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2017 DIGILAW 1860 (ALL)

VIJAY PRAKASH CHAURASIA v. OM PRAKASH CHAURASIA

2017-08-10

SURYA PRAKASH KESARWANI

body2017
JUDGMENT : Hon'ble Surya Prakash Kesarwani, J. 1. Heard Sri D.P. Tripathi, holding brief of Sri K.K. Tripathi, learned counsel for the defendants-revisionists. 2. This revision has been filed praying to set aside the order dated 13.7.2017 in Case No. 1568 of 2013 (Om Prakash Chaurasia vs. Vijay Prakash Chaurasia), passed by the 1st Additional Judge Small Cause Court, Kanpur Nagar, whereby the impleadment application being paper No. 70-C under Order I Rule 10(2) C.P.C. filed by the defendants-revisionists for impleadment of Bank of India through Branch Manager, and M/s. AVS Rotopac Pvt. Ltd. Kanpur as defendant has been rejected on the ground that neither any relief has been sought by the plaintiff against the aforesaid persons nor they are necessary or proper party. 3. Briefly stated facts of the present case are that the plaintiff-respondent filed a case No. 1568 of 2014 on the ground that he is the sole owner of the disputed property which is being occupied by the defendants-revisionists as licensee and despite termination of the licence the disputed property is not being vacated. Therefore, a mandatory injunction be granted in favour of the plaintiff and against the defendants to vacate the whole disputed house No. 133/276 Transport Nagar, Kanpur and damages be also awarded. The defendant no. 2 is the son of defendant no. 1 who is the real brother of the plaintiff. The case set up by the defendants-revisionists is that the disputed property is the joint family property of which he is the co-owner and not licensee. 4. The defendants-revisionist have earlier filed an application under Order VII Rule 11 C.P.C. on the ground that the suit is barred by SARFAESI Act inasmuch as the disputed property was mortgaged with the bank for taking loan and certain proceedings have been initiated by the bank in D.R.T. The said application was rejected which was challenged by the defendants-revisionists in Civil Revision Defective No. 20 of 2017, which was dismissed by order dated 10.2.2017 observing as under: "This Court finds that in the present case there is no dispute inter se the bank and the borrower and no relief has been sought against the Bank. The cause of action disclosed in the plaint is that the plaintiff is the owner of the premises and the defendant its licencee who, despite termination of licence, did not vacate the premises. The cause of action disclosed in the plaint is that the plaintiff is the owner of the premises and the defendant its licencee who, despite termination of licence, did not vacate the premises. On the basis of the plaint averments, the suit cannot be said to be barred by the provisions of SARFAESI Act and it also cannot be said that the plaint does not disclose cause of action, therefore, the court below was legally justified in rejecting the application for dismissing the plaint under Order 7 Rule 11 CPC, inasmuch as, it is well settled in law that at the time of considering the prayer as to whether plaint is liable to be rejected under Order 7, Rule 11 CPC only the plaint averments are to be seen (See P.V. Guru Raj Reddy vs. P. Neeradha Reddy, (2015) 8 SCC 331 and C. Natraja vs. Ashim Bai, (2007) 14 SCC 183 ). Whether the suit is otherwise barred or not by law, if not ex facie apparent from the plaint averments, cannot be made basis for rejection of plaint under Order 7, Rule 11 CPC, but can always be raised and decided as an issue at an appropriate stage (See Vishnu Dutt Sharma vs. Daya Sapra, (2009) 13 SCC 729 )." 5. Thereafter the defendants-revisionists filed an application under Order I Rule 10 C.P.C. praying for impleadment of the aforesaid Bank of India and another which has been rejected by the impugned order dated 13.7.2017. Aggrieved with this order the defendants-revisionist have filed the present revision. 6. There is no dispute inter-se the bank and the borrower and no relief has been sought against the bank in the aforesaid case no. 1568 of 2013. The cause of action disclosed in the plaint is that plaintiff-respondent is the owner of the premises and the defendant is his licensee, who, despite termination of the licence did not vacate the premises. On these facts, it can not be said that the aforesaid bank or firm is either a necessary or a proper party and deserves to be impleaded. 7. In the case of Laxman Prasad Kanchan vs. Kranti Kumar Kanchan and Others, 1992 (2) ARC 293 the Court held as under (paragraphs 4, 5, 6 and 7): "4. On these facts, it can not be said that the aforesaid bank or firm is either a necessary or a proper party and deserves to be impleaded. 7. In the case of Laxman Prasad Kanchan vs. Kranti Kumar Kanchan and Others, 1992 (2) ARC 293 the Court held as under (paragraphs 4, 5, 6 and 7): "4. Rule 10 (2) of Order I of the Code permits the Court to order the name of any of the following two categories persons to be added as party to a suit (a) person "who ought to have been Joined" or (b) person "whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate and settle all the questions involved in the suit." And the name of none else can be ordered to be added to the suit, either as plaintiff or as defendant. 5. Person who ought to be Joined as party to a suit is the person whose presence is indispensable for granting an effective decree. Such person is a necessary party. Person whose presence may enable the Court to effectually and completely decide and dispose of all the questions involved in the suit is the person "whose presence before the Court may be necessary" and such a person is a proper party. 6. Person having direct interest in the subject-matter of the suit alone can be necessary party or a proper party. Indeed, Court has no jurisdiction to direct the name of any person to be added to the suit unless it is established that such a person ought to have been joined, or his presence is necessary for effectual and complete adjudication and settlement of all the questions involved in the suit. To be precise, Court is duty bound to investigate and find out as to whether the person, whose name is sought to be added as a party to the suit, is a proper or necessary party before ordering his impleadment. To be precise, Court is duty bound to investigate and find out as to whether the person, whose name is sought to be added as a party to the suit, is a proper or necessary party before ordering his impleadment. 7.In a suit where the relief sought is a decree for ejectment of a tenant and the foundation for the relief is landlord tenant relationship between the plaintiff and defendant a person claiming himself to be a co-sharer in the property in question is neither necessary nor a proper party inasmuch as in such a suit the title of ownership of the property is not the subject-matter of the suit in which the co-sharer may have an interest. Likewise, for passing an effective decree of ejectment against the tenant at the behest of a co-sharer-plaintiff, if the relationship of landlord and tenant between him and the defendant is pleaded and proceed, the presence of the other co-sharer is not a condition precedent." 8. In the case of Narendra Nath Srivastava vs. Prescribed Authority, Lucknow and Others, 1992 (2) ARC 236 the Court held as under (paragraphs 7 and 8): "7. The principles governing impleadment of a party are embodied in Order I, Rule 10 C.P.C. It is indicated therein that a party may be either necessary party or proper party. A person, who ought to have been joined as party, is necessary party. This is so, because no effective decision can be given without his presence. A person is a proper party if his presence before the Court is necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit. The impleadment of a party is a matter of judicial discretion of the Court which ought to be exercised in the light of the facts and circumstances of the particular case. All this has been high-lighted in Udit Narain Singh Malpahaira vs. Additional Member of Board of Revenue, AIR 1963 SC 786 and Razia Begum vs. Anwari Begum, AIR 1958 SC 886 ." 8. Normally in a suit by a landlord against the tenant for arrears of rent and ejectment, a third party raising question of title is not a necessary party. Normally in a suit by a landlord against the tenant for arrears of rent and ejectment, a third party raising question of title is not a necessary party. This is the effect of the decisions in Pravat Kumar Misra vs. Prafulla Chandra Misra, AIR 1977 Orissa 183 and Shafiq Ahmad vs. Vth Additional District Judge, Varanasi and Others, 1988 ALJ 612. But there may be cases where it may be proper to allow the application of a third party for impleadment. This has been recognised in Shafiq Ahmad's case wherein it has been observed that the facts of the case in AIR 1987 Bom 276 , were entirely different inasmuch as therein matter of title was to be gone into." 9. The aforesaid view is also supported by the law laid down by Hon'ble Supreme Court in the case of Ramesh Hiranand Kundanmal vs. Municipal Corporation of Greater Bombay and Others, 1992 (2) ARC 57 SC. 10. Thus, Sub-rule (2) of Rule 10 of Order I C.P.C. gives wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order I, Rule 10 which provides that only a necessary or a proper party may be added. 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. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. 11. There is no dispute inter se the bank and the borrower. No relief has been sought against the Bank. The cause of action disclosed in the plaint is that the plaintiff is the owner of the disputed premises and the defendant is its lisencee who has not vacated it despite termination of lisence. As per plaint, relief of mandatory injunction has been sought against the defendants alleging them to be lisencee of the disputed property. The cause of action disclosed in the plaint is that the plaintiff is the owner of the disputed premises and the defendant is its lisencee who has not vacated it despite termination of lisence. As per plaint, relief of mandatory injunction has been sought against the defendants alleging them to be lisencee of the disputed property. Thus the Bank and the borrower both are neither necessary nor proper party in the case. Therefore, the findings recorded by the court below to reject the impleadment application do not suffer from any infirmity. 12. In view of the aforesaid, I do not find any merit in this revision. Consequently, the revision fails and is, therefore, dismissed.