Krishnadevi v. Pravinchand — 1996 DIGILAW 962 (MP)

ORDER S.C. Pandey, J. 1. This revision is directed against the order dated 3.1.96 passed by VIIth Civil Judge, Class-II, Durg in Civil Suit No. 1-A of 1995. This civil revision was connected with Civil Revision No. 729 of 1996, parties being Dwarka Prasad Soni V. Praveenchand and two others which has been filed by the applicant/defendant against the order dated 4.12.95, passed by VII Civil Judge, Class-II, Durg. Both the revisions are being disposed of by this common order. 2. The non applicants No. 1 to 3 filed a civil suit for ejectment under Section 12 (1) (a) and 12 (1) (f) of M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act' for short) against the applicants and the non-applicants No. 4 to 6. In this suit the non-applicant Nos. 1 to 3 also claimed the arrears of rent amounting to Rs. 20,000/- besides ejectment of the applicants and Non applicants No. 4 to 6. 3. During pendency of the suit, the applicants filed an application before the trial Court under Order 1 Rule 10 of the Code of Civil Procedure alleging interalia, that initially the suit premises were let out by late Premehand Surena, father of the non-applicants No. 1 to 3, to Kranti Suman Agrawal. The applicants and the non-applicants No. 4 to 6 are the legal representatives of Kranti Suman Agrawal. The non-applicants No, 1 to 3 have not made their mother Suit. Shanti Devi Surana, a party to the suit. It was further pleaded that Premchand had one son namely, Arvind Surana who is living jointly with the non-applicants No. 1 to 3. He has also not been made a party to the suit. It was further pleaded that late Premchand Surana had married to one Bilkis Devi during his lifetime who had given birth to a son named as Raju Surana. Raju Surana is also entitled to the suit property alongwith other property of Premchand Surana. For this reason, he was also one of the landlords of the applicants and non-applicants No. 4 to ft. Therefore, according to the applicants, the suit cannot proceed without making them parties to the suit. It was also stated that Raju Surana had also filed a civil suit in respect of immovable as well as movable properties against the non-applicants No. 1 to 3, Shanti Devi and Arvind Kumar, claiming share in the properties. Therefore, according to the applicants, the suit cannot proceed without making them parties to the suit. It was also stated that Raju Surana had also filed a civil suit in respect of immovable as well as movable properties against the non-applicants No. 1 to 3, Shanti Devi and Arvind Kumar, claiming share in the properties. This civil suit was registered as Civil Suit No 7-A/95. It was stated in the application that the non-applicants No. 1 to 3 have deliberately not made Raju Surana a party to the suit. Therefore, it be directed that the aforesaid necessary parties mentioned in the application under Order I Rule 10 of the Code of Civil Procedure, be made parties to the suit. 4. This application was opposed by the non-applicants No. 1 to 3. It was not denied that Shantibai is the mother of non-applicants No. 1 to 3 and that Arvind Kumar was their brother. It was however, denied by the non-applicants No. 1 to 3, in their reply to the application that Raju Surana had any right of title to the suit property of late Premchand Surana, as he was not his son. There was no specific denial of pendency of C.S. No. 7-A/95, filed by Raju Surana against them. It was further pleaded by the non-applicants 1 to 3, that Kranti Suman Agarwal, in his reply dated 20.4.87 to the notice of the non-applicants No. 1 to 3, dated 6.2.87., had recognized the non-applicants No. 1 to 3 as the landlords of the suit shop and for this reason the applicants and the non-applicants No. 4 to ft could not raise the plea that oilier persons should be joined as parties to the suit. 5. The trial Court, by the impugned order dated 3.1.96 dismissed the application under Order I Rule 10 of the Code of Civil Procedure on the ground that it is not necessary in the suit for eviction to make all the co-owners parties to the suit. It was also stated in the impugned order that a suit can be filed by the Mukhiya of the family and Kranti Suman Agrawal has also accepted the non-applicants No. 1 to 3 as the landlords. It was further stated by the trial Court that if the applicants want to raise any objection, they can raise such objection in the written statement. It was further stated by the trial Court that if the applicants want to raise any objection, they can raise such objection in the written statement. That is how the application under Order I Rule 10 of the Code of Civil Procedure was disposed of by the trial Court. ft. The learned counsel for the applicants, Shri A.D. Deoras, has argued to the effect that the present suit filed by the non-applicants No. 1 to 3, was not a suit for ejectment alone. It was a suit for arrears of rent too. The learned counsel for the applicant submitted that it may be that in a suit for ejectment simplicitor all the landlords may not be necessary parties. However, when the non-applicants No. 1 to 3 have also claimed a decree for arrears of rent, they cannot file a suit without making all the co-landlords parties to the suit. 7. The learned counsel for the applicant, however, concedes that there are a number of cases of Supreme Court and of this Court reaching the conclusion that a suit for ejectment can be filed by one of the landlords, if the other co-landlords do not object to the filing of the suit for ejectment. The learned counsel also contended that an objection for making a necessary party under Order I Rule 9 of the Code of Civil Procedure was raised at the earliest by the applicants and the suit was liable to be dismissed, if the non applicants No. 1 to 3 declined to add the necessary parties to the suit. For this reason, the trial Court wrongly held that this objection cannot be made and decided without filing the written statement. According to the learned counsel for the applicant the suit would be barred if the necessary parties to the suit were not added and, therefore, the plaint was liable to be rejected under Order VII Rule 11 (d) of the Code of Civil Procedure. 8. The learned counsel for the non-applicants No. 1 to 3, Shri P. Diwakar contends that according to the definition of "landlords" given in 'the Act' the non-applicants No 1 to 3 were the landlords because Kranti Suman Agrawal had recognized them as the landlords in his reply to the notice. For this reason, the applicants cannot contend that there were other co-landlords. He supported the order of the trial Court on merits. 9. For this reason, the applicants cannot contend that there were other co-landlords. He supported the order of the trial Court on merits. 9. It is, therefore, necessary to examine the point raised by the counsel for the applicants to the effect whether Shantidevi, Arvind Kumar and Raju Surana would be the necessary parties to the suit 7 10. So far as Shantidevi and Arvind Kumar arc concerned, it is not in dispute that they are the successors-in-title to Premchand Surana. However, there is a dispute that Raju Surana is son of Premchand Surana. Never the less, there is no dispute that Raju Surana has filed a civil suit against the non-applicants No. 1 to 3 and other heirs of late Premchand Surana claiming his right and title in the movable and immovable properties of Premchand Surana, including the suit shop, as a co-heir. 11. The question of adding a party to a suit is governed by Order I Rule 10 of the Code of Civil Procedure. It is also well established that the question of adding a party to a suit is not a question of initial jurisdiction but a question of exercise of discretion as was held by the Supreme Court in the case of Razia Begum v. Sahebzadi Anwar Begum and others A.I.R. 1958 S.C. 886. However, in certain cases this may also involve the question of jurisdiction in the sense that the suit could not be proceeded without adding necessary parties to the suit. It was necessary to examine the language of Order I Rule 10 (2) of the Code of Civil Procedure, which reads as under :- O. 1 Rule 10(2):-Court may struck out or add parties. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the question involved in the suit, be added. It is clear that this sub-rule gives power to the Court to add a plaintiff or a defendant in order to enable the Court to effectively and completely adjuridate upon and settle the question involved in the suit at any stage of the suit. The expression "all the question involved in the suit" does not refer to all the claims which may be possibly put forward by any of the owners of the property involved in the suit. This expression in necessarily limited to the controversy in the suit as framed and filed. The aforesaid expression "all the questions involved in the suit" refers to the right set up and relief claimed by one side and denied by the other side as was held in the case of Amon v. Rapheel Tuck & Sons Ltd. (1956) 1 All E.R. 273. In that case it was pointed out by Devlin, J., at page 279 that :- ..... All the questions involved is a phrase that, unless it is cut down, would be impossible wide. It is cut down, the plaintiff submits, by the opening words of the passage which I have cited. The intervener must be a party whose presence is necessary to enable all questions in the action to be adjudicated on and settled, but the question must be one which has to be adjudicated on in the issue between the existing parties and not in any new issue raised by an intervener....... It is, therefore, necessary to look into the controversy in the suit. The controversy in the suit is that the applicants and the non-applicants No. 4 to 6 are:- (i) in arrears of rent of Rs. 20,000/- and the non-applicants No. 1 to 3 claim a decree for arrears of rent. (ii) liable to be evicted u/s. 12 (1) (a) of 'the Act' for non-payment or non-tender of rent dispute the service of notice of demand, within two months from the date of service, (iii) also liable to be evicted on the ground of bona fide requirement of the non-applicants No. 1 to 3. u/s. 12 (1) (1) of 'the Act'. 12. The question of adding of party in an ejectment suit has engaged the attention of the Supreme Court and this Court in number of cases. u/s. 12 (1) (1) of 'the Act'. 12. The question of adding of party in an ejectment suit has engaged the attention of the Supreme Court and this Court in number of cases. In the case of Shri Ram Pasricha v. Jagannath and others AIR 1976 S.C. 2335 , the suit was for eviction of the defendants on twin pleas, one of default of payment of rent and the other of reasonable requirement of the premises on the part of the plaintiffs. The Supreme Court held that under Section 13 (1) (f) of the West Bengal Premises Tenancy Act (12 of 1950), for the purpose of reasonable requirement one of the co-owners could bring a suit for ejectment. It appears from, a close reading of the authority that it was held by the Supreme Court that a co-owner of property is an owner of every part of the Composite property alongwith others. He cannot be treated as a party-owner. Therefore, one of the co-owners could bring a suit for eviction for bona fide requirement. However, the Supreme Court did not consider separately whether a suit for arrears of rent could be brought without joining all the landlords. This view of the Supreme Court has been again confirmed in the case of Smt. Kanta Goel v. B.P. Pathak and others, A.I.R. 1977 S.C. 1599. However, in that case, it appears that the suit was brought by one of the co-owners whom the tenant was paying the rent. Even in this case also the question was not considered from the point of view of passing a decree for arrears of rent. The third case is Palsingh v. Sunder Singh (dead) by L. Rs. and others A.I.R. 1989 S.C. 758. In this case also the question of eviction was considered and the Supreme Court laid down that if the other co-owners do not object then a suit for eviction could be filed. Again in this case the question of arrears of rent was not considered. Similar view was taken in the case of Shivraj Jat v. Asha Lata Yadav and others 1989 M.P.L.J. 202. The learned counsel for the applicant, however, contends that there is no consideration in these cases whether in the suit filed for arrears of rent alongwith the question of eviction, the arrears of rent could be decreed without joining all the co-landlords in the suit shop. The learned counsel for the applicant, however, contends that there is no consideration in these cases whether in the suit filed for arrears of rent alongwith the question of eviction, the arrears of rent could be decreed without joining all the co-landlords in the suit shop. There can be no doubt that the question of adding party should be considered under the express language of Order I Rule 10 (2) of the Code of Civil Procedure regarding all the questions involved in the suit. The pleadings cannot be ignored to come to a particular conclusion. It cannot be said that the present suit is primarily for eviction and for arrears of rent whereas there is express prayer for both the reliefs. Therefore, this Court is bound to examine the question whether the contention of the learned counsel for the applicants is correct that where a plaintiff-landlord claims not only eviction hut also arrears of rent, he must join all the co-landlords as parties to the suit. The contention of the learned counsel for the applicants can he supported only on general principle that all the co-landlords arc the co-owners of the property and for this reason any one of them cannot file a suit for recovery of arrears of rent. The reason is that the property is vested in all the co-owners jointly and the rent is the income arising out of that property. No co-owner can claim that he is entitled to the entire rent which is usufruct of the property. In view of Section 45 of the Indian Contract Act, it has been held that a tenant cannot claim discharge from his liability to pay rent to one of the co-lessors on the ground that he has paid the entire rent to the others. See the case of C. Venkatasetty v. Ranganetty and another A.I.R. 1952 Mys 68. Therefore, all the joint promisees i.e. the co-landlords are necessary parties in a suit for arrears of rent. However, in this particular case, the suit has not been tiled for arrears of rent alone, but also for ejectment under Section 12 (1) (a) of 'the Act'. 13. Therefore, all the joint promisees i.e. the co-landlords are necessary parties in a suit for arrears of rent. However, in this particular case, the suit has not been tiled for arrears of rent alone, but also for ejectment under Section 12 (1) (a) of 'the Act'. 13. The question that would arise is whether this Court can say that despite the claim made by the landlords under section 12 (1) (a) of 'the Act' the suit filed by the landlords is a simple suit for arrears of rent or whether it is, in the alternative, a suit under 'the Act'. That is to say the landlords were bound to claim arrears of rent in case, when they file a suit for ejectment. If this Court conies to the conclusion that a suit filed for ejectment under Section 12 (1) (a) of 'the Act' by necessary implication, includes a suit for arrears of rent under 'the Act' then (his suit shall not he governed by principles of general law obtaining for a suit for arrears of rent alone. In this case, the suit shall be governed by 'the Act' and will be for eviction. It is pertinent to note that in a suit for eviction under 'the Act' all the landlords are not necessary prites as we held by the Supreme Court and this Court, in various cases cited earlier, If was examine Section 12(1)(a) of 'the Act', we find that the suit for eviction can be filed on the ground of arrears of rent as provided under Section 12 (1) (a) of 'the Act' Section 12 (3) of 'the Act' provides that there shall be no order of eviction if the tenant makes a deposit or pays the rent as required by Section 13 of 'the Act' subject to proviso with which we are not concerned at the moment. If we examine Section 13 of 'the Act', we find that the tenant can get benefit of protection against eviction provided he deposits the rent within one month of service of summons or notice of appeal as the case may be or within such time as the Court may grant and continues to deposit the rent every month on 15th of each succeeding month. It has also been provided that if there is a dispute regarding the amount or to the person whom the rent is payable, the Court shall pass a suitable order in such cases and it is also provided that on compliance of provisions of sub-section 1, 2, or 3, as the case may be, there shall be no decree of eviction against the tenant. Otherwise, his defence is likely to be struck off. The question arises that if a landlord files a suit for eviction, can be omit to sue for arrears of rent. The suit under Section 12(1) (a) of 'the Act' is primarily based for eviction for non-payment or tender of arrears of rent within two months of service of notice of demand. If the landlords omits to sue for arrears of rent, the tenant would be entitled to say that since the landlords did not claim any arrears of rent in the suit, there were no such arrears of rent to be paid by him. Nor can the Court direct payment of such deposit by him in the Court for payment to the landlord as he has not claimed the same. Therefore, it is implicit in a suit for ejectment under Section 12 (1) (a) of 'the Act' that the landlords is bound to plead and prove that there ware arrears of rent and claim them. The claim for arrears of rent cannot he bifurcated and viewed separately from the claim for ejectment under section 12(1) (a) of 'the Act'. It is an integral part of the suit for ejectment under section 12 (1) (a) of 'the Act'. For this reason, It is difficult to accept the contention of the learned counsel for the applicants that the suit, as framed and filed, by the non-applicants No. 1 to 3, is in two parts that is to say one for the arrears of rent under the general law and the other for ejectment under 'the Act'. In this view of the matter, the general principle obtaining for determining a necessary party to a suit between landlord and tenant for arrears of rent simplicitor would not be applicable. In this view of the matter, the general principle obtaining for determining a necessary party to a suit between landlord and tenant for arrears of rent simplicitor would not be applicable. The view of the Supreme Court binds this Court that in a suit for ejectment under section 12, one of the co-landlords can always file the suit to evict a tenant unless the other co-landlords object, in Palsingh's case, (supra), the Supreme Court has laid down the above principle after considering its earlier case. 14. In this view of the matter, there is no merit in this revision and the revision is liable to be dismissed, and so also Civil Revision No. 729 of 1996. Both the revisions are, therefore, dismissed. However, there shall be no order as to costs.