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2000 DIGILAW 509 (CAL)

Ruma Chakraborty v. Sudharani Banerjee

2000-09-26

SAMARENDRA NATH BHATTACHARJEE

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Judgment In this revisional application the only question which falls for decision is whether in a suit for eviction by the landlord against the tenant on the ground of subletting, the wife of the tenant whose marriage has been dissolved by a decree of divorce can be entitled to be impleaded as a defendant. 2. The opposite party No.1 filed a Title Suit No. 105 of 1992 for eviction against the proforma opposite party No.2. from the tenancy standing in his name in respect of ground floor of suit premises No. 162/20, Lake Gardens, Calcutta-700 045 pending before the 3rd Court of the learned Civil Judge (Junior Division) at Alipore. The petitioner as the wife of the O. P. No.2 and their minor children have been living in the suit premises as members of the same family- Since 1981, the opposite party No.2 started living separately from his family and the petitioner on her own paid rents in the name of the O. P. No.2 and continued to stay in the suit premises. The marriage between the petitioner and proforma No.2 was dissolved by a decree of divorce by mutual consent on 22.12.1988. The O.P. No. 1 as plaintiff filed the suit for eviction on the ground of unauthorised subletting against the O.P. No.2 who entered appearance and filed written statement on being pursuaded by the petitioner. But, now the O. P. No.2 is not willing' to adduce evidence in support of the written statement. The petitioner" filed an application under Order 1 Rule 10 C.P.C. for impleading herself as a party to the proceedings to enable her to contest the suit and disprove the false allegation of subletting amongst others. That application has been dismissed by the learned trial Judge by order No.44 dated 2.2.2000. The present application arises out of this order. 3. The learned Counsel for the petitioner has argued that the petitioner is entitled to be added as a defendant in the Title Suit only to disprove the allegation that the tenant has inducted the petitioner as sub-lessee although the petitioner lived with the defendant/tenant as husband and wife along with the minor children till the decree of divorce passed in 1998 and that she is entitled to live in the suit premises under Section 18 of the Hindu Adoption and Maintenance Act. She is directly I interested in this subject-matter of the suit by way of her entitlement towards maintenance. The learned Counsel of the petitioner relied upon a decision in (1) Dr. A. K. Roy v. J. C. Roy Chowdhury reported in AIR 1982 Calcutta 8, wherein the learned Single Judge of this Court observed as follows ;...,.... "While disposing the application under Order 1 Rule 10 C.P.C., the Court should be guided by certain principles. The narrow view is that "the questions involved in the suit" can only be questions as between the parties to the litigation and not questions between any of the parties to the suit and a third party even though touching the subject-matter of the suit. Much emphasis is laid on this view by Mr. Roy Chowdhury. It is to be seen whether the presence of O.P. No.2 before the Court would enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Mr. Nag has emphasised that the rules relating to the joinder of parties are based on the principles of avoiding multiplicity of suits and also preventing possible conflict of decisions. To these principles it may be added that there must be finality to litigation and all the controversy must be set at rest. Having taken into consideration all these principles the learned Munsif passed the order in favour of O.P. No.2. In my opinion in a proper case for ends of Justice the wider interpretation of the scope of Order 1 Rule to should be adopted." 4. In this case, the petitioner/opposite party No.2 took the plea that her husband was the real tenant and the defendant was the benamdar. The matrimonial suit was pending between the husband and the wife and the husband of the O. P. No.2 hap not taken any step in the suit to safeguard the interest of the wife as well as that of two minor daughters. 5. In the instant case, the petitioner is no longer the wife of the defendant/tenant as the marriage has been dissolved by decree of divorce before filing of the suit. She is not a party to the contractual tenancy nor can she claimed any right, title or interest through her husband, the tenant. 5. In the instant case, the petitioner is no longer the wife of the defendant/tenant as the marriage has been dissolved by decree of divorce before filing of the suit. She is not a party to the contractual tenancy nor can she claimed any right, title or interest through her husband, the tenant. So, the petitioner cannot be heard to say that she has interest direct or indirect in the suit premises or that she is not a sub-lessee. The learned Court below rightly held a person can be added as a party if he comes to the category of a necessary party or a proper party. The Court has no jurisdictional power to add a person as a party who is neither a necessary party nor a proper party. The petitioner in the status of a divorcee cannot claim any interest in the suit premises either independently or through her erstwhile husband and as such she cannot be heard to say that she is a party without whose presence the Court cannot pass the decree. She is, therefore, not a necessary party. The petitioner is also not a person whose presence is necessary to enable the Court effectually and completely to adjudicate all the questions involved with the suit. The learned Counsel for the petitioner relied upon an unreported decision of a Single Judge of this Court wherein the petitioner-wife was allowed to be impleaded as the party although the matrimonial suit for divorce was pending, between the wife and the husband. His Lordship held that the petitioner-wife will be entitled to be added as a party for defending the case Oft the basis of the written statement filed by the husband :but cannot plead anything beyond the written statement. She cannot file written statement but she can cross-examine the witnesses in support of the defence of her husband till the marriage is dissolved by a decree of divorce. This decision cannot come to the aid of the petitioner inasmuch as the petitioner herein is a divorcee since before the institution of the suit. 6. Both the parties, however, relied upon another unreported decision passed in (2) C. O. No. 892 of 1997 arising out of an application under Article 227 of the Constitution of India, Smt. Asoka Bardhan Roy v. Krishna Chandra Ghosh. 6. Both the parties, however, relied upon another unreported decision passed in (2) C. O. No. 892 of 1997 arising out of an application under Article 227 of the Constitution of India, Smt. Asoka Bardhan Roy v. Krishna Chandra Ghosh. In that case decree for eviction was obtained fraudulently without impleading the petitioner as defendant although the landlord knew fully well that the petitioner had been residing in the suit premises. In that case marriage also the dissolved before the decree for khas possession was put into execution. Petitioner's application under Order 1 Rule 10 C. P. C. was rejected by the 1st appellate court setting aside the order of the trial Judge allowing the application for additional parties. His Lordship observed that the learned Judge in setting aside the order of the executing Court did not commit any error and the prayer of the petitioner for being added as a party in the execution proceeding was rightly rejected. This unreported decision is also of no help to the petitioner. In view of the discussion made above I am of the opinion that the learned Court below did not commit any jurisdictional error nor acted with material irregularity in dismissing the application under Order 1 Rule 10 C.P.C. filed by the petitioner. The impugned order, therefore, does not call for any interference. The revisional application is dismissed without any order as to costs. S. K. G.