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Madhya Pradesh High Court · body

2019 DIGILAW 569 (MP)

Kamlabai (Smt. ) v. Rajendra Kumar

2019-08-06

G.S.AHLUWALIA

body2019
JUDGMENT 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 29.11.2017 passed by Third Civil Judge Class-I, Guna in Civil Suit No.9A/2011 by which the application filed by the petitioner under Order 1 rule 10 of CPC has been rejected. 2. The necessary facts for the disposal of the present petition in short are that the respondent No.1 Rajendra Kumar has filed a suit for eviction on the ground that one Smt. Asha Lata Vijaywargiya was the owner and in possession of the property in dispute which was purchased by the respondent No.1 Rajendra Kumar by registered sale deed dated 9.6.1980. Shri Shrikishan Rathore who was the father of respondents No. 2 to 6 and the husband of the petitioner was the tenant. After the death of Shri Shrikishan Rathore, except the defendant No. 3 namely Jagdish Rathore, all other defendants are in possession of the shop in the capacity of the tenant and they are carrying on the business in the name and style of “Jagdish Electronics”. It appears that the petitioner filed an application under Order 1 rule 10 of CPC on the ground that being the widow of Shri Shrikishan Rathore, she is also a necessary party. However, the said application has been rejected by the trial Court by the impugned order. It appears that earlier the respondents No.2 to 6 had filed an application for impleading the petitioner as the defendants and the said application was rejected by the trial Court by order dated 8.6.2014. While rejecting the application filed by the petitioner, it was mentioned by the trial Court that since the order dated 8.6.2014 has attained finality, therefore, the present application filed by the petitioner is not maintainable. 3. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that being the widow of Shri Shrikishan Rathore, the original tenant, the petitioner is a necessary party and not a formal party. 4. 3. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that being the widow of Shri Shrikishan Rathore, the original tenant, the petitioner is a necessary party and not a formal party. 4. Per contra, it is submitted by the counsel for the respondent No. 1 and that since the petitioner is not doing any business and is not in possession of the shop in dispute in the capacity of the tenant but in fact the defendants No. 1 to 5/respondents No. 2 to 6 are in possession, therefore, they were made party and petitioner is not a necessary party. 5. Heard the learned counsel for the parties. 6. Undisputedly, the petitioner is the widow of Shri Shrikishan Rathore, the original tenant. It is the case of the respondent No. 1 himself that after the death of Shri Shrikishan Rathore, his legal representatives are in possession of the shop as a tenant and they are carrying on their business. Thus in order to avoid any further complication, this Court is of the considered opinion that being the widow of Shri Shrikishan Rathore, original tenant Shri Shrikishan Rathore, the petitioner is also a necessary party. 7. The Supreme Court in the case of Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup & Anr. reported in (1990) 4 SCC 700 has held as under:- “4. Mr. Lalit, counsel for the appellants argued that the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decisions of this Court in Kanji Manji v. Trustees of the port of Bombay and H. C. Pandey v. G. C. Paul. Both the cases relate to the validity of the notice issued to one of the joint tenants. It was held that the notice issued to one of them would be valid. We do not think that the principle stated in those cases on the facts obtained are relevant to the present case. There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside. There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside. It is not sufficient as the Courts below have said that the decree was not binding upon the respondent. That decree cannot be kept alive against two other tenants and possession of the premises could be exclusively given to the respondent. The respondent cannot be put into exclusive possession of the premises since his mother and brother are also equally entitled to. It seems to us, therefore, the ex parte decree for eviction should be set aside and the petitioner should be impleaded as a party to that suit and it should proceed on merits.” 8. The Co-ordinate Bench of this Court in the case of Pushpa Agrawal (Smt.) v. Omprakash Agrawal reported in 2012 (1) MPWN 113 has held as under : “5. After hearing counsel for both the parties at length and keeping in view the fact that before filing of the suit itself Madanlal Bansal had died and petitioner is also one of the legal representative of deceased Madanlal Bansal, therefore, even if, petitioner is not in possession of the suit property, then too, the petitioner was the proper party. In view of this, petition filed by the petitioner is allowed and the impugned order passed by learned Court below is set-aside and respondent No. 1 is directed to implead the petitioner as defendant in the array of defendants. Petitioner is permitted to file the written statement and if necessary cross-examine the witnesses examined by the respondent No. 1 only on the ground that petitioner has been impleaded as party. It is made clear that petitioner is not allowed to delay the process in any manner. Learned Court below is directed to conclude the trial within a period of three months.” 9. It is made clear that petitioner is not allowed to delay the process in any manner. Learned Court below is directed to conclude the trial within a period of three months.” 9. So far as the question of res judicata is concerned, it is true that the principle of res judicata applies to the interlocutory orders also but since the earlier application was not filed by the petitioner but it was filed by the respondents No. 2 to 6, therefore, it cannot be said that the application filed by the petitioner was hit by the provisions of section 11 of CPC. 10. Accordingly, the order dated 29.11.2017 passed by Third Civil Judge Class-I, Guna in Civil Suit No.9A/2011 is hereby set aside. The application filed by the petitioner under Order 1 rule 10 of CPC is hereby allowed. The petitioner is directed to be impleaded as defendant. The petitioner is granted liberty to file her separate written statement and she is also granted liberty to cross-examine the plaintiff and his witnesses, however the petitioner shall not take more than 90 days for filing the written statement and no adjournment shall be granted to the petitioner to cross-examine the witnesses for the simple reason that only the sons of the petitioner are the defendants and, therefore, the defendants cannot be allowed to adopt any dilatory tactic for delaying the disposal of the suit. 11. Accordingly, the petition is allowed.