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2016 DIGILAW 836 (MP)

Deepak Chaturvedi v. Hariom Singhal

2016-09-20

ROHIT ARYA

body2016
ORDER 1. Petitioner, defendant No.1, has approached this Court taking exception to the order dated 28.10.2015 passed by the trial Court. By the aforesaid order, application under Order 1 rule 10(2) CPC filed by the defendant No.2 for transposition as plaintiff has been allowed. 2. The facts necessary for disposal of this writ petition in nutshell are to the effect that plaintiffs No.1 and 2 brothers filed a suit for eviction against the petitioner-defendant No.1; the tenant in the premises on the ground of bona fide need of the suit premises for non-residential purpose and for arrears of rent as well as mesne profit. 3. It is pleaded in the suit that the suit property is part of the house Municipal No.43/1276, Dahi Mandi, Daulatganj, Lashkar, Gwalior. The house was of the ownership of Smt.Rukmini Devi, mother of the plaintiff. Petitioner-defendant No.1 was inducted as tenant on a monthly rent of Rs.3,500/-. During her lifetime, late Smt.Rukmini Devi had executed a will on 26.6.1993 and bequeathed the entire house in favour of her three sons in equal 1/3 share. Rukmini Devi died on 17.12.2007. By virtue of the will, plaintiffs and husband of the defendant No.2 Mahendra Singhal became joint owner and landlord of the defendant No.1. As defendant No.1 defaulted in the matter of payment of rent to the plaintiffs in the ratio of 1/3 share each, therefore, a notice dated 3.7.2008 was issued to him calling upon him to make good the default but the defendant No.1 chose not to make the payment of rent to them. Under these circumstances, plaintiffs filed a suit for declaration and injunction against the defendant No.1 and husband of defendant No.2 Mahendra Singhal vide Civil Suit No.122-A/2009. The suit, though was dismissed but the appeal was allowed and the decree was passed, whereunder defendant No.1/petitioner was directed to pay the rent in the ratio of 1/3 share each with further direction that the husband of defendant No.2 shall not realise rent from defendant No.1 on behalf of plaintiff, with further order that the plaintiffs are entitled to recover Rs.16,332/- from defendant No.2. However, defendant No.1 thereafter denied the payment of rent purportedly for the reason of having raised the objection to the entitlement of the plaintiffs and therefore denied that there is arrears of payment of rent 4. Therefore, suit for arrears of rent as one of the grounds was filed. However, defendant No.1 thereafter denied the payment of rent purportedly for the reason of having raised the objection to the entitlement of the plaintiffs and therefore denied that there is arrears of payment of rent 4. Therefore, suit for arrears of rent as one of the grounds was filed. That apart, in para 6 of the plaint, the plaintiff No.1 has expressed the need of his elder son Nitin for opening of general store and sought eviction of the suit premises on the ground of bona fide need due to non availability of other suitable accommodation of their ownership. 5. The petitioner/defendant No.1 filed written statement and denied plaint’s allegation. The written statement was filed on 15.10.2014. Thereafter, the counter claim was filed on 25.6.2015, to which plaintiffs filed written statement on 8.7.2015. In the written statement, it was contended that in the earlier suit filed against the defendant No.1/petitioner and husband of defendant No.2 Mahendra Singhal, no relief of eviction of the premise on the ground of arrears or bona fide need was claimed and therefore, right of eviction on such grounds was abandoned, hence, subsequent suit on the same premise can not be allowed to continue as the plaintiffs are estopped from seeking eviction on the said ground. There is no partition amongst the brothers. In fact, the petitioner has paid a sizable amount on different dates to husband of defendant No.2 Mahendra Singhal for the purpose of sale of 1/3 share of the suit property as he was in need of money for his treatment as he had suffered from cancer. Late Mahendra Singhal had also executed a consent letter dated 20.7.2009 in his favour showing his intention to part with his 1/3 share in favour of defendant No.1. Under these circumstances, it was pleaded that the plaintiffs have no right to seek eviction of 1/3 part of the house of the joint ownership of late Mahendra Singhal. With these pleas, the petitioner-defendant denied the claim of the plaintiffs. 6. In the counter claim, defendant No.1/petitioner sought a decree for execution of sale deed in his favour to the extent of 1/3 share of the entire house in question based upon consent letter dated 20.7.2009 and not to interfere in his possession on the said 1/3 portion of the house. 7. On 7.7.2014, the trial Court had proceeded ex parte against defendant No.2. 7. On 7.7.2014, the trial Court had proceeded ex parte against defendant No.2. Thereafter subsequent date of hearings were fixed on 17.7.2014, 1.8.2014, 19.8.2014, 15.10.2014, 18.11.2014, 9.12.2014, 16.1.2015. On all these dates, the defendant No.2 did not appear before the trial Court and no application under Order 9 rule 7 of CPC for setting aside the ex parte decree was filed. Besides, no written statement was filed by the defendant No.2 on or before 7.7.2014, the date fixed for hearing, and the trial Court had proceeded ex parte against her. As late as on 5.2.2015, defendant No.2 filed an application under Order 1 rule 10 of CPC with Vakalatnama of Advocate seeking her transposition as plaintiff. The petitioner No.1 filed reply to the application opposing transposition. 8. Trial Court considering the fact that defendant No.2 is also the co-owner of the suit property along with plaintiffs No.1 and 2 and there being common interest involved, permitted her to transpose as plaintiff No.3. 9. Learned counsel for the petitioner-defendant No.1 has raised contentions -- 9.1 That defendant No.2 having been proceeded ex parte on 7.7.2014 can not be permitted to participate in the proceeding before the trial Court without seeking setting aside the proceeding of ex parte against her on 7.7.2014. In any case, defendant No.2 having not filed written statement on the date of hearing fixed for the same on different occasions and thereafter there were more than ten hearings on which she has not appeared, the defendant No.2 can not be permitted to file an application for transposition as plaintiff. 9.2 That the permission granted to the defendant No.2 for transposition as plaintiff No.3 under these circumstances, in fact and in effect tantamount to setting aside the ex parte order dated 7.7.2014 and setting the clock back to the stage the defendant No.2 was required to file written-statement in the absence of application for setting aside ex parte order dated 7.7.2014. 9.3 That late Mahendra Singhal husband of defendant No.2 was arrayed as defendant along with the present petition in Civil Suit No.122-A/2009. Mahendra Singhal had filed written statement and while opposing the suit denied any right, claim or interest of the plaintiff in the suit property and justified the payment of rent to him by the petitioner. 9.3 That late Mahendra Singhal husband of defendant No.2 was arrayed as defendant along with the present petition in Civil Suit No.122-A/2009. Mahendra Singhal had filed written statement and while opposing the suit denied any right, claim or interest of the plaintiff in the suit property and justified the payment of rent to him by the petitioner. Therefore, the present defendant No.2, widow of late Mahendra Singhal can not be permitted to take a different stand, than her husband, seeking transposition as plaintiff No.3. 9.4 That late Mahendra Singhal had executed a consent letter dated 20.7.2009 parting away his 1/3 share in the suit property in his favour upon receipt of the consideration paid on different dates mentioned in para 2 of the counter claim. As such, there is conflict of interest between the plaintiffs and present defendant No.2, widow of late Mahendra Singhal. 9.5 That there is no cause of action for defendant No.2 to seek transposition by filing application dated 5.2.2015 after having been proceeded ex parte as far back as on 7.5.2014. Even otherwise, on merits as well, in as much as neither she has claimed any bona fide need of the premises nor can she claim arrears of rent, which has already been paid to her husband, instead the need of son of plaintiff No.1 is pleaded in para 6 of the plaint, therefore, there is no occasion for her to seek transposition. Besides, one of the co-owners can always maintain a suit for eviction. 9.6 That as on the first date of hearing, she has not submitted written-statement and was proceeded ex parte on 7.7.2014, therefore, after eleven dates of hearing, now her application for transposition to avail the opportunity to file her pleadings as newly added plaintiff No.3 cannot be permitted. In fact, what has not been done directly is sought to be done indirectly. 9.7 Learned counsel bolstered his aforesaid submission based on facts and law with the support of judgments of the Hon’ble Supreme Court rendered in Sangram Singh v. Election Tribunal [1955 AIR (SC) 425], Arjun Singh v. Mohindra Kumar [ AIR 1964 SC 993 ], John Boisogomoff v. Manmatha Nath [AIR 1931 Cal. 76], and Jethiben v. Maniben [1983 AIR (Guj) 194]. 10. 76], and Jethiben v. Maniben [1983 AIR (Guj) 194]. 10. Per contra, learned counsel for the respondent No.3/defendant No.2 contends that true it is that though the defendant No.2 was proceeded ex parte on 7.7.2014 and did not file written statement and also not filed application for setting aside ex parte order dated 7.7.2014, still she is entitled to participate in the proceeding by filing application under Order 1 rule 10(2) of CPC as per the dictum of the Hon’ble Supreme Court in the case of Sangram Singh v. Election Tribunal [1955 AIR (SC) 425]. Learned counsel contends that in the aforesaid judgment, Hon’ble Supreme Court has settled the aforesaid proposition in the context of Order 9 rule 6 and Order 9 rule 7 of CPC. Further, as the interest of plaintiffs and that of defendant No.2 being common by virtue of being co-owner of the suit property, no illegality has been committed by the trial court allowing her transposition as plaintiff No.3, relying on the judgment in R.S. Maddanappa v. Chandramma [ AIR 1965 SC 1812 ], neither there is any illegality or jurisdictional error warranting interference under Article 227 of the Constitution of India. 11. Heard counsel for the parties. 12. Principle of law governing the entitlement of the defendant proceeded ex parte in a suit to participate in the proceeding without seeking setting aside of ex parte proceeding in the context of Order 9 rule 7 CPC, by now is well settled by the Hon’ble Supreme Court and followed in various subsequent judgments of the Supreme Court and various High Courts. In the case of Sangram Singh (supra), Hon’ble Supreme Court in para 33 has held as under: “33. We have seen that if the defendant does not appear at the first hearing, the Court can proceed ‘ex parte’, which means that it can proceed without a written statement; and O.9.R.7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written-statement should have been put in, the consequences entailed by O.8 R.10 must be suffered. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written-statement should have been put in, the consequences entailed by O.8 R.10 must be suffered. What those consequences should be in a given case is for the Court, in the exercise of its judicial discretion, to determine. No hard and fast rule can be laid down. In some cases, an order awarding costs to the plaintiff would meet the ends of justice: an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic action.” Therefore, it cannot be said that the defendant No.2 cannot participate in the proceeding without setting aside the order dated 7.7.2014 proceeding ex parte but her right to participate shall not bring her back to the stage when she was proceeded ex parte and nature and extent of the right of participation was required to be determined by exercise of judicial discretion in accordance with law by the trial Court. It appears that the trial Court has not attached due importance to the aforesaid nature and scope of its jurisdiction while allowing the application for transposition vide Order 1 rule 10(2) of CPC. 13. The trial Court was required to address on necessity or requirement for transposition of defendant No.2 as plaintiff No.3 bearing in mind the facts and circumstances of the case, that has not been done. Judicial discretion under Order 1 rule 10(2) of CPC is to be exercised with care and caution and according to reason and fair play to do complete justice between the parties and not on whims and caprice or on mere asking. 14. The ejectment suit is filed at the instance of plaintiffs No.1 and 2 on the ground of arrears of rent and bona fide requirement of son of the plaintiff No.1. In the earlier Suit No.122-A/2009 plaintiffs had arrayed husband of the defendant No.2 as defendant No.2 along with the present petitioner. He had denied the claim of the entitlement of rent of plaintiffs or any interest in the suit property. In the earlier Suit No.122-A/2009 plaintiffs had arrayed husband of the defendant No.2 as defendant No.2 along with the present petitioner. He had denied the claim of the entitlement of rent of plaintiffs or any interest in the suit property. In fact, in appellate proceeding there were apportionment of rent amongst three brothers, as such defendant No.2 had no complaint as regards any arrears of rent at any point of time. No bona fide need of defendant No.2 is projected in the plaint, as such, there is no cause of action arose in favour of defendant No.2 for transposition in the suit. 15. It is also settled law that the suit for eviction can be filed by some of the co-owners without joining the other co-owners, as such there is no requirement of the defendant No.2 for transposition as plaintiff No.3 and it cannot be said that the suit shall fail if defendant No.2 is not transposed as plaintiff No.3. 16. Admittedly, defendant No.2 has not filed written statement on the first date of hearing, therefore, now she cannot be permitted to file the pleadings. Through transposition no permission can be granted to file pleadings as what has not been done directly could not be done indirectly and she can only be permitted from the stage the suit so far proceeded, otherwise if the defendant No.2 is permitted to file her pleadings as plaintiff, the same shall run contrary to the principle of law laid down by the Supreme Court in Sangram Singh (supra). That apart, the interest of plaintiffs No.1 and 2 cannot be said to be similar with that of defendant No.2, as the husband of defendant No.2 has not only denied the right of the plaintiffs to recover the rent in the earlier suit but also has given a consent letter dated 20.7.1979 in favour of the petitioner parting away with his 1/3 share in the house upon receipt of consideration as stated in the counter-claim. Under these circumstances, the possibility of changing the character of the suit (title suit) cannot be ruled out. Further, a valuable right accrued to the present petitioner-defendant No.1 against the defendant No.2 in the absence of written statement filed by her, shall be affected if defendant No.2 is allowed to be transposed as plaintiff No.3. (AIR 1921 All. 184). Under these circumstances, the possibility of changing the character of the suit (title suit) cannot be ruled out. Further, a valuable right accrued to the present petitioner-defendant No.1 against the defendant No.2 in the absence of written statement filed by her, shall be affected if defendant No.2 is allowed to be transposed as plaintiff No.3. (AIR 1921 All. 184). That apart, plaintiffs have maintained blissful silence and defendant No.2 in the application filed belatedly, has also not disclosed the reason or justification for transposition. 17. In view of the foregoing reasons, this Court is of the view that there appears to be apparent jurisdictional error in exercise of power under Order 1 rule 10 of CPC resulted into patent illegality warranting interference under Article 227 of the constitution of India. 18. Consequently, the impugned order is set aside. However, the defendant No.2/respondent No.3 will be permitted to participate in the suit from the stage the suit so far has proceeded. No order as to costs.