Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2321 (ALL)

Vinay Kumar Singh v. Vijay Laxmi Saxena

2014-08-04

DEVENDRA KUMAR UPADHYAYA

body2014
JUDGMENT Devendra Kumar Upadhyaya, J. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Indrajeet Shukla, learned counsel for the revision-applicant and Sri Q.M.Haque, learned counsel for the opposite party nos.1 and 2. 2. This revision petition has been preferred challenging an order dated 10th March, 2014, passed by the Special Judge SC/ST Act, Gonda whereby application moved by the revision-applicant seeking his impleadment under Order 1 Rule 10 of the Code of Civil Procedure in a suit instituted by the opposite party nos.1 and 2 against the opposite party no.3 has been rejected. 3. The facts of the case are that a suit for arrears of rent and eviction was instituted by the opposite party nos.1 and 2 on 21.05.2012 against the opposite party no.3 with the allegations that the landlord of house in question was the mother of the opposite party no.1 who in her life time on 15.09.2010 executed a will-deed in favour of the opposite party no.1, who is daughter and opposite party no.3, who is son-in-law. After the death of Smt Chandrawati Devi, the opposite party nos.1 and 2 became the owner of house in question. Further assertion in the plaint has been made by the plaintiffs-opposite party nos.1 and 2 that Smt Chandrawati Devi died on 18.06.2011 and after her death, by operation of the will, the opposite party nos. 1 and 2 have become owner. The plaintiffs before the learned court below also alleged in the plaint that house in question was leased out to the opposite party no.3 and opposite party no.3 has fallen in arrears and the suit for arrears of rent and eviction has been filed after giving notice under Section 106 of Transfer of Property Act. 4. In the aforesaid suit, initially no written statement by the opposite party no.3 was filed, instead applications were moved on 29.09.2012, 15.12.2012, 19.12.2012 and 10.01.2013 praying therein that the opposite party no.3 be permitted to deposit the rent in the court. Thereafter application under Order 1 Rule 10 of the Code of Civil Procedure was filed by the revision-applicant seeking his impleadment on the ground that he is the landlord of the house for the reason that late Smt Chandrawati Devi had executed a will in his favour on 15.06.2011 after cancelling the earlier will dated 15.09.2010. Thereafter application under Order 1 Rule 10 of the Code of Civil Procedure was filed by the revision-applicant seeking his impleadment on the ground that he is the landlord of the house for the reason that late Smt Chandrawati Devi had executed a will in his favour on 15.06.2011 after cancelling the earlier will dated 15.09.2010. It has further been stated in the said application that after expiry of the initial period of 11 months of lease of the house in question, the revision-applicant had executed another lease in favour of the opposite party no.3 and that he had been receiving rent from the opposite party no.3. It is only after the said application for impleadment under Order 1 Rule 10 of the Code of Civil Procedure was moved that the written statement was filed by the opposite party no.3 before the court below disputing that the plaintiffs-opposite party nos.1 and 2 are the landlords. 5. Sri Mohd. Arif Khan, learned Senior Advocate appearing for the revision-applicant has submitted that the court below has erred in law in rejecting the application for impleadment for the reason that the ownership of the house in question, on the basis of subsequent will-deed which is registered, has devolved on the revision-applicant and any decree in a suit filed by the opposite party nos. 1 and 2 against the opposite party no.3 is going to affect his interest. 6. On the other hand, learned counsel appearing for the opposite party nos. 1 and 2 has submitted that the revision-applicant has moved an application under Order 1 Rule 10 of CPC seeking his impleadment for malafide reasons, that too, on the basis of fictitious will which has allegedly been executed by the admitted owner of the house in question late. Smt Chandrawati on 15.06.2011. It has also been stated by Sri Haque that the opposite party no.1 is the daughter who would have inherited the house in question even in absence of a will and further that the will was executed only for the reason that the admitted owner of the house in question wanted to give share to the son-in-law as well. 7. It has also been stated by Sri Haque that the opposite party no.1 is the daughter who would have inherited the house in question even in absence of a will and further that the will was executed only for the reason that the admitted owner of the house in question wanted to give share to the son-in-law as well. 7. The crux of the argument made by learned counsel for the opposite party nos.1 and 2 is that the case by the revision-applicant alleging himself to be owner of the house on the basis of alleged subsequent will-deed has been set up only to defeat the very purpose of filing the suit and the said application has been moved subsequent to the applications moved by the opposite party no.3 praying the court below to get the rent deposited in the court. It has also been argued by Sri Haque that the written statement denying the ownership of the house lying with the opposite party nos.1 and 2 has been filed only after the application under Order 1 Rule 10 has been moved by the revision-applicant. He alleges connivance between the revision-applicant and the opposite party no.3. 8. Having given my anxious consideration to the competing arguments made by learned counsel for the parties, I am of the considered opinion that no interference in this petition is warranted for the simple reason that learned trial court below has rightly recorded a finding that any decree passed in a suit between the opposite party nos. 1 and 2 (plaintiffs) and opposite party no.3 (defendant) will not bind the revision-applicant. The Court further observes that if the defendant before the court below disputes that the opposite party nos.1 and 2 are the landlords of the house in question, it will be for him to establish and prove the said fact and for the said purpose the revision-applicant can always be summoned as witness. 9. There are certain settled principles which govern the impleadment under Order 1 Rule 10 of CPC. The well established principle of dominus litis can be departed only in case the person seeking his impleadment is able to establish that in his absence, the suit or the case before the court below can not proceed or whose presence is necessary for effective adjudication of the issues in the suit. 10. The well established principle of dominus litis can be departed only in case the person seeking his impleadment is able to establish that in his absence, the suit or the case before the court below can not proceed or whose presence is necessary for effective adjudication of the issues in the suit. 10. In the instant case, as observed above, the suit has been filed by the opposite party nos. 1 and 2 seeking eviction of the opposite party no.3 from the house in question and also seeking a decree for arrears of rent. The issue relating to genuineness of the will executed allegedly either in favour of the plaintiffs or the revision-applicant is not the subject matter of the suit pending in the court below. 11. In view of the discussions made and reasons given above, I do not find any illegality in the impugned order dated 10th March, 2014 passed by the Special Judge SC/ST Act, Gonda. 12. Accordingly, revision petition is hereby dismissed. 13. The court below is directed to expedite the proceeding of the suit filed by the plaintiffs and conclude the same within a period of six months from the date of production of certified copy of this order. 14. At this juncture, Sri Mohd. Arif Khan, learned Senior Advocate states that findings given in this order may not affect the other suit filed by the plaintiffs seeking cancellation of the will-deed dated 15.06.2011, namely, Regular Suit No. 808 of 2013. 15. The said prayer appears to be unnecessary for the reason that while passing the instant order, no such observation regarding the genuineness or otherwise of any of the wills allegedly executed either in favour of the plaintiffs or in favour of the revision-applicant has been made by the Court. 16. There will be no order as to costs. 17. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Indrajeet Shukla, learned counsel for the revision-applicant and Sri Q.M.Haque, learned counsel for the opposite party nos. 1 and 2. 18. This is an application seeking condonation of delay in filing instant revision petition. 19. An objection has been filed by the opposite party nos. 1 and 2 to the said application. 20. However, on consideration of the entire facts and circumstances of the case, the Court finds that cause shown in the application is sufficient. 21. 1 and 2. 18. This is an application seeking condonation of delay in filing instant revision petition. 19. An objection has been filed by the opposite party nos. 1 and 2 to the said application. 20. However, on consideration of the entire facts and circumstances of the case, the Court finds that cause shown in the application is sufficient. 21. Accordingly, application is allowed and delay is condoned.