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2011 DIGILAW 9 (KAR)

Sharada v. Jayalakshmma

2011-01-03

A.S.PACHHAPURE

body2011
ORDER A.S. PACHHAPURE, J.—The petitioner has challenged the order rejecting her application filed under the provisions of Order 1, Rule 10(2) read with Section 151 CPC to implead her as a co-defendant in O.S. No. 5973/2008 pending on the file of the City Civil and Sessions Judge, Bangalore City. 2. The facts relevant for the purpose of this petition are as under: Respondents 1 to 3 instituted a suit in O.S. No. 5973/2008 against the 4th respondent seeking eviction of 4th respondent and for vacant possession of the suit schedule premises which is a portion of House No. 39, 13th Cross, 8th Main Road, Malleswaram. The copy of the plaint in this regard has been, produced by the petitioner at Annexure B. The 4th respondent is a tenant of the premises on a monthly rental of Rs. 11,100/-. The property was owned by Smt. Kemparama the mother of Respondents 1 to 3 and mother-in-law of the petitioner who filed an application for impleading. The petitioner has instituted a suit in O.S. No. 2245/2003 for partition and separate possession of her share in the suit property. These facts are not in dispute. 3. The petitioner submitted the application for impleading as one of the defendants claiming that she is a necessary and proper party to the proceedings and the copy of the application filed by her is produced at Annexure D. She claims that her husband was collecting the rent from Respondent No. 4 during his lifetime and he died on 30-11-2002 and she and her children are the legal heirs. She has also sought for a cancellation of Will dated 27-3-2001 said to have been produced in the suit. She has also filed an application for appointment of receiver in respect of the joint family properties including the suit property. It is her claim that suppressing all these material facts, the Respondent No. 3 has instituted the suit by manipulating documents and to make a wrongful gain. She states that there are no bona fides on the part of Respondents 1 to 3 in filing the suit and she submits that she is a necessary and proper party to the proceedings. 4. The objections were filed by the 3rd plaintiff denying the allegations made without disputing the relationship of the applicant. She states that there are no bona fides on the part of Respondents 1 to 3 in filing the suit and she submits that she is a necessary and proper party to the proceedings. 4. The objections were filed by the 3rd plaintiff denying the allegations made without disputing the relationship of the applicant. It is her claim that there is a registered Will under which they have become the absolute owners of the entire suit schedule building and there is an attornment of tenancy in their favour and she has denied about the agreement executed by the deceased husband of the applicant in favour of Respondent No. 4 on 9.1.1987, 19.2.1998 and 22.2.2000. They claim that her right is not yet determined in the suit filed by her and in the circumstances, she is not a necessary or proper party to the proceedings. 5. The Court below heard the counsel for both the parties and on appreciation of the material on record has rejected the application holding that, the applicant, is not a necessary party and even one co-owner can seek the possession of the tenanted premises. In the circumstances, the petitioner aggrieved by the order rejecting the application has approached this Court by way of this writ petition. 6. I have heard the learned counsel for the petitioner and the counsel for Respondents 1 to 4. 7. It is the contention of the counsel that the petitioner is a necessary and proper party to the proceedings. Though it is a suit for eviction of tenant, as a sharer of the family properties, she is bound to know as to what happens in the proceedings and her presence is necessary to effectively adjudicate the claim between the parties. Hence, he submits that the rejection of the application by the Court below is erroneous. 8. Per contra, the counsel for Respondent No. 4 has supported the order of the Court below. 9. It is no doubt true that any one of the co-owner can institute a suit for eviction of a tenancy and it is not necessary that all the owners should join as plaintiffs for eviction of a tenant. But it does not mean that, all co-owners are not at all necessary or proper parties and that, it has to be instituted by one co- owner. But it does not mean that, all co-owners are not at all necessary or proper parties and that, it has to be instituted by one co- owner. It is in the context of these circumstances the request of the petitioner has to be taken into consideration. She is the daughter-in-law of Kempamma wherein the respondents 1 to 3 are the daughters of Kempamma and they have set up a Will executed by deceased Kempamma in their favour and claiming an absolute interest in the properties. It is relevant to note that the applicant has also filed a suit for partition and she is claiming her share. The applicant may seek the mense profits as the litigation takes years together time. 10. The petitioner has relied upon the decision of the Hon’ble Supreme Court reported in M/s. India Umbrella Manufacturing Co. and others vs. Bhagabandei Agarwalla (Dead) by LRs. Smt. Savitri Agarwalla and others, (2004) 1 Supreme 350 , wherein the Hon’ble Apex Court has held as under: “6. ....It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners (Sri Ram Pasricha vs. Jagannath and others, (1976) 4 SCC 184 ; Dhannalal vs. Kalawatibai and others, (2002) 6 SCC 16 . This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant, does so on his own behalf in his own right and as an agent, of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallized on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit, the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law.” 11. So as could be seen from, the dictum laid down by the Apex Court, one co-owner can maintain a suit for possession and the other co-owners would be the agents. The consent, of the co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenants and the suit is filed in spite of their disagreement. Now, as could be seen from the facts on hand, there is a dispute between respondents 1 to 3 and the petitioner, wherein the respondents 1 to 3 have denied the right of the petitioner to the properties by way of inheritance basing their claim on a registered Will in their favour. 12. The validity of the Will cannot be determined in the suit instituted by Respondents 1 to 3. Furthermore, as could be seen from the affidavit filed in support of the application filed by the petitioner under the provisions of Order 1, Rule 10 CPC, nowhere it is stated that she do not agree or consent for the eviction of the tenant. She has also filed an application for appointment of the receiver which is pending consideration. She can obtain any type of reliefs as a tenanted property is also a subject matter of the suit instituted by her. In the circumstances, I am of the opinion that the decision of the Apex Court does not apply to the facts on hand. 13. Furthermore, the counsel for the respondents has relied upon the decision of the Apex Court reported in J.J. Lal Pvt. Ltd. and others vs. M.R. Murali and another, AIR 2002 SC 1061 . In the case referred to supra, there was also a dispute by the Municipal Corporation and sisters of the landlord who sought to be impleaded as parties to the suit for exaction. In the case referred to supra, there was also a dispute by the Municipal Corporation and sisters of the landlord who sought to be impleaded as parties to the suit for exaction. In this context, it was held by the Apex Court as under: “Relationship of Municipal Corporation, the original owner of premises with landlords and their mutual rights and obligations are not germane to the proceedings—Similarly, the question of title between sister of landlords and the landlords cannot be decided in these proceedings—Impleadment of Municipal Corporation and sister of landlord would change complexion of litigation and raise such controversies as are beyond scope of this litigation—Presence of either of the applicants is neither necessary for decision of question involved in these proceedings nor their presence necessary to enable the Court effectually and completely to adjudicate upon and settle questions involved in these proceedings—Held, they are neither necessary nor proper parties.” 14. Though the petitioner has filed an application to implead herself as party to the proceedings, the question raised by her in the application and the controversies between the parties are beyond the scope of the suit for eviction. The suit instituted by Respondents 1 to 3 is a simple suit between the landlord and tenant seeking the eviction and the mutual rights and obligations are not germane to the present proceedings. So also, the question with regard to the title of the petitioner to the suit property cannot be decided in these proceedings. The impleadment of the petitioner and her children would change the complexion of litigation and raise such controversies as are beyond the scope of litigation. In that view of the matter, the presence of the petitioner and her children before the Court is neither necessary nor proper and in the circumstances, I am of the opinion that the application filed by the petitioner was rightly rejected by the Trial Court. 15. The counsel for the Respondent No. 4 has relied upon the decision of High Court of Calcutta reported in Gulab Ch. Gupta vs. Ramjeeban Sanu and another, AIR 2008 (NOC) 1460 (Cal.) wherein the High Court considering the provisions of Order 1, Rule 10 CPC has held as under: “....No party excepting landlord and tenant, is a necessary party. 15. The counsel for the Respondent No. 4 has relied upon the decision of High Court of Calcutta reported in Gulab Ch. Gupta vs. Ramjeeban Sanu and another, AIR 2008 (NOC) 1460 (Cal.) wherein the High Court considering the provisions of Order 1, Rule 10 CPC has held as under: “....No party excepting landlord and tenant, is a necessary party. However, only notified subtenants are required to be joined as party in an eviction suit—Applicant-opposite party wanted to be added as a party defendant to said suit, only for purpose of establishing his title in suit property—Not permissible.” 16. Furthermore, the counsel for the respondent has also relied upon the decision of the Rajasthan High Court reported in Vimla Devi vs. Nand Lal and others, 1993 (2) All India Rent Control Journal 143, the facts disclose that an ejectment suit was filed by the landlord on the ground of default in payment of rent. An application was filed under the provisions of Order 1, Rule 10 CPC claiming rent as such alleging that the non-petitioners are the owners of the premises. In these circumstances, it is held as under: “In case the non-petitioner Nos. 1 to 3 are impleaded in the present suit, the enquiry of the suit is likely to be enlarged. The Court has to give a finding as to whether the plaintiff is the owner of the property in dispute or the non-petitioner Nos. 1 to 3 are the owners of the property. This type of enquiry is not equipped in a suit filed by the landlord against a tenant for eviction and recovery of arrears of rent. In my view, the order passed by the trial Court is arbitrary one and in case the same is allowed to stand, it would cause a failure of justice and will create complications.” 17. So taking into consideration the principles laid down in the decision referred to supra, it is not the case of the petitioner that she does not want, the eviction of the tenant. So far as the will executed by her mother in law is concerned, it cannot be decided in a suit for eviction at the instance of respondents 1 to 3 as they have to independently establish the execution of the Will by their mother. So far as the will executed by her mother in law is concerned, it cannot be decided in a suit for eviction at the instance of respondents 1 to 3 as they have to independently establish the execution of the Will by their mother. If the petitioner is impleaded as party to the proceedings, it would create some complications in the disposal of the suit and no relief could be granted to the petitioner. If eviction is ordered and in case, if the petitioner seeks her share in the suit for partition, she can claim the mesne profits. Hence, considering all these facts and circumstances, I am of the opinion that the Trial Court was justified in rejecting the application of the petitioner filed under the provisions of Order 1, Rule 10 CPC. In that view of the matter, I do not find any merit in the petition and it is dismissed accordingly.