Ram Karan Singh v. Chaudhari Pramod Kumar — 1996 DIGILAW 1412 (ALL)

Judgment : A. P. Singh, J. 1. This is defendant's appeal. Plaintiff-respondent filed Suit No. 277 of 1972 seeking a declaration that order of allotment dated 31-1-1972 made in favour of the appellant in respect of the house in suit was illegal; relief for payment of damages for wrongful occupation of the said house at the rate of Rs. 400 per month amounting to Rs. 2,700 was also sought. 2. PLAINTIFF-respondents case was that the house in dispute was constructed by his great grand-father Mahabir Prasad Chaudhari who had agreed with the State Government on 12-7-1903 for reserving the said house for the occupation of Government officers and not to let out the same or occupy it himself without the sanction of the Collector, Gorakhpur. By a subsequent agreement dated 22-4-1910 executed by Mahabir Prasad Chaudhari and the Collector, Gorakhpur on behalf of the Government, it was agreed that the land on which the house had been constructed was granted free to Mahabir Prasad Chaudhari and the house thereon shall be reserved for the residence of the Government officer on payment of rent and shall not be occupied by the owner or to be let out by him to person other than the Gazetted Government Officers without the previous sanction of the Collector. According to the said agreement the proprietor was to make it a condition of lease that the tenant shall not sublet the house or out houses to any person other than the Gazetted officers of Government accustomed to live in European stayle without the previous sanction of the Collector and in case any sub-letting was done contrary to the same, the proprietor was bound to act according to the directions of the Collector for eviction of the persons. It is alleged that in accordance with the said agreement the house remained in the tenancy of the Government officers alone and by means of partition in Suit No. 44 of 1957 the house in dispute fell to the share of the respondent. The last tenant in the house was B. D. Pati Tripathi, Civil an Sessions Judge, Gorakhpur, who used to pay rent at the rate of Rs. 72. 50p. per month to the plaintiff. The last tenant in the house was B. D. Pati Tripathi, Civil an Sessions Judge, Gorakhpur, who used to pay rent at the rate of Rs. 72. 50p. per month to the plaintiff. The plaintiff received order dated 5-1-70 of the District Magistrate, Gorakhpur requisitioning the said house under Section 3 of the U. P. (Temporary) Accommodation Requisition Act, 1947 (hereinafter referred to as 'the Accommodation Requisition Act') and directing Sri. B. D. Pati Tripathi to deliver possession of the house to him. After the house was vacated by Sri B. D. Pati Tripathi, the plaintiff received another order dated 31-1-72 passed by the District Magistrate, Gorakhpur allotting the house to the defendant under U. P. Government Servants Act, 1960. The said order has been challenged on the grounds mentioned in Para 11 of the plaint. It is alleged that there has not been a contract of tenancy between the respondent and the appellant and the possession of the appellant is that of a trespasser. The respondent claimed damages at the rate of Rs. 300 per month alleging that as the land on which the house stands belonged to the Government under the terms of the agreement and respondent is not entitled to actual possession over the land and the house so the relief of possession is not being claimed. It has been alleged that the appellant has sub-let the house 'sugam Vari' without the permission in writing of the respondent and also cut down trees and plough the pathway and the flower beds in the premises in dispute. The appellant contested the suit admitting that the last occupation of the house in dispute was of Sri B. D. Pati Tripathi, and he used to pay rent at the rate of Rs. 72. 50 p., the fact that the house had been requisitioned by the Collector under the Accommodation Requisition Act and had been allotted to the appellant vide order dated 31-1-72. It is alleged that the Collector, Gorakhpur had full powers to allot the house in dispute and Mahabir Prasad Chaudhari and his heirs had no right to occupy the house themselves or to let out the same to any one without the permission of the Collector. It is alleged that the Collector, Gorakhpur had full powers to allot the house in dispute and Mahabir Prasad Chaudhari and his heirs had no right to occupy the house themselves or to let out the same to any one without the permission of the Collector. It is claimed that according to Article 194 of the Constitution of India the benefits given to the Gazetted Officers of the State Government are also given to the members of the Legislative Assembly and in these circumstances the allotment in favour of the defendant was wholly legal. Possession over the whole premises in dispute was given to the appellant on 8-4-72 and he continues in possession as a tenant under the allotment order dated 31-1-1972. The respondent did not agree to accept rent from him so he has been depositing rent in the Court of Munsif, Gorakhpur. It is alleged that the partition in Suit No. 44 of 1957 is not binding on the State because the State was not a party to the said proceedings. The requisition under Section 3 of Accommodation Requisition Act was legal, the Collector Gorakhpur had delegated his power to Sri Tewari and he had full rights to sign the allotment order on behalf of the Collector, Gorakhpur. It has been denied that the appellant has sub-let the house to 'sugam Vani' or has cut away trees, though it has been admitted that certain buses had been cut away in order to clean the premises. It is claimed that the appellant is a tenant and not a trespasser and the respondent is not entitled to the damages at the rate claimed. It is pleaded that the suit is bad for non-joinder of State of U. P. and Collector, Gorakhpur. Suit is under valued; court fee paid is insufficient and the court has no jurisdiction to try the suit. It was also pleaded that the plaintiff did not have any right to sue and the suit was barred by Section 34 of the Specific Relief Act. 3. Suit is under valued; court fee paid is insufficient and the court has no jurisdiction to try the suit. It was also pleaded that the plaintiff did not have any right to sue and the suit was barred by Section 34 of the Specific Relief Act. 3. THE grounds which were specified by the respondent in para 11 of the the plaint for challenging the allotment order dated 31-1-1972 read as follows: " (a) That according to the terms of the agreement dated 22-4-1910 referred to above, the District Magistrate had no power to requisition the said house dated 5-1-70 under Section 3 of the U. P. Temporary Accommodation Requistion Act, 1947 for public purposes. THE plaintiff is advised that the said requisition by the District Magistrate ismalafide, and not in good faith. (b) That the allotment of the said house has been made under the U. P. Grant Act, 1960 to the defendant which act is not applicant to the house in suit. (c) That allotment order dated 31-1-72 has been signed by Sri D. N. Tewari for District Magistrate, Gorakhpur who has no authority to sign this allotment order under the Government Grants Act, 1960 because the District Magistrate had not delegated his powers under the Government Grant Act, 1960 to Sri D. N. Tewari for signing the allotment of the house in dispute. Moreover if there is any delegation then the same is without jurisdiction, illegal, invalid and inoperative. (d) That the U. P. (Tempy) Control of Rent and Eviction Act was applicable to the house in dispute and the allotment order was not passed under the provisions of the said Act. (e) That the defendant is not a Government Officer posted in a district so that house cannot be allotted to him because it can only be allotted to the Government Officers posted in the distinct. (f) That the allotment order in favour of a person other than a Government Officer is against the terms of the agreement dated 22-4-1910 referred to above, and as such, it is obvious that the Government does not stand in need of the house which may be released in favour of the plaintiff. (g) That Sri Ram Ratan Singh has sublet the house to 'sugambani' a weekly newspaper without having the permission in writing in accordance to the agreement. (g) That Sri Ram Ratan Singh has sublet the house to 'sugambani' a weekly newspaper without having the permission in writing in accordance to the agreement. (h) That Sri Ram Karan Singh has also cut down trees and has ploughed the land and the rasta and the flower beds and pucca rasta leading to the Gulambarh with tractor causing great loss to the plaintiff. " 4. ON the pleadings of the parties, the Civil Judge who tried the suit, framed as many as all issues out of which issues 1 to 4, 6, 8, 9 and 10 related to the merits of the case; the remaining issues were in respect of technical pleas which were raised by the appellant in his written statement, all of which were decided in respondent's favour. Issues 1, 8 and 10 related to the legality of the order of allotment on one or the other ground out of which appellant's plea that he was entitled for the benefits of a Gazetted Government Servant was decided against him but other two issues relating to delegation of power to the Rent Control and Eviction Officer by the Collector to allot the house in suit and legality of the allotment order was decided against the respondent. Issue No. 4 relating to maintainability of the suit in view bar imposed by the accommodation Requisition Act too was decided in respondent's favour. Issue No. 6 which related to question of relationship between the parties was however decided against the respondent and it was held that appellant was respondent's tenant. Issue No. 9 which related to respondent's right to realise damages for use and occupation from appellant too was decided against respondent and the trial court held that neither damages for use and occupation of the house in question nor compensation for the requistion of the house nor rent for it could be realised by the respondent against appellant through the suit. " On the basis of the findings so arrived at by the trial Court, the suit was dismissed in toto. Respondent then filed appeal under Section 96 of the Code of Civil Procedure, 1908 for questioning the legality of the judgment and decree passed by the trial Court. The appeal was heard by the 1st Additional District Judge, Gorakhpur. The first appellate court allowed the appeal filed by the respondent and the suit was decreed. 5. Respondent then filed appeal under Section 96 of the Code of Civil Procedure, 1908 for questioning the legality of the judgment and decree passed by the trial Court. The appeal was heard by the 1st Additional District Judge, Gorakhpur. The first appellate court allowed the appeal filed by the respondent and the suit was decreed. 5. THE judgment and decree passed by the first appellate court has been challenged in this appeal on the grounds (a) to (c) mentioned at page 5 of the memorandum of appeal. 6. I have heard Sri B. D. Madhyan for the appellant and Smt. Rama Devi Gupta for the respondent. Sri Madhyan during the course of his arguments raised two points for attacking the impugned judgment, which shall be referred to at its appropriate place. From the judgment of the trial Judge, it would appear that the basic reason on which respondent's suit was dismissed was the factum of requisition of the house by the Collector and respondent's failure to question its legality. According to the Civil Judge, since the Collector exercising his powers under the Accommodation Requisition Act had taken possession of the house in suit, the respondent was not entitled for any of the reliefs in the suit until either the order of requisition was successfully challenged or the house in suit was itself released from requisition by any order of the Collector passed under the provisions of that Act. 7. TRIAL court while taking this view however totally ignored the fact that the house in suit had been requisitioned by the Collector from the possession of Sri B. D. Pati Tripathi by making an order of requisition so as to make the said house available for the purpose of residence of officers of the State Government, including officers of the Judiciary. After the said house was requisitioned it was allotted by the Rent Control and Eviction Officer, Sri Tewari, to the appellant who then was a member of the Legislative Assembly of the State from district Gorakhpur. After the said house was requisitioned it was allotted by the Rent Control and Eviction Officer, Sri Tewari, to the appellant who then was a member of the Legislative Assembly of the State from district Gorakhpur. Respondent's plea that as per the terms of the two agreements which were entered into between the Collector and his predecessor in interest dated 22-4-1910 and earlier to that dated 12-7-1903 the house could not be allotted by the Collector but could only be let out by the respondent, as its owner to a Gazetted Government servants or to any one else accustomed of living in European style only with the permission of the Collector. Terms of agreement on which respondent had placed reliance for impugning the allotment order which had been made in favour of the appellant thought were extensively quoted in his judgement by the trial court but despite that the trial court gave no importance to them and was misled by the fact of the house having been requisitioned by the Collector who, according to the trial court, possessed full power to allot the house under the said agreement as on account of the house having been requisitioned, the respondent lost every right which he possessed under the agreement including the right to let the house in suit. 8. APART from missing the fact that the requisition of the house had not been made from the respondent which did not require respondent to challenge it, the trial court also missed the fact that the order of allotment of the house in suit, which had been impugned in the suit, was an order passed under the terms of the aforementioned agreements and not under the provisions of the Accommodation Requisition Act. The trial court also did not give any importance to the stipulations of the two agreements under reference wherein the Collector had only to be approached for obtaining permission for letting the house in suit to any one who was not a Government servant. Under the agreement, the Collector had not reserved a right unto himself for allotting the house in suit to any one including Government servant or a person who was not a Government servant. Under the agreement, the Collector had not reserved a right unto himself for allotting the house in suit to any one including Government servant or a person who was not a Government servant. The first appellate court however took a correct approach to the controversy which was involved in the suit and held that since the order of allotment was not as per the stipulations of the agreement dated 12-7-1903 and 22-4-1910, it was illegal and appellant was not a tenant and was liable to pay damages which was claimed by the respondent. The appellate court took into account the terms of the agreement dated 22-4-1910 and the order of allotment, relevant portion whereof reads: - "i. D. N. Tewari, on behalf of the District Magistrate, Gorakhpur allow Sri Ram Karan jingh, M. L. A. to occupy the accommodation in this house as detailed below subject to payment of usual rent to the landlord regularly, every month: (i) that Sri Ram Karan Singh, MLA will remain in occupation of the house for so long as he is posted in this district as he is MLA. " 9. THIS lower appellate court took the fact into consideration that as a M. L. A., appellant was not posted in the district of Gorakhpur; that the Collector had only power to permit letting out of the house in suit by the owner to a person who was not a Gazetted Government servant (posted in the district) including the Judiciary, and that the Collector or his nominee had no power under the agreement to himself let out the house in favour of anyone including the Gazetted Government servant posted in the district, but could only nominate a per son for favour of letting out of the house by the owner. 10. ON the terms of the agreement deeds, the learned Counsel for the appellant has not been able to take exception to the above mentioned conclusions which have been arrived at by the lower appellate court nor on the language used in the agreement it is possible to raise any doubt about Collector's power. Appellant's learned Counsel however contended that the house having been requisitioned and having so far not been released from the requisition the respondent possessed no right to let out the house in suit. Appellant's learned Counsel however contended that the house having been requisitioned and having so far not been released from the requisition the respondent possessed no right to let out the house in suit. According to him, the only consequence of the requisition order was that it was in the possession of the Collector who alone was entitled to let it out to any one, including a M. L. A. by way of allotment order and the respondent as the owner of the house was bound to accept the allotee as its tenant. It was on this premise that the appellant's learned Counsel went on to con tend that the first appellate court commilted grave illegality by decreeing the suit on the view that the allotment order made on behalf of the Collector was illegal. Firstly I do not agree with the argument of the Counsel for the appellant that after requisition of the house in suit by the Collector vide order dated 5-1-1970 from the possession of illegal occupant thereof (Sri P. B. Pati Tripathi, erstwhile Civil and Sessions Judge, Gorakhpur) the owner of the house lost his rights in the house in suit which had been reserved in his favour under the two agreement deeds. The sole purpose of the requisition order dated 5-1-1970, as would appear from the words used in it, was to evict Sri B. D. Pati Tripathi who was il legally continuing occupation of the house despite his transfer from Gorkhpur. There was no mention or direction in that order against the rights of the owner of the house which were reserved under the terms and stipulations of the agreement dated 22-1-1910. Therefore, despite the order of requisition which was passed by the Collector on 5-1-1970 all the rights of the owner of the house (the respondent herein) under the two agreement deeds remained intact and respondent as owner of the house continued to have the right to let out the house strictly in accordance with the terms and conditions of the agreement. Neither the Collector nor his nominee, who actually made the order of allotment under challenge in the suit, had power to either let out or allot the house to anyone specially a person who was M. L. A. and was not posted in the district of Gorakhpur. 11. Neither the Collector nor his nominee, who actually made the order of allotment under challenge in the suit, had power to either let out or allot the house to anyone specially a person who was M. L. A. and was not posted in the district of Gorakhpur. 11. WITHOUT touching upon other is sues which have been dealt with by the courts below, this ground in itself was sufficient ground to nullify the order of allot ment which was made in appellant's favour because appellant as M. L. A. was not posted in the district Gorakhpur even if he was held to be a Government servant. The house having been requisitioned by order dated 5-1-1970 for the purpose of providing residential accommodation to Gazetted Government servants including those belonging to Judiciary posted in the district of Gorakhpur could at the most, if at all, be allotted to a Gazetted Government servant including one belonging to the Judiciary who was posted in the district of Gorkhpur and not to a person who claimed to be a Government servant in his capacity as M. L. A., though not posted in that connection in the said district. The order of allotment from its bare reading had no concern with the order of requisition dated 5-1-1970 which stood exhausted as soon as the house was vacated by Sri B. D. Pati Tripathi, to whom it was directed. Therefore, the contention of the learned Counsel for the appellant that in view of the order of requisition the Collector or his nominee was fully justified to allot the house in question to appellant though he, as a Government servant in the assumed capacity of M. L. A., was not posted in the district of Gorakhpur, cannot be accepted. It is also not possible to upheld the contention of the learned Counsel that the terms of the agreements dated 22-4-1910 stood repealed in view of the requisition order dated 6-1-1970 for the reason that even the impugned allotment order does not say so and has purportedly been passed under the said agreement and not even under the U. P. (Temporary) Control of Rent and Eviction Act, 1947 or under the Accommodation Requisition Act. I, there fore, find no force in the contentions raised on this point by the learned Counsel which are accordingly rejected. 12. I, there fore, find no force in the contentions raised on this point by the learned Counsel which are accordingly rejected. 12. IT was then contended by Sri B. D. Madhyan, that the suit, as filed by the respondent was not maintainable, inasmuch as, the allotment order, which was sought to be declared by the respondent as void or invalid order was passed by the Collector but the Collector or the officer who passed the order on his behalf nor the State Government; had been impleaded in the suit as defendants. According to the learned Counsel since the order impugned in the suit had been passed on behalf of the Collector therefore, the Collector, in any case, was a necessary party; the Collector having not been impleaded in the suit contends the learned Counsel, the suit was not maintainable, hence declaration regarding illegality of the allotment order could not be made in the suit. The lower appellate court, Counsel concludes, therefore, committed illegality in decreeing the suit. Having considered the argument and having tested it in the light of the relevant law and the reliefs claimed in the suit, I find no merit in this contention as well. This point was also pressed on behalf of the appellant before the trial court which also rejected this contention for the reason that the respondent did not claim any relief against the Collector. The relief claimed by the respondent in the suit was that the allotment order made in favour of the appellant be declared to be void ab initio and that the appellant be directed to pay damages for unlawful occupation of the house in dispute. 13. NO relief, at all, was sought by the respondent as against the Collector or against his nominee who passed the order of allotment declaration in respect whereof was sought in the suit, nor any relief was sought for restoration of possession of the house in suit to the plaintiff. 14. RULE 3 of Order I of the Code of Civil Procedure provides as to who may be joined as defendants. A reading of the order would demonstrate that only such persons need be joined as defendants in the suit against whom either a relief is claimed or a right is claimed. 14. RULE 3 of Order I of the Code of Civil Procedure provides as to who may be joined as defendants. A reading of the order would demonstrate that only such persons need be joined as defendants in the suit against whom either a relief is claimed or a right is claimed. In the present case, neither any relief has been claimed against the Collector or the State Government nor any right in the house it suit has been claimed as against the Collector. In these circumstances, as per RULE 3 of Order I of the CPC it cannot be said that the Collector was necessary party. In this respect reference may be had to Bhagwatjena v. Govardhan, AIR 1980 Orissa 50. In the said case, Orissa High Court, while dealing with similar objection in respect of a declaratory suit, seeking entry made by employees of State as erroneous, held that the State was not a necessary party in the suit. The view taken by Orissa High Court in the case mentioned hereinabove supports the view taken by the courts below as well. From the relevant provisions of Order I too it is amply clear that only such persons need be implead as defendants in a suit against whom some relief is claimed and without whose presence the relief claimed in the suit cannot be granted. As has been held by the trial court and affirmed by the lower appellate court, the plaintiff having not challenged the legality of the requisition order which, as per my discussion, hereainabove, in the context of the first point, was not necessary, the plaintiff did not seek any relief in the suit against the Collector, therefore, he was right and fully justified in not impleading the Collector as a defendant in the suit; noticeable factor in this case is that the respondent did not even claim a relief for possession. This fact also justifies non-impleadment of the Collector as defendant in the suit. 15. UNDER the terms of the two agreements, eviction of unauthorised persons can be procured by the owner of the house in suit only with the permission of the Collector. It is for this reason that the respondent had also not claimed the relief for the eviction of the appellant form the house in suit. 15. UNDER the terms of the two agreements, eviction of unauthorised persons can be procured by the owner of the house in suit only with the permission of the Collector. It is for this reason that the respondent had also not claimed the relief for the eviction of the appellant form the house in suit. For this reason also, it was not at all necessary for the respondent to implead the Col lector as one of the defendants in the suit. 16. LEARNED Counsel however, placed reliance on ajudgment of Supreme Court in Udit Narain Singh v. Board of Revenue, AIR 1963 SC 786 . In the aforesaid case, the apex court, while dealing with a matter arising out of a writ petition under Article 226 of the Constitution of India held that apart from the Tribunal whose order is challenged, in the writ jurisdiction by filing writ petition, the person in whose favour the order is passed is also necessary party without whom no effective order can be made by the High Court, inasmuch as presence of that party is necessary for a complete and final decision of the questions involved in the proceeding. The judgment cited by learned Counsel for the appellant is thus totally out of context as it does not give any assistance to the contention which has been advanced by the learned Counsel. Here the case is just reverse. The respondent filed the suit claiming declaration of the order of allotment made in favour of the appellant to be void, and also sought damages for illegal occupation of the house. As already stated above, since the respondent did not claim any relief against the Collector, therefore, in the absence of Collector effective decree could be passed against the appellant in the suit by which the Collector was not at all to be adversely affected. Only person who was to be affected from the decree sought in the suit was the appellant and not the Collector, whereas in the case before the Supreme Court, the person in whose favour Tribunal had passed the order which was under challenge in the writ petition was not party and if the order of Tribunal was set aside, the only person affected by High Court's order was the person in whose favour the order was passed. It was in the above context that the Supreme Court held that for making an effective order, it was necessary for the writ applicant to implead the person in whose favour Tribunal had passed the order, who was a necessary party. 17. I find no merit in this contention as well, which is accordingly turned down. No other point has been argued by the learned counsel for the appellant. 18. IN the result, the appeal fails and is accordingly dismissed with costs. The judgement and decree passed by the lower appellate court is affirmed. Appeal dismissed.