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2006 DIGILAW 2273 (DEL)

GANDHI TYAGI v. VIRENDER KUMAR TYAGI

2006-12-07

SANJAY KISHAN KAUL

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SANJAY KISHAN KAUL, J. ( 1 ) RESPONDENT No. 1 as landlord filed a petition against respondent No. 2/tenant under Section 14 (1) (a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) on the ground of non-payment of rent. In the said eviction proceeding the petitioner filed an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) seeking impleadment on the ground of being the owner of the property and the said application was allowed by an order dated 17. 3. 1997. Respondent No. 1 aggrieved by the same filed an appeal before the Rent Control Tribunal and the appeal was allowed by the impugned order dated 4. 9. 1998, which is now sought to be challenged in the present proceedings under Article 227 of the Constitution of india. ( 2 ) IN order to appreciate the rival contentions of the parties, it is necessary to set forth some of the salient facts. It is an undisputed position that the property was owned by one Shri Hari Ram Tyagi. Shri Hari Ram Tyagi is stated to have six surviving daughters. Respondent No. 1 is the son of the step brother of shri Hari Ram Tyagi and also claims to be the attorney of the daughters of Shri hari Ram Tyagi. The petitioner claimed to be the adopted son of Shri Hari Ram tyagi. Shri Hari Ram Tyagi's wife was one Shrimati Raja Devi, who was the sister of the natural grandfather of the petitioner. The petitioner claims that late Shri Hari Ram Tyagi left a Will dated 26. 8. 1988 bequeathing the property in his favour. Since the matter is contested insofar as the Will is concerned a probate proceeding is still pending in respect of the same. ( 3 ) THE only aspect to be analysed in the present case is as to whether the petitioner is a necessary or proper party in an eviction proceeding filed by respondent No. 1 claiming to be the landlord against respondent No. 2/tenant. It may be noticed that respondent No. 2 is stated to be ex parte in the eviction proceeding and an application filed to set aside the ex parte proceeding was also dismissed and that order is stated not to have been challenged further. It may be noticed that respondent No. 2 is stated to be ex parte in the eviction proceeding and an application filed to set aside the ex parte proceeding was also dismissed and that order is stated not to have been challenged further. Learned counsel for respondent No. 1 points out that after the tenant failed to get the ex parte proceeding set aside the application in question was filed seeking impleadment and the counsel representing the tenant in the application to set aside the ex parte proceeding is the counsel who thereafter filed the application for impleadment and continues to represent the petitioner. ( 4 ) THE submission of the learned counsel for the petitioner is that since the petitioner is claiming ownership of the property, the petitioner must be impleaded as a party in the eviction proceedings initiated by respondent No. 1 against respondent No. 2. On the other hand, learned counsel for respondent no. 1 submits that there is no such requirement in eviction proceedings. Learned counsel for respondent No. 1 also points out that the own stand of the petitioner earlier was that he was a tenant under Shri Hari Ram Tyagi in respect of a different portion of the property and in fact in the eviction proceedings initiated against the petitioner in respect of that portion, the petitioner has been held to be a tenant and a defaulter of rent vide order dated 21. 7. 2005 though an appeal against the same is pending before the Rent Control Tribunal. Learned counsel further points out by reference to the record that the petitioner, in respect of his tenanted portion, had got a no objection from late shri Hari Ram Tyagi to obtain electricity connection and filed an affidavit dated 29. 9. 1987 stating that he was the son of Shri Maha Nand Tyagi (natural father) and that he was a tenant in that portion of the property. The electricity connection has also been issued accordingly in the name of the petitioner for his tenanted portion. The ration card and the school certificate of the petitioner also bear the status as a son of Shri Maha Nand Tyagi and not of Shri Hari Ram Tyagi. ( 5 ) INSOFAR as the aforesaid aspects are concerned, there is no doubt that the petitioner has taken stand at different stages of being the son of Shri Maha nand Tyagi. ( 5 ) INSOFAR as the aforesaid aspects are concerned, there is no doubt that the petitioner has taken stand at different stages of being the son of Shri Maha nand Tyagi. However, that aspect is not to be enquired into in these proceedings since the petitioner is claiming right to the property in pursuance to the alleged Will dated 26. 8. 1988. The fact whether the petitioner is or is not the adopted son of Shri Hari Ram Tyagi would be possibly one of the aspects to be considered to determine the intention of the testator while executing the will. Therefore, it is not necessary to comment on this aspect any further other than to note the stand taken by the petitioner in different forums. ( 6 ) LEARNED counsel for respondent No. 1 further points out that a similar application of the petitioner for impleadment in an eviction proceeding filed against another tenant was rejected by the Additional Rent Controller on 30. 1. 2004, which order has not been challenged further. However, this dismissal was on account of non-prosecution. ( 7 ) LEARNED counsel for respondent No. 1 has drawn the attention of this Court to certain judgements on the question as to whether in an eviction proceeding against the tenant the question of title can be gone into and whether a third person claiming to be an owner can be impleaded as a party. A Division Bench of the Madhya Pradesh Court in Sunil and Ors. Vs. Satyanarayan Dubey and Ors. AIR 1985 Madhya Pradesh 199 has held that in a suit filed by the landlord against the tenant for ejectment based on a contract of tenancy, a third party claiming ownership cannot be impleaded as that would alter the nature of the suit and also enlarge the scope. It was further observed that a plaintiff is a dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law and the plaintiff cannot be required to change the nature of the suit on the ground that the addition of the party would avoid multiplicity of suits. Learned single Judge of the Punjab and haryana High Court in Suresh Kumar Vs. Shri Jagdish Chander and Ors. Learned single Judge of the Punjab and haryana High Court in Suresh Kumar Vs. Shri Jagdish Chander and Ors. 1983 (1)RCR 238 has held that an application filed by third parties seeking impleadment in ejectment proceeding under the Rent Act on grounds of being the exclusive owner of the suit property is not maintainable as the Rent Controller is not competent to determine the title of the parties. A similar view has also been taken in Inder Lal Vs. Babu Lal 1998 (1) RCR 590 by the then learned Chief justice of the Punjab and Haryana High Court holding that the Rent Controller has to proceed on the basis whether there existed relationship of landlord and tenant between the parties and not to decide the question of title. ( 8 ) THE common view, which flows from all the aforesaid judgements is that in a suit filed by the landlord against the tenant or an ejectment proceeding filed under the Rent Act, the question of title has not to be gone into. Under the rent Act, the Rent Controller is not even competent to go into this question. All that is required is to see the relationship of landlord and tenant and whether any of the grounds under the proviso to Section 14 (1) of the said Act are made out. In case a third party claims any right in the property in question that has to be established in independent proceeding of title to be initiated by such third party and not by the process of impleadment in the eviction proceedings. ( 9 ) IN view of the aforesaid, it cannot be said that the impugned order of the rent Controller Tribunal suffers from any patent or jurisdictional error. The petition is without any merit and is dismissed with costs of Rs. 5,000/ -.