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2019 DIGILAW 827 (ALL)

Deepak Kumar v. Upendra Kumar

2019-04-02

MANOJ KUMAR GUPTA

body2019
JUDGMENT : MANOJ KUMAR GUPTA, J. 1. The instant petition is directed against the order dated 3.11.2018 passed by Additional District Judge, Shamli at Kairana in SCC Suit No.35 of 2012, whereby application filed by third parties (respondents no.2 to 5) seeking impleadment in the suit as defendants has been allowed. 2. The brief facts necessary for decision of the instant petition are as follows:- SCC Suit No.35 of 2012 was instituted by the plaintiff-petitioner (for short 'the plaintiff') against the defendant-respondent no.1 (for short 'the defendant') for recovery of arrears of rent and for eviction from a shop in his tenancy. It was specifically asserted in paragraph 1 of the plaint that the plaintiff is owner and landlord of the tenanted premises and it was let out to the defendant in pursuance of rent agreement dated 20.3.2008. 3. The defendant filed a written statement and admitted that he took shop on rent from the plaintiff but stated that the same was on the assurance extended by him that he alongwith Pradeep Kumar and Prabhat Kumar sons of Surendra Swarup are also landlords of the tenanted premises. He also admitted paying rent to the plaintiff and some times to Prabhat Kumar. 4. During pendency of the suit, the third parties applied for their impleadment as defendants in the suit. They alleged that they are exclusive owner and landlord of the shop on basis of registered sale deed dated 5.11.2012 obtained from Prabhat Kumar. They also specifically asserted in the impleadment application that in fact the owner of the disputed shop was one Surendra Prakash. After his death, the property devolved upon his wife Vimlesh and son Prabhat Kumar. Vimlesh also died and thereafter Prabhat Kumar, who was exclusive owner, transferred the shop in their favour. 5. The trial court has allowed the impleadment application observing that although it has no jurisdiction to decide the question of title, as the suit is of the nature of small causes, but since certain rent receipts have been filed on record evidencing payment of rent to Prabhat Kumar, therefore, interest of third parties seems to be involved in the litigation. 6. Counsel for the petitioner submitted that once the trial court has come to the conclusion that it has no power to decide the question of title, it erred in allowing the impleadment application. 6. Counsel for the petitioner submitted that once the trial court has come to the conclusion that it has no power to decide the question of title, it erred in allowing the impleadment application. It is urged that merely because the third parties claimed that their interest is involved in the suit property, they could not be impleaded unless their presence is necessary for deciding the real controversy between the parties. 7. On the other hand, learned counsel for the respondent third parties submitted that in the past, there had been litigation between the predecessor-in-interest of the plaintiff and predecessor-in-interest of Prabhat Kumar in which it was held that the predecessor-in-interest of Prabhat Kumar had exclusive title over the property in dispute. It is urged that having regard to the judgments rendered in those proceedings, the third parties have been rightly impleaded. 8. It is evident from the pleadings of the parties that the defendant-tenant, though claimed that he was told by the plaintiff that alongwith him Pradeep Kumar and Prabhat Kumar are also owner and landlord of the shop but he admitted having taken shop on rent from the plaintiff. 9. The third parties claimed that plaintiff has no title to the suit property nor is landlord nor has any right to maintain the suit. It is their specific case that on basis of previous litigation, Prabhat Kumar was exclusive owner of the suit property and accordingly, on basis of sale deed obtained from him, they claim to be sole owner and landlord of the shop in dispute. They don't admit the plaintiff to be co-owner and co-landlord. In case the third parties are permitted to be brought on record, then the Judge Small Causes would be called upon to decide title dispute between the plaintiff and third parties, which would be wholly beyond its jurisdiction. 10. In such view of the matter, this Court is of the considered opinion that the impugned order suffers from manifest error of law. The trial court has acted with material irregularity in exercise of its jurisdiction in permitting impleadment of third parties claiming title hostile to the plaintiff, in a suit filed before Judge Small Causes Court, based on relationship of landlord and tenant. Accordingly, the impugned order is set aside. The petition is allowed. 11. The trial court has acted with material irregularity in exercise of its jurisdiction in permitting impleadment of third parties claiming title hostile to the plaintiff, in a suit filed before Judge Small Causes Court, based on relationship of landlord and tenant. Accordingly, the impugned order is set aside. The petition is allowed. 11. However, it is left open to the third parties to take such other legal proceedings to protect their interest, as may be advised.