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2004 DIGILAW 148 (HP)

SHANTI SHARMA v. SHANTI SHARMA

2004-07-13

LOKESHWAR SINGH PANTA

body2004
JUDGMENT Lokeshwar Singh Panta, J.—This petition under Article 227 of the Constitution of India has been filed by Smt. Shanti Sharma wife of Dina Nath Sharma seeking to quash the order dated 2.7.2003 passed by Sub Judge 1st Class (re-designated Civil Judge, Jr. Division), Kasauli, District Solan, whereby application filed by her under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure for impleadment in Civil Suit No. 16/1 of 2001 has been dismissed. 2. Smt. Shanti Sharma respondent No.1 (hereinafter referred to as the plaintiff) wife of Shri Geeta Ram Sharma filed suit against respondent No. 2 (hereinafter referred to as the defendant) for possession of the two shops measuring 10.1 ft. x 10.1 ft. and 21.6 ft. x 11.6 ft. situated in the second floor of the building known as Shanti Ghereh for ejectment of the defendant and for recovery of Rs. 7200 as arrears of rent. 3. The case of the plaintiff was that she is the owner of the four storyed building named as Shanti Ghereh located at Village Jabli, Tehsil Kasauli, Distt Solan. On the second floor of the said building two shops were rented out to the defendant in July 1989 on monthly rent of Rs. 300 and Rs. 400 respectively. The total amount of rent is Rs. 700 was enhanced to Rs. 900 per month of both the shops in the year 1995. Thereafter it was further enhanced to Rs. 1200 per month with effect from 1.1.2000. According to the plaintiff the defendant started storing inflammable material, like liquid Petroleum Gas Cylinders, Kerosene oil without the written consent of the plaintiff and without obtaining licence from the competent authority to keep inflammable material in the shop whereas the shops were rented out to the defendant for running business of General Merchant. In addition to storing of inflammable material the defendant has also started the business of sale of cement without the consent of the plaintiff. The plaintiff, therefore, requested the defendant to vacate the shop but instead of accepting the request of the plaintiff, he has stopped paying the monthly rent to the plaintiff w.e.f. 1.5.2000. On these premises the suit was filed by the plaintiff against the defendant 4. The plaintiff, therefore, requested the defendant to vacate the shop but instead of accepting the request of the plaintiff, he has stopped paying the monthly rent to the plaintiff w.e.f. 1.5.2000. On these premises the suit was filed by the plaintiff against the defendant 4. During the pendency of the suit Smt. Shanti Sharma wife of Dina Nath Sharma defendant filed an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure for her impleadment in the suit. She claimed that out of the two shops, the subject matter of the suit, one shop had been rented out to her by the plaintiff vide agreement dated 9.6.1997, copy whereof is placed on record of this petition as Annexure P-l and original deed was placed on record of the application. She contended that one shop was rented out to her as per the terms, and conditions of the deed for minimum period of five years and the plaintiff before filing the suit has not served any notice to the applicant for vacating the shop nor the applicant has been impleaded as party defendant in the suit along with her husband and non-impleadment will prejudice her rights in defending the suit without giving any opportunity to her. The applicant pleaded that she is essential and necessary party to the suit and in her absence the suit qua the shop which was rented to her could not be effectively adjudicated. 5. In reply to the application the plaintiff contended that the tenancy of the defendant has duly been terminated vide notice dated 15.9.2000 under Section 106 of the Transfer of Property Act and now the defendant is no more the tenant of the plaintiff of two shops w.e.f. 1.11.2000 onwards. The plaintiff has denied the claim of the petitioner that out of two shops rented to the defendant, one shop has been rented to her by the plaintiff vide agreement dated 9.6.1997 nor the petitioner has any concern or connection with the shops in question. She also stated that the alleged agreement dated 9.6.1997 is a result of fabrication and forgery prepared by the petitioner in connivance with her husband the defendant in the suit who is delaying the case in one way or other. She also stated that the alleged agreement dated 9.6.1997 is a result of fabrication and forgery prepared by the petitioner in connivance with her husband the defendant in the suit who is delaying the case in one way or other. The plaintiff then stated that the alleged original agreement does not contain her signatures and it appears that her signatures have been forged and fabricated by the petitioner in connivance with her husband. It is then contended that the presence of the petitioner in the suit as a defendant is not necessary to enable the trial Court to adjudicate upon and settle all the questions involved in the suit. 6. The learned trial Court on consideration of the material on record dismissed the application of the petitioner mainly on the ground that the plaintiff cannot be forced at the instance of the party to add defendant in the suit when the presence of the petitioner is not necessary to enable the court effectively and completely adjudicate all the questions involved in the suit. Further, it is stated in the order that if the petitioner is added as defendant, the suit of the plaintiff is to suffer as the mandatory notice under Section 106 of the Transfer of Property Act has to be served on the petitioner before seeking the relief of possession of the shop. 7. Hence, the petitioner has filed the present petition assailing the correctness and validity of the impugned order of the learned trial Court. 8. I have heard learned Counsel for the parties. Mr. Bhupinder Gupta, learned Sr. Advocate appearing on behalf of the petitioner contended that the trial Court has acted with illegality and material irregularity in ignoring the provisions of Order 1 Rule 10 of the Code of Civil Procedure and exceeded its jurisdiction in rejecting the application of the petitioner merely on the ground that as the petitioner is the wife of the defendant she is intended to delay the proceedings of the suit. He next contended that in the face of the agreement dated 9.6.1997, Annexure P-l entered into between the petitioner and the defendant, the right, title and interest of the petitioner in one shop, out of two shops the subject matter of the suit is being put under threat, prejudiced and jeopardized, if she is not impleaded as party defendant to the suit. 9. Per contra, Mr. 9. Per contra, Mr. Deepak Gupta, Advocate contended that the order of the learned trial court calls for no interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India as the trial Court has exercised its jurisdiction rightly and judicially and the order is neither perverse or grossly wrong. He next contended that the defendant has not whispered a single word in his written statement filed to the suit that one shop was rented to his wife by the plaintiff and his defence was only that it was Geeta Ram Sharma the husband of the plaintiff who is the landlord of the premises and in whose name the defendant has been depositing the rent. According to the learned Counsel the application was filed by the petitioner with clear intention to delay the proceedings of the suit after the evidence of the plaintiff was complete and the said application has been filed by the same advocate who has been defending the defendant and this conduct of the plaintiff by itself shows that the application is not bonafide. The issue whether the defendant is inducted as tenant by the plaintiff of two shops the subject matter of the suit has to be decided on merits by the learned trial Court and the impleadment of the petitioner in the said suit is not necessary to adjudicate upon the controversy involved in the suit is the further contention of the learned counsel appearing for the plaintiff. 10. To appreciate the rival contentions of the learned Counsel for the parties, it is pertinent and appropriate at this stage to observe that the law as to who are necessary or proper parties to a proceeding is well settled. A necessary party. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. (See : Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 Supreme Court 786. 11. (See : Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 Supreme Court 786. 11. In Harbans Singh and others v. V.E.R. Srinivasan and another reported in AIR 1979 Delhi 171, the Learned Single Judge of Delhi High Court has observed 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. Further, it is stated that this is only the normal and general and not invariable rule and in appropriate cases a third person can be impleaded as party. Order 1 Rule 10 can be invoked not only by the parties to the suit but by the Court suo motu. The Court can act only when some circumstances are brought to its notice by some party to show that it is necessary to implead some other party also. The application serves this purpose and if the Court finds that the application makes out a case for impleading a third party, the Court can proceed to do so, otherwise, the reference in Rule 10 (2) to applications by other parties to the suit and suo motu action of the Court would be rendered nugatory. 12. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others, (1992) 2 Supreme Court Cases 524, their Lordships have held that under Order 1 Rule 10(2) CPC, Court has judicial discretion which it has to exercise having regard to facts and circumstances of the case and in exercise of this discretion court can direct a plaintiff, though dominus litis, to implead a person as a necessary party defendant. 13. 13. In Krishan Lai and another v. Sudesh Kumari and others reported in AIR 1998 Punjab and Haryana 168, learned Single Judge dealing with the suit filed by one of co-owners for recovery of possession of property from licensee, claiming to be owner of entire property on basis of sale deed executed by other co-owner in his favour and the sale deed was disputed by other co-owner as a forged deed-licensee also claiming to be owner of property on the basis of sale deed of property by other co-owner in his favour, held that as no partition of property was effected by any time, other co-owner was necessary party as his interests would be prejudicially affected if he was not impleaded as party. 14. In Kisan Uchattar Madhyamik Vidyalaya Samiti, Deoria and others v. IIIrd Additional District Judge, Deoria and others, AIR 1989 Allahabad 168, the learned Judge has held that the provisions of Order 1, Rule 10(2) of the Code clearly empower the Court to implead any person as party suo motu, 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 questions involved in the suit. 15. Their Lordships of the Apex Court in Savitri Devi v. District Judge, Gorakhpur and others reported in AIR 1999 Supreme Court 976, held that Order 1, Rule 10 CPC enable the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Further it is said that avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. 16. In support of his submissions Mr. Further it is said that avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. 16. In support of his submissions Mr. Deepak Gupta, Advocate has placed reliance in B.K. Dutta, v. Smt. Nita Madan and another, AIR 1984 Calcutta 228, where in a suit for ejectment against wife, it was not contended on behalf of the defendant that she was not a tenant of the suit premises but her husband was a tenant, an application by the husband to implead him as a party to the suit claiming himself to be a real tenant could not be allowed as according to the observations of the learned Single Judge, husband was not necessary party. 17. In Ram Bilash Pandey and others v. Jai Narayan Gupta and others, AIR 1984 Patna 218 (Ranchi Bench), the facts of the case were that a suit for specific performance of contract for sale entered into by certain member of joint Hindu family was filed. Other member of the family claimed to be impleaded merely on the ground that the property which was sought to be sold was joint Hindu family property, and it was acquired by members selling it, with joint family funds. In the facts and circumstances of that case, the learned Judge of Patna High Court held that the member claiming to be impleaded was neither necessary party nor proper party to the suit and could not be given benefit of Order 1 Rule 10(2) CPC. 18. In Praveen Kumar Bhatia v. Dr. (Mrs.) At Ghosh and others, AIR 1989 Delhi 274, suit was filed by the plaintiff against defendants who were Doctor and Nurse for death by negligent treatment. Application by Insurance Company for impleadment since Doctor had obtained policy covering risk as "Doctors-Indemnity Insurance: IMA Medical Protection Scheme". Earlier application filed by defendant for impleading Insurance Company was also rejected. In the facts of that case, the learned Single Judge has said that the Insurance Company was neither necessary nor proper party as presence of Insurance Company in the suit was not required. 19. Earlier application filed by defendant for impleading Insurance Company was also rejected. In the facts of that case, the learned Single Judge has said that the Insurance Company was neither necessary nor proper party as presence of Insurance Company in the suit was not required. 19. In Bhupal Singh and others v. Bhagwati Prasad and others, AIR 1999 Rajasthan 41, the learned Single Judge of Rajasthan High Court has held that application for impleadment by petitioners who failed to prove themselves as tenants or sub-tenants could not be allowed as they being strangers not entitled to be impleaded as party. 20. In support of his submissions in exercise of jurisdiction under Article 227 of the Constitution of India by this Court, Mr. Deepak Gupta, Advocate has placed reliance in Essen Deinki v. Rajiv Kumar, (2002) 8 Supreme Court Cases 400. Their Lordships of the Supreme Court have held that exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It is so exercised in normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, to name a few. Further it is held that it is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the court below. The finding of fact being within the domain of the inferior tribunal, except where it is a perverse recording thereof or not based on any material whatsoever resulting in manifest injustice, interference under the Article is not called for. 21. In the light of the decided cases referred to above I have examined and considered the reasoning and finding recorded by the learned trial court in the impugned order. The defence of the defendant in the suit was that the plaintiff is not the landlady of the shops rented to him and it is her husband Geeta Ram Sharma who is in the habit of demanding more and more rent from him of the demised shops. The petitioner has filed application making categorical statement therein that one shop out of the two shops the subject matter of the suit has been rented out to her by the plaintiff for duration of five years at the rate of rent Rs. 300 per month. The petitioner has filed application making categorical statement therein that one shop out of the two shops the subject matter of the suit has been rented out to her by the plaintiff for duration of five years at the rate of rent Rs. 300 per month. In support of her claim of tenancy, the petitioner along with application has filed on record copy of original agreement dated 9.6.1997 which according to her was duly executed and signed by the plaintiff as well as by the petitioner in the presence of one Shyam Sunder Ward Member of Gram Panchayat, Jabli. The claim of the petitioner in regard to her tenancy rights in one shop out of the two shops, has to be considered and decided by the learned trial Court in a suit filed by the plaintiff if the petitioner is allowed to be impleaded as party defendant in the suit. In an ejectment suit by a landlady against the defendant, the petitioner has placed on record a prima facie case based upon alleged agreement executed by the plaintiff in her favour. The claim of the petitioner for her impleadment as party defendant in the suit is prima facie just, equitable and tenable. Her impleadment in the suit would prevent multiplicity of proceedings when the questions involved in the suit can be completely and effectively decided in the presence of all the parties. The defence of the plaintiff in opposition to the application of the petitioner was that the agreement is a forged documents and the signatures of the plaintiff appearing on the said agreement are also forged and fabricated, can only be looked into and considered by the trial Court if the petitioner is permitted to be impleaded as party in the suit and the issues would be decided on the basis of the evidence and other material on record. The trial Court has rejected the application on the ground that the application was filed after the evidence of the plaintiff was closed in the suit. This cannot be taken as a sound ground to dismiss the application as the question of delay will not arise in filing application under Order 1 Rule 10 CPC. The trial Court has rejected the application on the ground that the application was filed after the evidence of the plaintiff was closed in the suit. This cannot be taken as a sound ground to dismiss the application as the question of delay will not arise in filing application under Order 1 Rule 10 CPC. Similarly the other ground that the suit of the plaintiff will suffer as the mandatory notice under Section 106 of the Transfer of Property Act has to be served on the petitioner before seeking relief of possession by the plaintiff is unsustainable and unfounded for rejecting the application. In the light of the ratio of the judgment of the Supreme Court in Savitri Devi v. District Judge, Gorakhpur and others, AIR 1999 Supreme Court 976, in my considered view the presence of the petitioner before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. Thus, the learned trial Court has exercised its jurisdiction which has occasioned grave injustice to the petitioner and this Court is competent and empowered to exercise its supervisory jurisdiction under Article 227 of the Constitution of India to interfere in the impugned order as it is found to be perverse in the facts and circumstances of the case in hand. 22. In Surya Devi Rai v. Ram Chander Rai and others, reported in AIR 2003 Supreme Court 3044, their Lordships have exhaustively dealt and considered the scope and power of the High Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. 23. On consideration of the well settled proposition of law, their Lordships summed up the conclusion as under: "38. (1) Amendment by Act No. 46 of 1999 with effect from 1.7.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution . (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act. No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the list. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are (almost similar and the width of jurisdiction exercised by the High Court in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the Act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case". 24. 24. In the light of the above abstracted settled proposition of law by the Apex Court, the contention of the learned Counsel for the plaintiff that this Court in exercise of the jurisdiction under Article 227 of the Constitution of India would not be justified to interfere with the impugned order of the trial Court does not merit acceptance. Other contentions of the learned Counsel on the merits of the case too are not sustainable. The ratio of the decisions relied upon by the learned Counsel for the plaintiff in the facts and circumstances of the present case is not applicable. 25. No other contention was raised by the learned Counsel for the parties. 26. For the abovesaid reasons, this petition is allowed and the impugned order dated 2.7.2004 passed by Sub Judge 1st Class (re-designated as Civil Judge, Jr. Division), Kasauli, District Solan is quashed and set aside. The application filed by the petitioner under Order 1 Rule 10 CPC for impleadment as defendant No. 2 in Case No. 16/1 of 2001 is allowed. 27. Costs made easy. 28. The parties through their learned Counsel are directed to appear before the learned trial Court on 24.7.2004. 29. Record of the trial Court shall be remitted back immediately. The trial Court shall proceed to decide the suit in accordance with law. Appeal allowed. -