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2017 DIGILAW 1192 (MP)

Hukumchand Garg v. Om Prakash Garg

2017-11-21

VIVEK AGARWAL

body2017
ORDER 1. Petitioner-plaintiff has filed this writ petition under Article 227 of the Constitution of India being aggrieved by order dated 7.10.2016 passed in Civil Suit No.603048/2016 by the Court of Second Civil Judge Class-II, Sheopur, rejecting an application under the provisions of Order 1 rule 10 of the Code of Civil Procedure (for short “CPC”) filed by the plaintiff. 2. Through the aforesaid application under Order 1 rule 10 of CPC, the plaintiff, who has filed a suit against the defendants for claiming vacant possession and arrears of rent, had prayed for impleading Pushpa Bai as a defendant on the ground that issue No.4 has been framed to the effect that whether the plaintiff is entitled to get a declaration in respect of the sale deed made by Pusha Bai in favour of defendant No.2 to be null and void. It is the case of the plaintiff that the parties to the document should get an opportunity of hearing and in their absence, the document should not be declared as illegal, therefore, Pusha Bai is a necessary party. 3. Learned counsel for the petitioner submits that the impugned order is contrary to the law and Pushpa Bai is a necessary party for determination of the real matter in dispute and this fact has been overlooked by the trial Court while dismissing the application under Order 1 rule 10 of CPC. Petitioner has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Kasturi v. Iyyamperumal and others, as reported in (2005)6 SCC 733 , wherein it has been held that the necessary parties are those in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person. 4. 4. On the other hand, the learned counsel for the respondents has drawn attention of this Court to the law laid down in the case of Tribhuvanshankar v. Amrutlal, as reported in (2014)2 SCC 788 , wherein in para 28, while referring to the decision rendered by the Hon’ble Supreme Court in the case of Ranbir Singh v. Ashrafi Lal, as reported in (1995)6 SCC 580 , the Hon’ble Supreme Court has held that in a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of landlord and tenant, the scope of the suit is very much limited, in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title, but fails to establish a privity of contract of tenancy. In a suit for eviction based on such relationship, the Court has only to decide whether the defendant is tenant of the plaintiff or not, though the question of title, if disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. 5. In fact, in the case of Dilip Mahadik (Dr.) v. Ramesh Chandra Mahadik, as reported in 2012(III) MPWN 31 , it has been held that where there is a tenancy agreement between the plaintiff and tenant, then there is clear attornment in favour of the plaintiff and thus merely possibility of another view is not a ground for interference under Article 227 of the Constitution of India. 6. In the present case, the suit has been filed seeking eviction and recovery of arrears of rent. Therefore, it is apparent from the plaint statements that there is a clear averment that defendant No.1 is a tenant of the plaintiff in a shop constructed in the premises of Sinhal Dharmshala @ Rs.2,000/- per month. It has also come on record that defendant No.1 is nephew of the plaintiff and defendant No.2 is wife of defendant No.1. It has also come on record that the plaintiff is a legatee of the Will left by Late Shri Nandlalji Sinhal. It has also come on record that defendant No.1 is nephew of the plaintiff and defendant No.2 is wife of defendant No.1. It has also come on record that the plaintiff is a legatee of the Will left by Late Shri Nandlalji Sinhal. There are averments in the plaint itself that Pushpa Bai is also one of the beneficiaries (legatee) of the Will of Late Shri Nandlalji Sinhal and she has no right to sell the property without the consent of the other legatee. This issue is identical to that which has been discussed in the case of Dr. Dilip Mahadik (supra) and, therefore, the ratio laid down in the case of Dr. Dilip Mahadik (supra), will apply in full force to the present facts and circumstances of the case and, therefore, this Court is of the opinion that the trial Court has not erred in rejecting the application under Order 1 rule 10 of CPC inasmuch as in a suit for eviction of a tenant and recovery of arrears of rent, the petitioner-plaintiff is required to demonstrate relationship of the landlord and tenant and as has been held in the cases of Ranbir Singh and Tribhuvanshankar (supra), the scope of the suit is very much limited, in which a question of title cannot be gone into. Thus, the law laid down in the case of Kasturi (supra) is distinguishable on facts. 7. Thus, in the opinion of this Court, in view of the law laid down in the case of Tribhuvanshankar and that of Dr. Dilip Mahadik (supra), the trial Court has rightly dismissed the application under Order 1 rule 10 of CPC inasmuch as in the present suit, the scope of venturing into the aspect of the title is very narrow and limited and, therefore, there is no illegality and arbitrariness in the impugned order calling for any interference. Thus, the petition fails and is hereby dismissed. Gaurav Mishra for petitioner; D.D. Bansal for respondents.