Wednesday, 27 June 2018

Whether person claiming to be tenant can be added as party to suit?

 In its turn Order 1, Rule 10 of C.P.C. postulates that all parties which are necessary for a proper determination of a suit should be impleaded in the lite for the sake of justice. Moreover, in the instant case, the respondents Nos. 4 to 7, who had been joined by respondent No. 3 in the proceedings as heirs of late Vishnu in his application under section 22, have expressly pleaded that they were not the tenants of the premises and instead the real lessees were the petitioners. It seems, therefore, that in the circumstances it would be only just and fair that the petitioners, should not have been denied the necessary protection to their alleged rights consequent upon the refusal to implead them as parties in the proceedings.

 I am afraid once again that the submission of Shri Coelho Pereira is missing the real point Here is the case wherein the petitioners are not contending to be contractual tenants of the landlord. On the contrary, it is their plea that by effect of the agreement entered by Vishnu, ostensibly in his name but also on behalf of the family business partnership and the circumstances of the landlord being fully aware of this petition, having always accepted the petitioners and before that their late father also as lessees of the premises, they are entitled to the legal protection as statutory tenants of the suit shops. Therefore, by rejecting their prayer to intervene in the proceedings and depriving them from substantiating this plea the Rent Controller and the Tribunal have committed a gross error of jurisdiction, calling for intervention of this Court in the exercise of its writ powers, under Article 227 of the Constitution, to meet the ends of justice.

IN THE HIGH COURT OF BOMBAY (PANAJI BENCH)

Writ Petition No. 174 of 1990

Decided On: 03.07.1991

 Srirang Subraia Kamat Tarcar  Vs.  Administrative Tribunal of Goa at Panaji and Ors.

Hon'ble Judges/Coram:
Dr. E.D.S. Dasilva, J.

Citation: 1992(1) Bom CR 326



1. The respondent No. 3 is the owner of part of the building known as "Mascarenhas Building" situated along the Afonso de Albuquerque Road and D. Antao de Noronha Road, Panaji, which was constructed some years back after the old building, which was existing in its place was pulled down. Since 1920 or thereabout a shop on the ground floor of that building had been leased to the Joint Hindu family of which the petitioner's late father Subraia, his brother late Vishnu, who was the father of respondents Nos. 4 and 5, were the members carrying on the family business of grocery. The said business was being run by them in the name and style of M/s. Vishnu V. Camotim Tarcar. Later on they have opened another shop at Panaji in the building next to Customs House where presently there is Vistar Hotel. On the opening of that shop the petitioner's father and his brother Vishnu reached an agreement whereby the petitioner's father started managing the said shop in the old building while Vishnu was looking after the business of the other shop. Sometime in 1950, after the death of their faith the petitioners started managing the shop in the old building as successors of Subraia full knowledge of the respondent No. 3's father as well as of the respondent No. 3 himself the normal business was being run in the name of M/s. Vishnu K. Camotim Tarcar are lease of the shop was obtained in the same name. This lease was subsequently renewed from time to time and stood always in the name of Vishnu Kamat Tarcar. The lease agreement in the name of M/s. Vishnu Camotim Tarcar was always in the representative capacity. The said Vishnu representing himself and his brother the late Subraia. This fact was also known to the respondent No. 3's late father as well to the respondent No. 3 himself. The respondent No. 3 always received rents for the shop from the petitioners from time to time in the name of the partnership firm M/s. Srirang Kamat Tarcar and Brothers of which the petitioners are the partners. When the old building was to be pulled down for the purpose of reconstruction of the new multi-storeyed building it was the petitioners who handed over the possession of the premises of the shop to the respondent No. 3 for the purpose of its demolition with a right of re-occupation in the newly constructed building. Thus there was in fact as well as in law a direct landlord and tenant relationship between the respondent No. 3 and the petitioners in respect of the said shop. Sometime in 1979 the respondent No. 3 filed purportedly eviction proceedings, bearing Case No. 15 of 79, in the Court of the Rent Controller, North Goa Division, against the respondents Nos. 4 to 7 in respect of the said shop on the ground that the said respondents had transferred their rights under the lease in favour of the petitioners since 1964. The respondents No. 4 to 7 filed written statement contesting the proceedings and among other things, clearly stated that they had ceased to be tenants of the shop and, since about 1964, it was the petitioners who had been the bona fide tenants thereof. The respondent No. 3 has filed the proceedings against the respondents Nos. 4 to 7 mala fide and with ulterior motives with the object of securing the eviction of the petitioners from the leased premises behind their back inspite of the fact that they are the original tenants. When the petitioners came to know of the purported eviction proceedings they filed an application, dated 11-2-1980, before the Rent Controller praying that they may be impleaded as parties. The said application was filed under Rule 9(2) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Rules. 1969 (hereinafter called the Rules) read with section 17 of the Mamlatdar's Court Act. By order dated 5-3-1980 the Rent Controller dismissed the application. The petitioners then filed a Revision Application No. 8/BLDG/80 before the Administrative Tribunal of Goa, Daman and Diu, Panaji, against the said order of the Rent Controller dated 5-3-1980 and the Tribunal by its order dated 21-7-1981 allowed the petitioners' application and remanded the matter to the Controller for disposing of the said application afresh. On remand the Rent Controller heard the parties and by his order dated 11-10-1982 rejected for the second time the petitioners' application. The petitioners then impugned this order before the Administrative Tribunal again and the Tribunal by their judgment dated 27-12-1989 dismissed their petition and affirmed the order of the Rent Controller. It is this order, dated 27-12-1989, of the Appellate Tribunal as well as the order dated 11-10-1982 of the Rent Controller which are now challenged by the petitioners before us in this writ petition filed by them under Articles 226 and 227 of the Constitution.

2. Shri Mulgaonkar, learned Counsel for the petitioners, has made considerable grievance against the decision of the Administrative Tribunal which has failed to exercise jurisdiction vested on them and passed the impugned order in the erroneous exercise of its jurisdiction. The main submission of Shri Mulgaonkar is that the Administrative Tribunal did not give them any chance to prove that the petitioners were the real tenants of the suit shops, had always paid rents to the landlord and even at the time of the demolition of the old building which was replaced by the new one it was the petitioners also who got it vacated and handed over its possession to the owners and after the reconstruction were given by the landlord the possession of the shops. According to Shri Mulgaonkar, the Tribunal has erroneously treated the petitioners as if they were the sub-lessees of the premises and inspite of the fact that from the very beginning they always claimed to be its actual tenants. Shri Mulgaonkar contended that, apart from the fact that nowhere in the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control, Act, 1968 (hereinafter called the Act) it has been said that the transfer or could not be impleaded as parties in the proceedings instituted by the landlord against the ostensible tenants, there was also no bar in the Act for the Rent Controller to grant them in the same proceedings a declaration that they were the statutory tenants of the suit shops. By shutting them out, both the Rent Controller first as well as the Administrative Tribunal did not allow the petitioners to project their case at all. Admittedly the lease deed in respect of the shops had been executed in the name of Vishnu Kamat Tarcar but this was done in some peculiar circumstances which the petitioners would be able to explain and establish, if an opportunity had been afforded to them. Shri Mulgaonkar urged that section 34 of the Act was not going to come in the way of the petitioners seeking a remedy in the proceedings started by the respondent No. 3, under section 22(2)(b)(i)of the Act, against respondents No. 4 to 7 because the inexistence of the lease deed between the petitioners and the landlord could not mean that no legal protection was available to them. Shri Mulgaonkar pointed out that after the enactment of the Act the relationship between the landlord and the tenants ceased to be strictly contractual and the law recognises now the statutory tenancy which the petitioners are claiming being, as such, entitled for protection even if there was no written agreement. On the other hand, it was not even the case of the landlord that the petitioners were sub-lessees because he himself, in his own application sought for the eviction of the respondents No. 4 to 7 on the ground that they had unauthorisedly transferred their rights to the petitioners. This means that for the respondent No. 3 they were 'transferees' and not sub-lessees and as such section 51 did not apply to them. Therefore, the Tribunal should not have held, and it was wrong for them to say so, that being the petitioners viewed by the landlord as sub-tenants only there was no necessity under the Act to make them parties in the eviction proceedings. In fact, the Tribunal overlooked that the order of the Rent Controller was patently bad because the real issue to be decided in the proceedings was to find out who were the actual tenants of the suit premises. Hence it would be only proper that, in the interest of justice and fair play, the prayers of the petitioners should not have been rejected either by the Rent Controller or by the Tribunal.

3. There is a lot of substance in the submissions of Shri Mulgaonkar. Admittedly, the petitioners by themselves and on behalf of their predecessors-in-title, were always in physical possession of the suit premises even prior to the reconstruction of the old building. They were occupying, for commercial purposes, the two shops in the new premises in place of the original one shop in the old building which was leased by the father of respondent No. 3 in the name of the petitioners' Uncle Vishnu Kamat Tarcar, sometime in or about 1920, although it was meant for the running of the joint family business of which both Vishnu and their father Subraia were partners. This being the position, when the respondent No. 3 moved the Rent Controller for eviction of the heirs of the late Vishnu, on the ground of illegal transfer of their tenancy rights to the petitioners, it is difficult to appreciate as to how the Rent Controller, and for that matter the Tribunal as well simply brushed aside the petitioners' claim that they were the real tenants of the shops, as otherwise pleaded by respondents Nos. 4 to 7, without even holding an inquiry and by just refusing to entertain their request to be impleaded as parties in the proceedings. Obviously that, in the absence of any written contract, the stand taken by the petitioners and the facts alleged by them as well as by the heirs of the purported original tenant Vishnu about their statutory tenancy should have alerted the Rent Controller and the Tribunal and make them realize that their attempt to lake part in the proceedings in defence of their legitimate interests was not to be discarded. For all purposes the petitioners should have been considered in those proceedings not only proper but also necessary parties very much required for a just and fair adjudicator of the real issues in controversy. The reliance placed by Shri Mulgaonkar in Smt. Pushpa Devi and others v. Milkhi Ram (Dead by his L. Rs.), MANU/SC/0149/1990 : [1990]1SCR278 . which has held that, for certain purposes, the expression "tenant" should include also "a person claiming to be a tenant" seems to be quite pertinent and therefore it was improper for the Tribunal to construe the definition of tenant for the purpose of the Act in such a narrow sense.

4. Further, Rule 9(2) of the Rules provides that in all inquiries and proceedings, under any provisions of the Act, the Controller or the Tribunal shall exercise the same powers as the Mamlatdar under the Goa, Daman and Diu Mamlatdar's Court Act, 1966 (hereinafter called the Mamlatdar's Court Act) and shall follow the provisions of the said Act as if the Controller or the Rent Tribunal were a Mamlatdar's Court under the said Act. In its turn section 17(2) of the Mamlatdar's Court Act prescribes that the Mamlatdar may order the name of any person, the addition of whom as a party appears necessary in order to enable the Court to effectually and completely adjudicate upon the issues, to be added as a plaintiff or defendant as the circumstances of the case may require. It follows therefore, that these are the enabling provisions which had invested the Rent Controller with the required jurisdiction to entertain the prayer of the petitioners for being impleaded in the proceedings. In its turn Order 1, Rule 10 of C.P.C. postulates that all parties which are necessary for a proper determination of a suit should be impleaded in the lite for the sake of justice. Moreover, in the instant case, the respondents Nos. 4 to 7, who had been joined by respondent No. 3 in the proceedings as heirs of late Vishnu in his application under section 22, have expressly pleaded that they were not the tenants of the premises and instead the real lessees were the petitioners. It seems, therefore, that in the circumstances it would be only just and fair that the petitioners, should not have been denied the necessary protection to their alleged rights consequent upon the refusal to implead them as parties in the proceedings.

5. On the other hand, the findings of the Tribunal that there was nothing to show that the petitioners were ever recognised as tenants by the landlord, that there was no evidence to point out that the original lessee, the late Vishnu, was acting on behalf of the petitioner when the lease deed was executed and also that there was nothing on record to suggest that the petitioners were the tenants of the suit premises, appear somehow fallacious and inadmissible. On one side, the Tribunal, by affirming the order of the Rent Controller, has pre-empted the petitioners from leading the necessary evidence in support of their claim of statutory tenancy, while, on the other, went on finding fault on the petitioner's inability to substantiate this same plea and summarily rejected their prayer.

6. On the other hand, Shri Coelho Pereira, while referring to Order 1, Rule l0 of C.P.C. observed that even assuming that the said provision was to be applied the power given to the Court to add parties or strike down parties in the proceedings were of the nature of a discretion which the Court was bound to exercise judiciously. In the instant case the question which arises is to find out whether the Rent Controller has rightly exercised this discretion and if so whether the petitioners could approach the High Court to substitute this discretion on the ground that the same was not properly exercised. Shri Coelho Pereira placed reliance on the decision of the Supreme Court in Venkatlal G. Pttie v. M/s. Bright Bros. (Pvt.) Ltd. 1987 (2) R.C.J.S.C. 457, wherein it has been held that the High Court was not justified to interfere with the concurrent findings of the courts below in exercise of its power under Article 227 of the Constitution merely on the ground that the view it took was a possible view. Shri Coelho Pereira submitted that in the present case there were two concurrent findings of the Rent Controller and the Appellate Tribunal who have applied their mind and found that the presence of the petitioners in the eviction proceedings filed by him was not necessary. For this purpose the concerned authorities have considered all the relevant factors and examined the conflicting views of both the parties before they reached to the same conclusion on the main point placed for their adjudication. Shri Coelho Pereira sought to show that there was no perversity in the judgment of the Appellate Tribunal and in fact none has been alleged by the petitioners. Therefore, since the petitioners are not able to disclose what was the actual injury which they were likely to suffer the High Court should not interfere or arrogate for itself powers which only an Appellate Court could have exercised.

7. Shri Mulgaonkar, in him, relied in the case of Harbans Singh and others v. E.R. Srinivasan and another, MANU/DE/0068/1978 : AIR1979Delhi171 , to bring home his point that although the plaintiff in a suit is 'dominus lite' and cannot be made, against his consent, to fight a third party other than the defendant impleaded by him, however, in appropriate cases a third person can be impleaded as a party. Thus the Court held that what was required to be considered is whether the presence of the proposed party was necessary in order to enable the Court to effectively and .completely adjudicate upon all the questions arising in the suit. In a suit for ejectment by landlord against the tenant wherein a third party applied for getting himself impleaded as a defendant on the ground that he was the real tenant (as in the present case) the Court was of the view, on the assumption that the evidence and the circumstances in the case prima facie established that his claim was bona fide and plausible, that he was entitled to be impleaded as a defendant. It was also observed that his intervention in the suit would prevent multiplicity of proceedings and the question could be completely and effectively decided in the presence of all the parties.

8. Shri Coelho Pereira, in reply, while cautioning that this was a case for eviction filed in a Competent Civil Court where all issues could be conveniently dealt with, however, argued that the ratio of this judgment could not be applied in the case in question. Further, the Rent Controller could not give a declaration to the petitioners that they were tenants and, as far as the landlord was concerned, only the respondents Nos. 4 to 7 were the tenants of the premises, being the petitioners as mere transferees to be deemed as rank trespassers. The Rent Controller having no powers to adjudicate the petitioners' claim, this would not be a case which could be conveniently and effectively decided by him, the remedy for the petitioners thus lying elsewhere. Shri Coelho Pereira further submitted that what in substance the Delhi judgment says is that the discretion of the Court should be the real touchstone for the purpose of allowing the intervention of the parties under Order 1, Rule 10 C.P.C. and only when the Court finds it necessary to add parties and is prima facie satisfied that such impleading is justified because the plea of the applicant is sustainable then only the Court can order that a new party be added to the pending proceedings.

9. Shri Coelho Pereira has urged that, since the very beginning, the original lease of the shop in the old building was executed by the landlord in favour of the late father of respondents Nos. 4 to 7, Vishnu Kamat Tarcar, and even in 1978 eviction proceedings were filed by him against the said Vishnu to obtain possession of the building set for demolition. Then also there was no plea or at least a whisper from anybody regarding Subraia's or his successors' rights as a result whereof the claimed possession of the premises was given to the landlord by the said Vishnu. Again and after the reconstruction of the building a fresh lease was executed by Vishnu and it was he who occupied both the suit shops in the new premises. Pursuant to the fresh lease there was a clause regarding payment of fair rent for the premises and it was Vishnu who filed proceedings against the landlord for fixation of fair rent.

10. In this respect we must observe that all these points raised by Shri Coelho Pereira are no doubt questions of fact which require detailed evidence and this can be effectively done only if proper and interested parties are taking part in the proceedings. It is true that in the instant case the heirs of Vishnu have been impleaded as parties by the landlord but as per their own Stand their interest in resisting the landlord's application for eviction is nil and the only sufferers in case the application is allowed would be the petitioners. Hence it is evident that the Petitioners are necessary parties in the proceedings and their intervention alone would enable them to meet the issue of illegal or unauthorised transfer raised by the landlord.

11. On the other hand, the question of the Rent Controller having or not powers to grant to petitioners any declaration to the effect that they are tenants is not also an issue and therefore does not arise. This is not certainly the aim of their application. The petitioners are only seeking their intervention to show that there was no illegal transfer of rights as contended by the landlord and since the very beginning they were acknowledged by the landlord as statutory tenants of the premises.

12. Shri Coelho Pereira further contended that once the Tribunal refused to interfere, considering the limited scope of its revisional powers, the petitioners have no right to seek for a fresh interference of the High Court in a writ under Article 227 of the Constitution. Reference was made to section 34 of the Act which provides that a lease shall be executed between the landlord and the tenant whenever a building is let out after the Act came into force. This provision shows that the making of a written agreement of lease is a legal mandate to entitle a lessee to claim contractual tenancy. Similarly being relevant in this context section 91 of the Evidence Act prescribes that : "when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself,.....". Section 92 of the same Act also provides that :"When the terms of any such contract, grant or other disposition of properly, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms". It thus follows that, from these provisions the petitioners cannot avail of any plea eventually raised by respondents Nos. 4 to 7 in their written statement projecting them as the tenants of the premises.

13. I am afraid once again that the submission of Shri Coelho Pereira is missing the real point Here is the case wherein the petitioners are not contending to be contractual tenants of the landlord. On the contrary, it is their plea that by effect of the agreement entered by Vishnu, ostensibly in his name but also on behalf of the family business partnership and the circumstances of the landlord being fully aware of this petition, having always accepted the petitioners and before that their late father also as lessees of the premises, they are entitled to the legal protection as statutory tenants of the suit shops. Therefore, by rejecting their prayer to intervene in the proceedings and depriving them from substantiating this plea the Rent Controller and the Tribunal have committed a gross error of jurisdiction, calling for intervention of this Court in the exercise of its writ powers, under Article 227 of the Constitution, to meet the ends of justice.

14. With regard to the decision relied by the petitioners in Smt. Pushpa Devi v. Milkhi Ram, MANU/SC/0149/1990 : [1990]1SCR278 , Shri Coelho Pereira contended that this was a judgment delivered by the Supreme Court in a totally different context and which has nothing to do with the issues arising, in the case under our consideration. There the question which came, in a suit filed by the landlord against both the tenant and sub-tenant, who was being represented also by the same lawyer representing the tenant, was whether a deposit made by the sub-tenant under the provisions of section l3(2)(i)of the East Punjab Urban Rent Restriction Act, 1949 (corresponding to section 22(3) of the Act) was a valid deposit or not for the purpose of the Punjab Act. The Court answered in the affirmative by observing that the word "tenant" includes also a "person claiming to be a tenant".

15. We are unable to subscribe the view propounded by Shri Coelho Pereira. It is true that the aforesaid judgment was passed on facts but it is not less true that the implications of the ruling which has placed the tenant and the person claiming to be a tenant on the same footing for the purpose of the Act in a case of eviction filed by the landlord against both the tenant and sub-tenant cannot be lightly overlooked. To be noted also that the petitioners have not even claimed to be the sub-tenants of the premises and instead have always pleaded that they were its real and actual tenants. Hence obviously their case stands in a better position and there, is no reason as to why the ratio of the judgment and particularly the findings given on the main issue should not be applied in this case.

16. Shri Coelho Pereira has placed reliance on another case in Jagat Enterprises v. Anup Kumar Daw and others, MANU/WB/0055/1977 : AIR1977Cal209 , regarding a suit for ejectment by the landlord against a lessee wherein a sub-lessee of the premises sought to be impleaded in the proceedings and the Court held that a sub-lessee had no right to be added in the suit as a necessary party. The Court observed that though under the law the decree for possession against the lessee is binding on the sub-lessee, the sub-lessee is not entitled to take steps to resist the decree on the grounds as may be available to him. This right does not mean or imply that the sub-lessee is entitled on his own to be added as a party in the eviction suit against the lessee in his own right when he is not made a party and on his case he had an independent right in respect of his tenancy.

17. Once again the case in question seems to be quite different and perfectly distinguishable on facts. Ours is a case in which the petitioners are not saying that they are the sub-lessees but, on the contrary, claim to be the tenants although pleading statutory tenancy. They are not claiming an independent right in respect of their tenancy. Hence the ratio of the decision is obviously not attracted in this case.

18. Similarly the authority cited by Shri Coelho Pereira in the case of Rupchand Gupta v. Raghuvanshi (Private) Ltd. and another, MANU/SC/0296/1964 : [1964]7SCR760 , is also of no avail for that matter since it deals also with a case of sub-lessee which is not certainly the status claimed by the petitioners in respect of the suit premises. Therefore, we need not elaborate any further on the legal complications of this decision in respect of the subject matter in issue.

19. As far as the plea of concurrent findings raised by Shri Coelho Pereira and his submission that in such situations, the High Court should go slow in the exercise of its writ jurisdiction under Article 227 of the Constitution, we must observe that the petitioners' grievance is that the Tribunal totally ignored the fact that a bare reading of the Rent Controller's order shows that the only finding given by him is that if the petitioners were to be added as necessary parties it would amount to consider them as tenants when this is strongly objected by the landlord. In that case the landlord would have to suffer because his application under section 22(3) would be hit for "mis-joinder of respondents" and "non-joined of necessary parties". The result is that the application itself would fail making the respondents Nos. 4 to 7 the only beneficiaries, as that would help in getting the charges of unauthorised transfer of their tenancy right to the petitioners, levelled against them by the landlord in his main application, nullified. This being the position, as Shri Mulgaonkar rightly contends, it could not be said that there was any valid or relevant finding before the Tribunal and the fact that the Tribunal refused to interfere with that irrelevant finding, which is clearly no finding at all in the eyes of law, only shows non-application of mind and at the same time a blatant failure on its part to exercise jurisdiction. Besides the Delhi ruling cited by the petitioners MANU/DE/0068/1978 : AIR1979Delhi171 , has clearly spoken of the need for the applicant to show a direct and subsisting interest on the subject matter of the suit and his bona fide and plausible claim which could be completely and effectively considered in the suit itself.

20. The records disclose that neither the Rent Controller nor the Tribunal have given any finding to the effect that the petitioners' claim could not be conveniently and effectively adjudicated consequent upon their impleading in the case. Instead, the petitioners have abundantly shown their "genuine interest" in participating in the proceedings and inspite of that no findings were rendered by any of these authorities on this point also. It follows therefore that neither the Rent Controller nor the Tribunal have properly exercised jurisdiction vested in them and failed to judiciously use their discretion in the matter. Hence there is no question of any concurrent findings being affected or upset in case this Court chooses to use its supervisory and revisional authority, under Article 227 of the Constitution.

21. In the result the petition is to succeed and is hereby allowed with costs for the respondent No. 3. The order dated 27-12-1989 of the Administrative Tribunal as well as the order dated 11. 10-1982 of the Rent Controller, Goa, North Division, Panaji, are quashed and set aside and the application of the petitioners dated 11-2-1980, in Rent Case No. 15 of 79, is granted prayed for. Rule made absolute in the above terms.




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