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2020 DIGILAW 256 (UTT)

Rewa Pande v. Ramesh

2020-06-23

LOK PAL SINGH

body2020
JUDGMENT Lok Pal Singh, J. - Instant civil revision, preferred under Section 115 of CPC, is directed against the order dated 06.02.2019 passed by Civil Judge (Senior Division), Almora in O.S. No.4 of 2015 Mrs. Rewa Pande vs. Ramesh, whereby the application moved by the revisionist/plaintiff under Order I Rule 10 read with Section 151 of CPC for impleading Himadri Pande, has been dismissed. 2. Factual matrix of the case is that the revisionist/plaintiff being the co-owner of the suit property situated at Mohalla Malla Kasoon, Almora, filed the suit being O.S. No.4 of 2015 against the respondent/defendant in the court of Civil Judge (S.D.) Almora for a decree of mandatory and permanent injunction as well as mesne profit stating therein that the suit property was given to the defendant on license with the condition that whenever required the license will be terminated orally by plaintiff's husband. On 05.01.2014, the license was orally revoked but despite that the defendant has not vacated the licensed portion of the suit property. Respondent/defendant contested the suit and filed his written statement. On the basis of pleadings of parties, trial court framed necessary issues in the suit. Meanwhile, the revisionist/plaintiff filed an application under Order 1 Rule 10 read with Section 151 CPC for impleading Mr. Himadri Pande. Respondent/defendant filed his reply and objections to the application. After hearing the learned counsel for the parties, the trial court, vide order dated 06.02.2019, dismissed the impleadment application. The revisionist/plaintiff preferred a review application against the impugned order dated 06.02.2019, which also got dismissed vide order dated 26.02.2019. 3. I have heard learned counsel for the parties and perused the material available on file. 4. Learned counsel for the revisionist would submit that the view taken by the trial court in rejecting the impleadment application is patently erroneous as the revisionist/plaintiff is the dominus litis and he has a right to choose his opponents. 5. From the perusal of the impleadment application, it transpires that the revisionist/plaintiff has sought impleadment of Mr. Himadri Pande S/o Late Sri Anil Kumar Pande, as co-defendant in the suit, in view of the fact that the respondent/defendant has taken mutually destructive pleas in his written statement that he was inducted in possession of the suit property by Mr. 5. From the perusal of the impleadment application, it transpires that the revisionist/plaintiff has sought impleadment of Mr. Himadri Pande S/o Late Sri Anil Kumar Pande, as co-defendant in the suit, in view of the fact that the respondent/defendant has taken mutually destructive pleas in his written statement that he was inducted in possession of the suit property by Mr. Anil Kumar Pande and his right of ownership of the suit property has matured by virtue of adverse possession over the suit property. It is stated in the application that Mr. Himadari Pande is the only surviving legal heir of Late Sri Anil Kumar Pande, and therefore, he is a necessary and proper party to the suit. 6. The general rule regarding impleading of parties is that the person, who is having a right or an interest in the suit property, can be impleaded as a party and it is for the plaintiff as the dominus litis to choose the person against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief. This proposition of law has been observed by the Hon'ble Supreme Court in the following paragraphs in the case of Baluram Vs. P. Chellathangam and others, 2015 13 SCC 579 . "13. In Mumbai International Airport, 2010 7 SCC 417 this Court observed: 13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10 (2) of the Code of Civil Procedure ('the Code', for short), which provides for impleadment of proper or necessary parties. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10 (2) of the Code of Civil Procedure ('the Code', for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: '10.(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court be may necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.' 14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a part: (a) any person who ought to have been joined as plaintiff or defendnant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or property party. 15. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/ interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance." 7. The Hon'ble Apex Court in Kanaklata Das & Ors. Vs. Naba Kumar Das & Ors., 2018 2 SCC 352 , has held as under:- "11. There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question which arose in this appeal. These principles are mentioned infra: 11.1. First, in an eviction suit filed by the plaintiff (landlord) against the defendant (tenant) under the State Rent Act, the landlord and tenant are the only necessary parties. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant. 11.2. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff landlord has sought defendant tenant's eviction under the Rent Act exists. When these two things are proved, the eviction suit succeeds. 11.3. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See Ranbir Singh v. Asharfi Lal, 1995 6 SCC 580 ) . 11.4. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit.(See Ruma Chakraborty v. Sudha Rani Banerjee, 2005 8 SCC 140 ) . 11.5. Fifth, 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. (See Udit Narain Singh Malpaharia v. Board of Revenue, 1963 AIR(SC) 786). 11.6. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. (See Kasthuri Radhakrishnan v. M. Chinniyan, 2016 3 SCC 296 ) . 8. In the present case, it is the admitted case of the respondent/defendant, in the written statement, that he was inducted in possession of the suit property by Mr. (See Kasthuri Radhakrishnan v. M. Chinniyan, 2016 3 SCC 296 ) . 8. In the present case, it is the admitted case of the respondent/defendant, in the written statement, that he was inducted in possession of the suit property by Mr. Anil Kumar Pande, who was the co-owner of the suit property. Revisionist/plaintiff has filed the suit against the respondent/defendant for a decree of mandatory and permanent injunction, directing the defendant to handover clean and peaceful possession of the suit property and not to create any third party interest, as also for relief of mesne profits. Late Mr. Anil Kumar Pande has passed away and Mr. Himadri Pande is the only surviving legal heir of the Mr. Anil Kumar Pande. The revisionist/plaintiff has sought impleadment of Mr. Himadri Pande, as co-defendant in the suit. As per the ratio of law laid down in aforesaid judgments, the plaintiff in a suit, being the dominus litis, has a right choose the person against whom he wishes to litigate. In my considered view, Mr. Himadri Pande is a proper party to the suit whose presence is necessary for a complete and final decision on the question involved in the proceeding. That being the position, the trial court has committed illegality in dismissing the impleadment application of the revisionist/plaintiff. 9. As an upshot of the above discussion, instant civil revision stands allowed. Impugned order dated 06.02.2019 is hereby set-aside. Impleadment application filed by the revisionist/plaintiff is allowed. Revisionist/plaintiff is permitted to implead Mr. Himadri Pande as defendant no.2 in the suit. 10. No order as to costs.