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2021 DIGILAW 685 (RAJ)

Mohd. Aatif v. Valeed Ahmed

2021-03-24

PUSHPENDRA SINGH BHATI

body2021
JUDGMENT : PUSHPENDRA SINGH BHATI, J. In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court. 2. The petitioner has preferred this writ petition claiming the following reliefs: “i) That by an appropriate writ, order or direction, the order dated 04.02.2021 passed by Additional Chief Judicial Magistrate (Rent Tribunal), Jodhpur Metropolitan in application No. 34/2021 (NCV No. 33/2021) may kindly be quashed and set aside. (ii) That by an appropriate writ, order or direction, the respondents may kindly be directed to not dispossess present petitioner from his rightful possession on the rent premises without obtaining due process of law.” 3. Learned counsel for the petitioner submits that the present petitioner was an applicant before the learned Additional Chief Judicial Magistrate (Rent Tribunal), Jodhpur Metropolitan and it is an admitted case that the premises situated in Merti Gate, Jodhpur had been given on rent by the respondents No. 1 & 2 to respondent No. 3 through registered rent deed in the year 2016. It is further an admitted position that the respondent No. 3 started a partnership with the present petitioner and in pursuance to the partnership, both the parties started the business in the name of Mahak Printers in the above rented premises. 4. The narration of such fact makes it clear that the original tenant was respondent No. 3 and the relationship of the present petitioner is that he was a partner of respondent No. 3. 5. Learned counsel for the petitioner has vehemently submitted that it is a collusive decree and the petitioner being a partner and holding the property today as a tenant was required to be heard as a necessary party, and thus, the decree is bad in the eyes of law. He further submits that the rent was given by them on two occasions to the landlord. 6. He further submits that the rent was given by them on two occasions to the landlord. 6. Learned counsel for the petitioner has relied upon the judgment rendered by the Allahabad High Court in S.C.C. Revision No. 409/2015 Manoj Kumar Jain v. Kumari Jamal Ara Begum decided on 01.04.2019, relevant portion of which reads as under: “On the other hand, learned counsel for the plaintiff-opposite party submitted that the revisionist is sub-tenant and specific assertion has been made in this regard in paragraph 5 of the plaint and thus as per various decisions mentioned in the judgement of the trial court, a sub-tenant is not a necessary party in a suit for eviction of the main tenant. As per pleadings of the parties, it is not in dispute that the revisionist is in possession of the disputed premises. In the suit, one of the issue for consideration before the trial court would be whether Manoj Kumar Jain, the revisionist is occupying the disputed shop as tenant in his own right or as sub-tenant of his brother. Concededly, the defendant-respondent had already vacated the shop and is therefore, hardly left with any interest to contest the suit. The issue as to whether the possession of the revisionist over the disputed premises is as sub-tenant or tenant, could not be effectually and conclusively determined in the absence of the revisionist. The revisionist is thus at least a proper party to the proceedings. Once he has come forward to seek his impleadment, there is no reason to reject the application by assuming him to be a sub-tenant. As observed above, the issue as to whether he is occupying the disputed shop in his own right as tenant in chief or as a sub-tenant could only be decided only after evidence is led and for such purpose the revisionist would be the best person to prove the case set up by him in his regard. Consequently, this Court is of the opinion that the trial court has acted with material irregularity in exercise of its jurisdiction in rejecting the impleadment application. The impugned order dated 26.5.2015 is set aside. The revision is allowed. The trial court shall permit impleadment of the revisionist as defendant no. 2 in the suit and shall thereafter proceed with the same expeditiously in accordance with law.” 7. The impugned order dated 26.5.2015 is set aside. The revision is allowed. The trial court shall permit impleadment of the revisionist as defendant no. 2 in the suit and shall thereafter proceed with the same expeditiously in accordance with law.” 7. Learned counsel for the respondents submits that it is an undisputed fact that the relationship of landlord-tenant was between the respondents No. 1, 2 & 3 whereas the petitioner being a partner of respondent No. 3 was operating from the premises but at best his position is that of sub-lessee. 8. Learned counsel for the respondents has relied upon the precedent law laid down by the Hon'ble Apex Court in Balvant N. Viswamitra v. Yadav Sadashiv Mule (D) through LRs reported in 2004 Supp (3) SCR 519, relevant portion of which reads as under: “It was contended by learned counsel for the respondents that the respondents were not made party defendants in the suit and hence no decree could have been passed nor could be executed against them. We are afraid we cannot uphold the contention. It is the case of the plaintiffs that the property was let to Papamiya. It is not even the case of the respondents that they were the tenants of the plaintiffs. They are claiming through Papamiya, At the most, therefore, they can be said to be sub-tenants i.e. tenants of Papamiya. There was no privity of contract between the landlord and the respondents. In our opinion therefore, it was not necessary for the plaintiffs to join respondents as defendants in the suit nor to give notice to them before initiation of the proceedings. The respondents cannot be said to be “necessary party” to the proceedings. As held by this Court in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar, 1963 Supp (1) SCR 676, there is a distinction between “necessary party” and “proper party” In that case, the Court said: “The law on the subject is well settled : it is enough if we state the principle. As held by this Court in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar, 1963 Supp (1) SCR 676, there is a distinction between “necessary party” and “proper party” In that case, the Court said: “The law on the subject is well settled : it is enough if we state the principle. A necessary party is one without whom no order can be mode 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.” (emphasis supplied) In Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewala, AIR 1953 SC 73 this Court held that in a suit for possession by a landlord against a tenant, sub-tenant is merely a proper party and not a necessary party. In Rupchand Gupta v. Raghvanshi (Pvt.) Ltd., AIR 1964 SC 1889 an ex parte decree was passed in favour of the landlord and against the tenant. An application for setting aside the decree was made by the sub-tenant by invoking the provisions of Order IX, Rule 13 of the Code of Civil Procedure, 1908, inter alia contending that the decree was collusive inasmuch as the sub-tenant was not joined as party defendant. The decree was, therefore, liable to be set aside. Repelling the contention, this Court observed: “It is quite clear that the law does not require that the sub lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sublessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act.” (emphasis supplied) In our considered opinion, the present respondents could not be said to be “necessary party” to the suit. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act.” (emphasis supplied) In our considered opinion, the present respondents could not be said to be “necessary party” to the suit. Non-joinder of respondents, hence, would not make a decree passed by the Court of Small Causes, Bombay nullity or in-executable. The High Court erroneously proceeded against the well settled principle of law by observing in the impugned judgment that since the respondents (petitioners before the High Court) were claiming through Papamiya and as they were not joined as ‘party’ in the suit, the orders passed by the court “would in no way affect or bind them”. The above observation, in our opinion, did not lay down the law correctly. Since the respondents were not necessary parties, it was not incumbent on the plaintiffs to join them in the suit. The defendants appeased through an advocate and the decree was passed as their advocate withdraw his appearance. Even thereafter, S.K. Shaikh Ahmed and others claiming to be heirs of Papamiya filed a Writ Petition against the decree passed in RAE Suit No. 1992 of 1977, and even that petition was dismissed. In the circumstances, in our opinion, the High Court was wrong in interfering with the decree passed by Small Causes Court, Bombay and confirmed by the appellate bench of that court. The order passed by the High Court, therefore, deserves to be set aside. For the reasons aforesaid the appeal deserves to be allowed and is accordingly allowed. The judgment and order passed by the High Court in Civil Writ Petition No. 3384 of 1986 is set aside and the decree passed by the courts below is hereby restored. Interim stay granted earlier stands vacated. In the facts and circumstances of the case, however, there shall be no order as to costs.” 9. The judgment and order passed by the High Court in Civil Writ Petition No. 3384 of 1986 is set aside and the decree passed by the courts below is hereby restored. Interim stay granted earlier stands vacated. In the facts and circumstances of the case, however, there shall be no order as to costs.” 9. This Court, on examination of the facts and submissions made, is of the firm opinion that the precedent law of Balvant N. Viswamitra (supra) is applicable in the present case as in the case of Rupchand Gupta v. Raghvanshi (Pvt.) Ltd. reported in AIR 1964 SC 1889 , the Hon'ble Apex Court held regarding a collusive decree between the landlord and tenant that the law does not require the sub-lessee to be made as a party. The Hon'ble Apex Court also made it clear that the object of landlord is to evict the sub-lessee from the land in question which is a legitimate objection, and thus, the decree against the tenant would bind the sub-lessee. Though the Hon'ble Apex Court observed that this was a bit harsh upon sub-lessee but the Hon'ble Apex Court further laid down the law that the sub-lessee was not a necessary party and non-joinder of sub-lessee would not make a decree passed by the competent court as wrong in the eye of law. 10. At this stage, learned counsel for the petitioner submits that the petitioner is operating his business from the premises and a reasonable time of one year may be given to him. 11. Learned counsel for the respondents fairly submits that they shall not give time of one year but it will be agreeable if the petitioner gives requisite undertaking of execution and compliance of vacation before the competent court, they shall permit him to remain in possession for 8 more months from today. The arrears of rent shall be payable as decided by the executing court and the executing court shall accordingly take necessary undertakings. 12. In view of the consent of learned counsel for the parties, the writ petition is disposed of with the following directions:— (i) The petitioner-tenant shall be entitled to continue in occupation of the shop in question till 30.11.2021 with a condition that he would hand over the vacant possession of the shop in question to the respondent-landlord on or before 01.12.2021. (ii) The petitioner-tenant shall pay arrears of agreed rent if any, due upto 31.03.2021 within a period of one month from today. (iii) The petitioner-tenant shall not alienate or otherwise create third party right, or hand over possession of the shop in question to any other person. 13. Further, the petitioner-tenant shall submit an undertaking incorporating the aforesaid conditions before the learned Additional Chief Judicial Magistrate (Rent Tribunal), Jodhpur Metropolitan within a period of thirty days from today. In case petitioner-tenant fails to submit the undertaking as directed by this Court within a period of thirty days from today, or breaches the conditions of this order, the respondent-landlord shall be entitled to the immediate execution of the judgment and possession certificate dated 04.02.2021 and obtain possession of the shop in question forthwith in accordance with law. It is made clear that breach of this order shall also make the petitioner liable to be punished for contempt of the court. 14. The stay application as well as all pending applications also stand disposed of accordingly.