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2025 DIGILAW 329 (PAT)

Remi M. David v. Pintu Kumar Sharaf

2025-03-25

ARUN KUMAR JHA

body2025
Arun Kumar Jha, J. – Heard learned counsel for the petitioner as well as learned counsel for the intervenor/respondent no. 2. 2. The present civil miscellaneous petition has been filed by the petitioner against the Order dated 02.02.2023 passed by learned Munsif, Bettiah in Eviction Suit No. 02 of 2020 whereby and whereunder the application dated 20.08.2022 filed by intervenor/respondent no. 2 under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure (in short “the Code”) has been allowed. 3. Learned counsel for the petitioner submits that the plaintiff/petitioner filed Eviction Suit No. 02 of 2020 against the defendant respondent no. 1 on the ground of expiry of lease and also sought arrears of rent with interest. While the eviction suit has been proceeding, the intervenor/respondent no. 2 filed the application for impleadment under Order 1 Rule 10 read with Section 151 of the Code on 20.08.2022. The intervenor/respondent no. 2 claimed that plaintiff has entered into an agreement to sale dated 10.06.2019 with the respondent no. 2 with respect to the whole area of 11 dhurs with the house situated on Plot No. 6711 which was the suit property as mentioned in Schedule A of the Eviction Suit. The respondent no. 2 claimed that he has already paid Rs. 65 lakh as an advance amount out of the total consideration amount of Rs. 80 lakh. When he approached the plaintiff with rest of the amount with request to execute the sale deed, the same has been refused by the plaintiff. Thereafter, respondent no. 2 filed Title Suit No. 254 of 2022 for specific performance of contract. Learned counsel further submits that the plaintiff contested the claim of the respondent no. 2 and raised the question of maintainability of his petition on the ground that petition has been filed with wrong facts and in collusion with the defendant/respondent no.1. Plaintiff denied executing any agreement of sale. However, the learned trial court without considering the facts and circumstances and the law applicable allowed the intervenor application of the respondent no. 2. The said order is under challenge before this Court. 4. Learned counsel further submits that the plaintiff/petitioner has already filed Eviction Suit No. 01 of 2020 against the intervenor/respondent no. 2 as he has been given a portion of shop on monthly rent for which the tenancy agreement was executed between the parties on 01.06.2019. 2. The said order is under challenge before this Court. 4. Learned counsel further submits that the plaintiff/petitioner has already filed Eviction Suit No. 01 of 2020 against the intervenor/respondent no. 2 as he has been given a portion of shop on monthly rent for which the tenancy agreement was executed between the parties on 01.06.2019. Respondent no. 2 defaulted in payment of rent and also breached the terms of agreement. Even in the said Eviction Suit, the intervenor respondent appeared and filed his written statement admitting the tenancy of the plaintiff but making wrong averment about plaintiff entering into an agreement of sale of 11 dhurs of land along with the house in favour of intervenor/respondent no. 2. Learned counsel further submits that moreover the intervenor/respondent no. 2 has already filed the title suit and in the eviction suit filed against other tenant, the title of the respondent no. 2 could not be decided. The respondent no. 2 is neither a necessary party nor a proper party as no relief has been sough against respondent no. 2 and his presence will not help the Court in effective disposal of the case before it, rather the whole purpose of respondent no. 2 in seeking impleadment is to linger the matter and complicate the issue. The claim of declaration of title and enforcement of agreement of sale of the intervenor respondent could be decided in Title Suit No. 254 of 2022 and there is no scope for the respondent no. 2 to seek impleadment in the Eviction Suit filed by the plaintiff/petitioner against the respondent no. 1. The respondent no. 2 is a complete stranger. The learned counsel thus submits that the impugned order has been passed without appreciation of any of the aforesaid facts and merely on the basis that the intervenor has brought on record a photocopy of the agreement of sale dated 10.06.2019 containing the suit property of the eviction suit and allowed the impleadment of the intervenor respondent no. 2 on wrong appreciation of law. Thus, the impugned order could not be sustained and the same be set aside. 5. Learned counsel appearing on behalf of the respondent no.2 vehemently contends that there is no infirmity in the impugned order. The plaintiff/petitioner entered into an agreement of sale with respondent no. 2 on wrong appreciation of law. Thus, the impugned order could not be sustained and the same be set aside. 5. Learned counsel appearing on behalf of the respondent no.2 vehemently contends that there is no infirmity in the impugned order. The plaintiff/petitioner entered into an agreement of sale with respondent no. 2 for the suit land of 11 dhurs along with the house situated on it and the respondent no. 2 has already made payment of Rs. 65 lakh out of total consideration amount of Rs.80 lakh to the plaintiff who is now denying the agreement. If the respondent no. 2 is not allowed to be impleaded he would not be able to protect his interest with regard to whole of his land i.e., 11 dhurs. However, learned counsel has no answer to the query that how the claim of the intervenor/respondent no. 2 could be decided in an eviction suit more so when intervenor/respondent no. 2 has already filed a title suit for establishing his claim and enforcing the agreement of sale said to be entered into by plaintiff/petitioner and respondent no. 2. 6. I have given my thoughtful consideration to the rival submission of the parties and perused the record. Admittedly the intervenor/respondent no. 2 is also a tenant and two eviction suits have been filed by the plaintiff/petitioner. If the intervenor/respondent no. 2 claims that he has entered into an agreement of sale with the plaintiff for purchase of the suit property for certain consideration amount, the said claim could not be agitated in the Eviction Suit filed by the plaintiff against another tenant. Moreover, respondent no. 2 has already filed title suit seeking enforcement of his agreement of sale and the said claim could be decided by the Court which in seisin the matter regarding claim of the respondent no. 2 over the suit property on the basis of agreement of sale. But in the present case, the learned trial court exceeded its jurisdiction and passed a completely erroneous order without consideration either of the fact or of the law that the respondent no. 2 is neither a necessary party nor a proper party under the terms of Order 1 rule 10(2) of the Code. But in the present case, the learned trial court exceeded its jurisdiction and passed a completely erroneous order without consideration either of the fact or of the law that the respondent no. 2 is neither a necessary party nor a proper party under the terms of Order 1 rule 10(2) of the Code. The Hon’ble Supreme Court in the case of Mumbai International Airport (P) Ltd. vs. Regency Convention Centre and Hotels (P) Ltd. and Ors., reported in (2010) 7 SCC 417 has discussed the law relating to impleadment of the parties. It will be pertinent to quote paragraphs 13, 14 & 15 of the said judgment: – “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. 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 may be 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 party: (a) any person who ought to have been joined as plaintiff or defendant, 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 proper 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. 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.” Presence of the respondent no. 2 is not at all necessary for the disposal of the issue in the Eviction Suit No. 02 of 2020. No relief has been sought against the respondent no. 2 and his presence is not required even for effective disposal of the case or determination of the controversy between the parties. The respondent no. 2 is merely an interloper in the eviction suit of the plaintiff/petitioner. Therefore, the impugned order dated 02.02.2023 could not be sustained and hence, the same is set aside. 7. Accordingly, the present petition stands allowed.