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2010 DIGILAW 1324 (RAJ)

Ishrat Javed v. Abdul Salim

2010-07-28

R.S.CHAUHAN

body2010
JUDGMENT: Hon'ble CHAUHAN, J.-The defendant-petitioner is aggrieved by the order dated 26.05.2010 passed by the Additional Chief Judicial Magistrate No. Jaipur City, Jaipur, whereby the learned Magistrate has rejected the application filed by the defendant-petitioner under Order 1 Rule 10 CPC. 2. It is the case of the petitioner that respondent-plaintiff, Abdul Salim, had filed a suit for eviction and rent against the petitioner. According to the plaintiff, the property in dispute was an ancestral property. However, after partition of the said property, certain portion came in his share. He further claims that he let out the property to the petitioner. Since the petitioner had failed to pay rent, the plaintiff claimed for rent as well as for eviction of the petitioner from the rental premises. However, the petitioner moved an application under Order 1 Rule 10 CPC, wherein he had pleaded that since the property was an ancestral one, since the plaintiffs father had left four sons, five daughters and two wives, therefore, they should have been arrayed as parties in the suit. Since they have not been made parties in the suit, the suit deserves to be set aside. However, the said application has been dismissed vide order dated 26.05.2010 by the learned Court below. Hence, this petition before this Court. 3. The learned counsel for the petitioner has vehemently contended that although the plaintiff has claimed that the property was partitioned, he has not submitted any documentary proof to establish the said fact. Moreover, since 20 there arc other family members, they should have been arrayed as parties in the suit. 4. Heard the learned counsel for the petitioner and perused the impugned order. 5. A bare perusal of the impugned order clearly reveals that the plaintiff has pleaded that there was a settlement within the family, in the year 1990, and the ancestral property was partitioned among the family members. He has further pleaded that the property which was rented out to the petitioner falls in his share. The learned Magistrate was certainly justified in observing that the suit is for rent and eviction and it is not a suit about the title of the property. He was further justified in concluding that the petitioner, in his written statement, has admitted the fact that he has been paying the rent to the plaintiff. The learned Magistrate was certainly justified in observing that the suit is for rent and eviction and it is not a suit about the title of the property. He was further justified in concluding that the petitioner, in his written statement, has admitted the fact that he has been paying the rent to the plaintiff. Thus, the plaintiff falls within the definition of "landlord" and the petitioner falls within the definition of "tenant" Therefore, there is no need for the plaintiff to array the other family members as parties in the suit. Hence, there is neither any illegality, nor any perversity in the impugned order. 6. There is no merit in the writ petition; it is, hereby, dismissed.