party in a suit is passed after the institution of the suit, this Court in exercise of its revisional jurisdiction should not interfere therewith. 24. The learned counsel, in this connection has relied upon in Razia Begum Vs. Sahebzadi Anwar Begum and ors. (AIR 1958 S,C. 886), Ajoy kumar Gupta Vs. State of Bihar and ors (AIR 1978 Patna, 121) and in Raja Ram Singh and anr. Vs. Kapildeo Singh and ors. (AIR 1984 Patna, 140). 25. The learned counsel further submitted that in the event, the impugned order is allowed to stand, the opposite party no. 2 shall not raise the question of payment of advelorum court fee on the market value of the property of the suit by the plaintiff and in that view of the matter, the court below can decide the disputed question of title in relation to the suit property once for all. 26. Mr. P. Gangopadhya, the learned counsel appearing on behalf of the opposite party no.1 adopted the submissions of Mr. N.K. Prasad. 27. A landlord has a right to evict his tenant under a common law. Such a right of the landlord has been curtailed to a great extent by enactment of rent control legislation by different States. 26. Mr. P. Gangopadhya, the learned counsel appearing on behalf of the opposite party no.1 adopted the submissions of Mr. N.K. Prasad. 27. A landlord has a right to evict his tenant under a common law. Such a right of the landlord has been curtailed to a great extent by enactment of rent control legislation by different States. In terms of Bihar Building (Lease, Rent and Eviction), Control Act, 1987 a tenant can not be evicted execution of a decree passed against him on any or the other grounds enumerated in Section 11 thereof. Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 is also one of such legislations in terms whereof a tenant, in view of section 116 of the Indian Evidence Act, is estopped from challenging the title of his landlord. If a tenant challenges the title of his landlord, the same itself may be a ground of forfeiture of his tenancy both under the said Act, as also under Section 111 (g) of the Transfer of Property Act. 28. In a suit for eviction, the issued which would normally fall for consideration before the court would be : (a) Whether there exists relationship of landlord and tenant; and (b) Whether the landlord has been able to prove one or the other ground of eviction as enumerated in different Clauses of Section 11 of the said Act. 29. The issue with regard to the plaintiff's title to the suit premises arises when the plaintiff fails to prove the existence of relationship of landlord and tenant by and between himself and tenant and in such a case, under certain circumtances, the pliantiff may make a prayer that he be granted a decree for recovery of possession as against the defendant on the basis of this general title. 30. Such being the limited scope of a suit for eviction, can it be said that in such a suit, the plaintiff can be asked by the court to fight out a litigation as against third party wherein, a complicated question of title may fall for determination. In my opinion, the answer to the said question muse be rendered in negative. 31. In my opinion, the answer to the said question muse be rendered in negative. 31. The court undoubtedly, has jurisdiction to implead a third party in a suit in exercise of its power conferred upon it under Order 1 Rule 10(2) of the Civil Procedure Code, but such a power can not be exercised where the scope of the suit itself would be enlarged and/or the courts will be called upon to determine the issued which would not have arisen for its consideration in suit for eviction by the plaintiff against the original defendant. In other words, a third party can be impleaded in a suit if he can allow that he is inter-rested in the subject matter of the suit meaning thereby the issues which are required to be determined. 32. Section 12 of the Act, was enacted for meeting a situation where a tenant may induct anybody in the such premises or allow anybody/to came in possession thereof. Proviso appended to Section 12 of the Act, however carve. put an exception to the general rule. 33. Section 12 of the said Act, reads as follows :- "Binding nature of the order of the Court on all persons in occupation of the building:-Notwithstanding anything contained in any other law, where the interest of tenant, in any premises is determined for any reason, whatsoever, and any order is made by the Court under this Act, for the recovery of possession of such premises the order shall be binding on all persons who may in occupation of the premises and vacant possession thereof shall be given to the land lord by evicting all such persons therefrom : Provided that nothing in this Section shall apply to any person who has an independent title to such a premises or to tenant who has been inducted with the express written permission of the land lord himself personally. 34. The said provision evidence was enacted by the legislature to protect the interest of the landlord so that in the event of a decree passed in his favour. be may not have to face another round of litigation at the hands of unscrupulous tenant who may during pendency of the suit induct any other person in the tenanted premises so as to defeat of delay the execution of the decree. be may not have to face another round of litigation at the hands of unscrupulous tenant who may during pendency of the suit induct any other person in the tenanted premises so as to defeat of delay the execution of the decree. Thus, while considering as to whether a third pary should be implemented as a party defendant in the suit, the provisions of Section 12 can not be taken into consideration 35. From a plain reading of the proviso appended to Section 12 of the said Act, it is evident that the legislature in its wisdom has laid down sufficient safeguard to protect the inter. fit of the person who has an independent title to such premises or a tenant who has been inducted with the express permission of the landlord himself. 35. The exception carves out in terms of proviso appended to Section 12 is explicit and clear and, in my opinion, the question of interpreting the said provision does not arise. 36. In this view of the matter, in my opinion, the decisions cited in this connection by the learned counsel for the parties are not required to be discussed elaborately. 37. Apart from the fact that by reason of the impugned order the learned court below has exceeded his jurisdiction in allowing the opposite party no.2 to intervene in the suit, in my opinion, the said order is not only illegal but also arbitrary in nature. 38. It has not been denied or disputed that learned court below was merely in charge of the court of Subordinate Judge, 1st Court, Jamshedpur. 39. Section 11 of the Bengal, Agra and Assam Civil Court Act, reads as follows: "Transfer of proceedings on vacation of office of Subordinate Judge -(1) In the event of the death, resignation or removal of a Subordinate Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held, the District Judge may transfer all or any of the procedings pending in the Court of the Subordinate Judge either to his own Court or to any Court under his administrative control competent to dispose them of. (2) Proceedigs transferred under sub section (1) shall be diposed of as if they bad been instituted in the Court to which they are so transferred. (2) Proceedigs transferred under sub section (1) shall be diposed of as if they bad been instituted in the Court to which they are so transferred. (3) Provided that the District Judge may re-transfer to the Court of the Sub-ordinate Judge or his successor any proceedings transferred under sub section (1) to his own or any other Court. (4) For the purposes of proceedings which are not pending in the Court of the Subordinate Judge on the occurrence of an event referred to in sub-section (1), and with respect to which that Court has exclusive jurisdiction the District Judge may exercise all or any of the jurisdiction of that Court. 40. It is thus evident that a court in• charge of 8nother court is evidently to pass at routine orders except in certain circumstances, unless the case itself is transfered to his court. Further, it has not been denied or disputed that the petitioner was not given an opportunity of hearing by the learned court below. If the counsel for the petitioner was not heard, it does not stand to any reason as to how the learned court below could come to the conclusion that it is admitted position of the parties that the opposite party was in possession of the suit premises. He merely heard the counsel of the applicant-opposite party no. 2 and defendant opposite party no.1. 41. It is true that a complaint petition bas been filed by the constituted attorney of the plaintiff-petitioner alleging therein that the relatives of the plaintiff's have tresspassed into the properties. Possession illegally obtained is no possession in the eye of law. Such an Act, can not confer upon any person a right to possess the laid land nor can claim be made on the basis of such right. 42. The learned court below has also committed an illegality in relying upon the copy of the case diary which could not have been in lawful custody of the opposite party no. 2. Statements made in the case diaries can not be looked into except for the purposes laid down in Section 145 of the Code of Criminal Procedure. 43. A case diary as such is not admissible in evidence and thus looking to a plain copy of the case diary, the correctness and authenticity whereof may be doubled or disputed by the learned court below was wholly improper and illegal. 43. A case diary as such is not admissible in evidence and thus looking to a plain copy of the case diary, the correctness and authenticity whereof may be doubled or disputed by the learned court below was wholly improper and illegal. The same could not have to be looked into for any purpose far less for the purpose of coming to the conclusion that the opposite party no. 2 was the lawful occupier of the suit premises. 44. The learned court below has also taken into consideration wholly irrelevant and extreneous factors into consideration for the purpose of holding that the decree which may be passed in the suit would be frustrated as the same would not be capable of being executed in the event the opposite party no.2 it not impleaded in the suit. If the opposite party no.2 is a tresspasser, he can be evicted in due course of law and at the time of execution of the decree, the plaintiff may take recourse to Section 12 of the said Act, for proving the ingredients thereof. Such a question may have to be posed and answered in the execution proceeding itself, if the same is raised. 45. It also appears strange that the learned court below acceptec1 the submissions made on behalf of the opposite party no. 2 to the effect that the plaintiff had filed the suit in collusion with the defendant no.1 and the rent ill also being paid at present by the plaintiff, despite the fact that the defendant no.1 has not been residing in the suit premises although, there was no evidence in support thereof. 46. On the contrary, as indicated hereinbefore, not only in the written statement as also before this Court, the opposite party no.1 has fully supported the case of the opposite party no.2. The learned court below, therefore, acted illegally in not taking into consideration this aspect of the matter. The suggestion given to the plaintiff had been depositing the rent on behalf of the defendant in terms of the order 14.9.1990, passed by the learned court below under Section 15 of the Bihar Buildings (Lease, Rent, & Eviction) Control Act, appears to be absurd on the face of it. 47. The suggestion given to the plaintiff had been depositing the rent on behalf of the defendant in terms of the order 14.9.1990, passed by the learned court below under Section 15 of the Bihar Buildings (Lease, Rent, & Eviction) Control Act, appears to be absurd on the face of it. 47. The learned court below further without any material on records acted illegally and without jurisdiction in considering the submissions made on behalf of the opposite party no.2 to the effect that the plaintiff in collusion with the defendant is bound upon to damage and demolish part of the suit premises, although no such allegation was made in the application filed by the opposite party no. 2. 48. The impugned order was passed on 22.12.1990 and it is true that the civil courts were remain closed upto 1st January, 1991 but that by itself did not make out case of emergency. No application was filed on behalf of the opposite party no.2 to show that there existed any emergency to get the application dated 13.9.1990 filed by her required urgent disposal. The opposite party no. 2 was not the plaintiff and that it was not her concern as to whether the suit will be frustrated if the such application impleading the opposite party no.2 is not disposed of immediately. 49. In fest, the question of suit being frustated for non disposal of application dated 13.9.1990 filed by the opposite party no. 2 does not arise at all. There was thus neither any urgency nor any compelling circumstance in passing the impugned order as alleged by the learned court below in his impugned order. 50. Taking thus the facts and circumstances of the case, in my opinion, the impugned order can not be sustained. The decision cited by Sri N.K. Prasad, to the effect that this Court should not exercise its descretion under Section 115 of the Code of Civil procedure have no application in the facts and circumstances of this case. 51. The petitioner shall certainly be prejudiced if he bas to lace a third party on joining issues with her do not arises for consideration in the suit filed by him against the opposite party no.1. Addition of a party in a suit, who is not a necessary party, is a case decided within the meaning of Section 115 of the Code of Civil Procedure. 52. Addition of a party in a suit, who is not a necessary party, is a case decided within the meaning of Section 115 of the Code of Civil Procedure. 52. It is true that this Court in exercise of its jurisdiction under Section 115 of the Code of Civil Procedure may not exercise its jurisdiction to interfere with certain orders even if it be lawful to do so, but in a case where the order is wholly wit bout jurisdiction and/or arbitrary and has been passed without taking into consideration the relevant facts and on extreneous and irrelevant consideration, this Court has not other option but to set aside such an order. This Court, where such illegal and arbitrary orders are passed can not remain silent. In such a situation, it would be unjust if such orders passed by the learned court below are not interfered with. 53. This Court in Abdul Ghani Vs. Md. Hadi Hussin (1990 (2) PLJR 113) held : It is true that normally this Court in exercise of its revisional jurisdiction does not interfere with the order passed by the court below unless one or other of the grounds enumerated in Section 115 of the Code of Civil Procedure is satisfied. But it is also well known that if a discretion is exercised without taking into account the relevant considerations, the same must be held to have been exercised in an, illegal manner. In this connection reference may be made in State of Orissa Vs. G.C. Kanungo reported in AIR 1980 Orissa, 157. Reference in this connection may be made in Anjani Prasad and on. Vs. Ishwardom and ors. reported in AIR 1982 Madhya Pradesh, 10. The Supreme Court in Shri Vinod Kumar Arora Vs. Smt. Surjit kaur reported in 1987 Vol. 2 unreported judgment S.C. Page 734 has held that if the trial court does not take into consideration a relevant and vital document it commits a jurisdictional error and in such an event it would be permissible for a revisional court to interfere therewith. Reference in this connection may by made in Ajantha Transporters Vs. T.V.K. Transporters reported in A.I.R 1975 SC 123 : 1975 (1) SCC 55 ." 54. For the reasons stated aforementioned, the impugned order can be not sustained. 55. Reference in this connection may by made in Ajantha Transporters Vs. T.V.K. Transporters reported in A.I.R 1975 SC 123 : 1975 (1) SCC 55 ." 54. For the reasons stated aforementioned, the impugned order can be not sustained. 55. It was conceded at the bar that the order dated 23.1.1991 which is the subject matter of the Civil Revision No. 48 of 1991 will not be sustainable once it is held that the opposite party no.2 could not have been impleaded as a party in the suit, inasmuch as the said order appointing a pleader Commissioner was passed only at her instance. In view of the fact that the order dated 21.12.1990 is being set aside, it has to be held that as the opposite party no. 2 could not have been impleded as a party in the suit, an application for appointing at pleader Commissioner at her instance was not maintainable and consequently the order dated 23.1.1991 appointing the pleader Commissioner is not sustainable. 56. In the result, both the Civil Revision applications are allowed and the impugned orders are set aside. 57. In the facts and circumstances of the case, the petitioner is also entitled to cost of this Civil Revision application which is to be borne by the opposite party no.2. Advocate's fee assessed at Rs. 500/-only. 58. In the facts and circumstances of the case, the learned court below is further directed to dispose of the suit with utmost expedition. Revision allowed.