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2016 DIGILAW 106 (GAU)

P. C. Laldingliana v. Zoramsanga Sailo

2016-02-16

M.R.PATHAK

body2016
ORDER M.R. Pathak, J. This Civil Revision Petition under Article 227 of Constitution of India has been filed by the petitioners against the Order dated 12.02.2014 passed by learned Senior Civil Judge-III, Aizawl in Civil Miscellaneous Application (CMA, in short) No. 426/2013 in the Declaratory Suit No. 12/2013 wherein the Court below directed the petitioner No.1 to vacate the 2nd floor of the building, within a period of 2 months from the date of the Order, which is in his possession and occupation as tenant of petitioner No.2/respondent having his grocery shop, his source of livelihood; although he was not made a party to the said proceeding. 2. Perused the records including the copy of the CMA No. 426 of 2013 in Declaratory Suit No. 2 of 2013 filed by the respondent No. 1/petitioner and also the copy of the Written Objection submitted by the Petitioner No. 2/Respondent No. 1 therein. 3. Heard Mr. L.H. Lianhrima, learned Senior counsel assisted by Ms. H. Lalmalsawmi, learned counsel appearing for the petitioners. Also heard Mr. Rosangzuala, learned counsel for the respondent No. 1 and Mrs. Linda L. Fambawl, learned Govt. Advocate appearing for the proforma respondent Nos. 2 to 5. 4. It is submitted that petitioner No. 2 constructed 5 (five) buildings in her various plots of land that are registered in the name of her son and grand-children's are being registered in the name of her son & grandchildren, which are occupied on rent by her tenants including the Petitioner No. 1 for the purpose of his business that was occupied on rent by her tenant including the petitioner No. 1 for his business and residential purposes. In one of such building where the Petitioner No.1, tenant of the Petitioner No.2, is having his grocery shop; in the same building, the Petitioner No.2 is in occupation of one floor with two of her three grandchildren and the respondent No.1, her grandson is in occupation of another floor. It is also submitted that being the head of the family and the actual owner of the said building, the tenants are in occupation of her said buildings with her consent & permission and the tenants had been paying rent to her from the date of initiation of their tenancy. 5. It is also submitted that being the head of the family and the actual owner of the said building, the tenants are in occupation of her said buildings with her consent & permission and the tenants had been paying rent to her from the date of initiation of their tenancy. 5. It is alleged that since 2012, the respondent No. 1 and his younger brother and sister started ill treating the Petitioner No.2, their grandmother and expelled her from the said building and tried to collect rents from all the tenants of her said buildings by verbal instructions and also by serving legal notices. 6. Being aggrieved with the said action of the respondent No. 1 and his brother and sister, the Petitioner No. 2 as a plaintiff filed a Declaratory Suit being Declaratory Suit No. 12/2013 against her three grand-children as defendants No. 1 to 3, including the respondent No. 1, praying for declaration of title and ownership of the land including the buildings in question that were constructed by her. 7. By his Order dated 03.06.2013 passed in CMA No. 112/2013 arising out of Declaratory Suit No. 12/2013, learned Senior Civil Judge-I, Aizawl, as an interim measure, till final disposal of said Declaratory Suit, directed that 40% of the house rent of the disputed buildings shall be collected by the petitioner No. 2/plaintiff and the remaining 60% shall be collected by the defendants including the respondent No. 1 and further, restrained the defendants from alienating, selling or damaging the properties in dispute during the pendency of the said Declaratory Suit. 8. As the Declaratory Suit No. 12/2013 and 3 Eviction Suit Nos. 5, 6 & 7 of 2013 between the same parties were pending in different Courts, in the interest of Justice and the proper adjudication of disputes between the same parties, learned Additional District Judge-III, Aizawl, by another order dated 24.06.2013 passed in Civil Misc. Case No. 188/2013 arising out of Eviction Suit Nos. 5, 6 & 7 of 2013 and Civil Misc. Case No. 211/2013 arising out of Declaratory Suit No. 12/2013 transferred the aforesaid Declaratory Suit and the three Eviction Suits to the Court of Senior Civil Judge-III. 9. Thereafter by an Order dated 12.08.2013, passed in Civil Misc. Case No. 188/2013 arising out of Eviction Suit Nos. 5, 6 & 7 of 2013 and Civil Misc. Case No. 211/2013 arising out of Declaratory Suit No. 12/2013 transferred the aforesaid Declaratory Suit and the three Eviction Suits to the Court of Senior Civil Judge-III. 9. Thereafter by an Order dated 12.08.2013, passed in Civil Misc. Application No. 313/2013 arising out of Declaratory Suit No. 12/2013 the learned Senior Civil Judge-III, Aizawl directed all the tenants of the suit properties to submit their house rents to the Court on or before the 7th day of every month with effect from September 2013 till the final disposal of the suit with the observation that after receiving the complete monthly house rent, the same shall be distributed by the Court between the plaintiff/petitioner No. 2 and the defendants including respondent No. 1 as per the distribution ratio of 40:60 in terms of the earlier order dated 03.06.2013 in C.M Appln. No. 112/2013. 10. During pendency of the said Declaratory Suit, the respondent No. 1 filed the Eviction Suit No. 7/2013 against the present petitioner Nos. 1 & 2 praying for eviction of the petitioner No. 1 from the building of the petitioner No. 2 covered by LSC No. 1030101/321 of 2008, involved in the said suit, that is registered in the name of the respondent No. 1. But on the prayer of the said respondent No. 1 in Miscellaneous Application No. 373/2013, learned Senior Civil Judge-III, Aizawl vide Order dated 01.10.2013 disposed of the Eviction Suit No. 7/2013 on withdrawal. 11. Subsequent to that the respondent No. 1 as a petitioner on 17.10.2013 filed the Civil Miscellaneous Application No. 426/2013 in the said Declaratory Suit No. 12/2013, under Section 151 of the Code of Civil Procedure for evicting the occupant of the 2nd Floor of one of the suit building, namely, the petitioner No.1; by claiming that the present respondent No. 1 is the owner of the suit land and the building in question covered by LSC No. 10301/01/321 of 2008. 12. In the said CMA No. 426/2013, the respondent No.1/petitioner alleged that the 2nd Floor of the said building was given on rent to the present petitioner No. 1 @ Rs. 12. In the said CMA No. 426/2013, the respondent No.1/petitioner alleged that the 2nd Floor of the said building was given on rent to the present petitioner No. 1 @ Rs. 4,500/- per month, who occupied the same and runs his grocery shop in it by storing large quantity of heavy items like sacks of rice, sugar, potato, onion, common salt, tin of edible oil etc. and such storage of heavy article is likely to cause damage of the building, more particularly salt is likely to cause corrosion of the rolling shutter of the shop. It is also alleged that loading & unloading of the said items pose a dangerous threat to the strength of the building thereby causing crack to it. It is further alleged that the first floor, below the said shop of the petitioner No.1, of the building is occupied by the respondent No. 1/petitioner with his family and as the building constantly shakes, they had to live in fear in their own house. In the said CMA No. 426/2013, the respondent No.1/petitioner contended that though the petitioner No. 1, the tenant was requested more than once not to store heavy items in the said shop, he did not pay any heed to it and as such on 28.09.2013 he wrote a letter to the petitioner No. 1, the tenant to leave the premises if they cannot abide by the terms laid down by him and in reply to that, the counsel of the said tenant, the petitioner No. 1 on 08.10.2013 informed the respondent No. 1, the petitioner not to evict any of the occupant of the building during pendency of the said Declaratory Suit. In the said application it was argued that if the tenant, the petitioner No.1 is allowed to go by the building for a long duration than it may collapsed and may cause further damage to the building in question and if the said occupant/tenant, the petitioner No.1 is evicted by the Court, no prejudice would be caused to the other party and accordingly prayed for a direction of the petitioner No.1 from the land and building covered by LSC No. 10301/01/321 of 2008 that belongs to the respondent No.1/petitioner. 13. 13. From perusal of the said CMA No. 426/2013 filed by the said respondent No. 1/petitioner as well as the impugned Order dated 12.02.2014 passed by the learned Senior Civil Judge-III, Aizawl, it can be seen that the respondent No. 1 in his said application made only the present petitioner No. 2 as the sole respondent and wherein the present proforma respondent Nos. 2 to 5 were made proforma respondent Nos. 2 to 5. But respondent No. 1/petitioner in his said CMA No. 426/2013 did not add the present petitioner No. 1 as a party respondent though prayed for necessary direction from the Court to evict him from the premises in question. 14. From the written objection of the sole respondent, the present petitioner No. 2 filed on 07.11.2013 in the said CMA No. 426/2013, it is seen that she, amongst other objections, raised the preliminary objection regarding maintainability of the said petition for non-joinder of parties stating that in the said petition the respondent No.1/petitioner did not join the necessary party, the tenant of the 2nd floor of the suit building. 15. But neither the petitioner of said CMA No. 426/2013 impleaded the said tenant/present petitioner No. 1 in the said application nor the trail Court considered the matter of adding the present petitioner No. 1 as a party respondent in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the said application, but went ahead with the matter without adding him as a party respondent, issued the impugned Order dated 12.02.2014 and directed the said tenant, the petitioner No.1 to vacate the shop premises of the 2nd floor of the building registered in the name of the respondent No.1/petitioner within 2 (two) months from the date of the said Order. 16. Hence this Civil Revision Petition by the said tenant/petitioner No. 1 under Article 227 of the Constitution of India 17. Mr. Rosangzuala, learned counsel for the respondent No. 1/petitioner admitted that the tenant/petitioner No. 1 was not made a party respondent in the said CMA No. 426/2013, though specific prayer was made in it for eviction of the said tenant from the suit premises involved in the Declaratory Suit No. 12/2013, still pending for disposal. 18. Mr. Rosangzuala, learned counsel for the respondent No. 1/petitioner admitted that the tenant/petitioner No. 1 was not made a party respondent in the said CMA No. 426/2013, though specific prayer was made in it for eviction of the said tenant from the suit premises involved in the Declaratory Suit No. 12/2013, still pending for disposal. 18. The Hon'ble Supreme Court in the case of Khetrabasi Biswal v. Ajaya Kumar Baral, reported in (2004) 1 SCC 317 have held that – "the procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect." 19. In the case of Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar & Another, reported in AIR 1963 SC 786 , the Hon'ble Supreme Court have held that – "To ascertain who are necessary or proper parties in a proceeding, the law on the subject is well settled and it is enough if we state the principle. 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." 20. The Hon'ble Apex Court in the case of Jagtu v. Suraj Mal, reported in (2010) 13 SCC 769 have held that – "as per Order 1, Rule 9 of the Code of Civil Procedure, 1908, if any relief is claimed against the State, the State is a necessary party and as the respondent-plaintiffs sought declaration of certain rights on the suit land belonging to the State of Haryana, the State of Haryana was a necessary party. There is a compete fallacy in the finding recorded by the first appellate court that the respondent-plaintiffs had not sought any relief against the State. The first appellate court failed to appreciate that declaration in respect of certain rights over the land belonging to the State was the relief sought in the suit. Thus, in the absence of the owner of the land, no such declaration could be granted. Therefore, the State of Haryana was a necessary party. The first appellate court failed to appreciate that declaration in respect of certain rights over the land belonging to the State was the relief sought in the suit. Thus, in the absence of the owner of the land, no such declaration could be granted. Therefore, the State of Haryana was a necessary party. The suit, therefore, could not proceed for want of necessary parties." In view of the same the appeal was allowed and the impugned judgment and order set aside. 21. In the case of Prabodh Verma v. State of U.P., reported in (1984) 4 SCC 251 , the Hon'ble Supreme Court observed that – "a High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties. 22. In the case of Kanakarathanammal v. V.S. Loganatha Mudaliar & Another, reported in AIR 1965 SC 271 , the Hon'ble Supreme Court held that – "where a plaintiff filed her suit to recover properties left by her mother claiming to be her exclusive heir and refused to join as parties her brothers, who were held to be a her co-heirs, their non-joinder was a held to be fatal." In the said case also the plea of non-joinder had been expressly taken by respondents in the trial Court and while the suit was being tried, the appellant did not file any application before the trial Court to add her brothers. 23. In the case of Rabizul Ali Laskar v. Saibur Raja Laskar, reported in (2002) 2 GLT 169, this Court has held that – "In the case reported in AIR 1957 Madras 207; their Lordships observed that a formal defect is a defect of form. It is noticeable that their Lordships while setting out the categories of defects as formal defects have left out "non-joinder of a necessary party" as a formal defect. It is noticeable that their Lordships while setting out the categories of defects as formal defects have left out "non-joinder of a necessary party" as a formal defect. In the case of 1997(1) GLT 512 (The Executive Director, Hindustan Paper Corporation Ltd. and others v. Ramvash Bind and others), this Court held that non-joinder of a necessary party to a suit is not a formal defect as the same strikes at the root of the suit and therefore in such a case provision of Order 23, Rule 1 is not be attracted. This Court in the two decisions reported in AIR 1994 Gauhati 110 (Chuba Temsu Ao and others v. Nangponger and others) held that a necessary party is one without whom no order can be made effectively and non-joinder of necessary party is fatal to the suit. It was held that if in a suit a necessary party is not added it shall have to be dismissed. This Court in a decision reported in 2000 (1) GLT 237 (Lepa Ram Boro and others v. Nabin Chandra Boro) while dealing with expression "necessary party" and "appropriate party" had held that a necessary party is one without whom no order in a suit can be effectively made and a suit cannot be decreed in absence of a necessary party. This Court again in the case reported in 1997(1) GLT 512 (The Executive Director, Hindustan Paper Corporation Ltd. and others v. Ramvash Bind and others) had held that if a necessary party is not impleaded in the suit, the Court is to dismiss the suit on that ground alone as otherwise the decree passed will be a futile one. 24. It is already observed that the respondent No.1/petitioner in his said CMA No. 426/2013 made a specific prayer for eviction of the tenant/the present petitioner No. 1 from the 2nd Floor of the building in question, but he was not made a party in the said petition. In the said application, the sole respondent/plaintiff/the present petitioner No. 2 in her Written Statement before the trial Court expressly pleaded that the application in question is bad for non-joinder of the necessary party, the tenant of the 2nd Floor of the suit building (present petitioner No.1). In spite of such plea, the respondent No. 1 did not made any application to implead the said tenant/petitioner No.1 herein. In spite of such plea, the respondent No. 1 did not made any application to implead the said tenant/petitioner No.1 herein. The trial Court also did not consider the said aspect of the matter while passing the impugned order dated 12.02.2014 and on the other hand by the said order directed the tenant/petitioner No.1 to vacate the 2nd floor of the suit building registered in the name of the respondent No.1/petitioner within 2 (two) months from the date of the Order. 25. The petitioner No.1 against whom eviction has been sought for, being a necessary party in the said application, without whom no order in the said CMA 426/2013 could have been effectively made and therefore, in his absence no direction could have been issued by the trial Court. It is a settled law that if the decree cannot be effective without the absent of parties, the suit is liable to be dismissed. Due to non-impleadment of the said tenant, the petitioner No.1 herein, who is a necessary party in the said CMA 426/2013 and in spite of bringing the same to the notice of the present respondent No. 1/the petitioner of the said application by the present petitioner No.2, the sole respondent therein; the trial Court committed illegality in issuing the impugned order dated 12.02.2014 in the said CMA 426/2013. 26. For the reasons stated above this Court in exercise of its discretion under Article 227 of the Constitution of India the impugned order dated 12.02.2014 passed by learned Senior Civil Judge-III, Aizawl in CMA No. 426/2013 arising out of Declaratory Suit No. 12/2013 is hereby set aside and quashed for non-impleadment of the petitioner No.1, the tenant; whose eviction was sought for from the 2nd Floor of the suit building. 27. No order as to costs. 28. Registry shall send down the LCR forthwith.