Sunday, 23 February 2020

Precaution to be taken by court while allowing application for addition of parties in eviction suit against tenant

Order 1, Rule 10 of the Code of Civil Procedure empowers the Court to strike out or add parties whose presence before the Court may be necessary in order to enable the Court to adjudicate upon and settle all the questions involved in the suit effectively and completely. However in doing so the Court must keep in mind that the scope of the suit is not enlarged and also the nature of the suit is not changed. It should also not cause any prejudice to either of the parties. !t is also imperative that the party sought to be added under the provisions should have a direct interest in the subject-matter of litigation. In every case the Court has got a discretion but it should be exercised in accordance with the settled principles of law. In the instant case it is clear that the plaintiff Peer Azhar Hussain has filed a suit with the allegation that he is the landlord and he let out the suit shop to defendant No. I and the latter in contravention of the terms of the contract let out the defendant No. 1 and thereafter defendants Nos. 1 and 2 sublet the same is defendant No. 3. The fact in issue in the case will be whether the plaintiff let out the shop to defendant No. 1 and whether defendant No. 1 sublet the same to defendant No. 2 and then defendants Nos. 1 and 2 sublet the suit shop to defendant No. 3. For adjudication of the above issues, the plaintiff will be called upon to prove the relationship of landlord and tenant existing between him and defendant No. 1 . In such a case the Court cannot embark upon the inquiry or rival claim of the plaintiff and petitioner regarding the title of the suit shop. The question of title cannot be investigated in such a case. The plaintiff will succeed or fail on his proving or disproving the above relationship. If the petitioner is arrayed a party there will be a rival claim regarding the ownership of me suit shop between the plaintiff and the petitioner. Without deciding the same the relevancy of arraying the petitioner as party will not be justified. In a suit for eviction the investigation of title is not warranted by law. Even if the petitioner is not made a party nothing is going to prejudice his case. The judgment delivered in this case will not be binding on him because that judgment will be a judgment in personam.

IN THE HIGH COURT OF RAJASTHAN

Civil Revn. Petn. No. 99 of 1998

Decided On: 04.02.1998

Talib Hussain Vs. Peer Azhar Hussain and Ors.

Hon'ble Judges/Coram:
P.C. Jain, J.

Citation: 1998 DGL (Raj) 73


1. The petitioner has filed this petition feeling aggrieved by the order dated 8-10-1997 passed by the learned Civil Judge (Jr. Div.), Jodhpur City in civil original suit No. 35/ 96 whereby the learned Civil Judge dismissed his application for being made a party in terms of the provisions contained in Order I, Rule 10. C.P.C.

2. I have heard Shri Sharma, learned counsel for the petitioner.

3. Relevant facts may be stated shortly as follows. The plaintiff filed a suit for ejectment and arrears of rent against three defendants with the averments that he let out the suit shop to defendant Abdul Jabbar by means of a written rent note dated 21-4-1962. The plaintiff alleged that defendant No. 1 sublet the above shop to the father of defendant No. 2 and thereafter defendants Nos. 1 and 2 in complicity sublet the above shop to defendant No. 3.

4. In the application moved by the petitioner under Order I, Rule 10(2), C.P.C. it was alleged that the suit shop does not belong to the plaintiff but it was gifted by Mohd. Suja to the petitioner by a gift-deed dated 25-8-1995. Thereafter the petitioner has become the owner of the suit shop in respect of which the plaintiff Peer Azhar Hussain filed the above suit. The petitioner further alleged that in fact he let out the above shop on rent to defendant No. 3 Suresh Borana on 1-2-1996 for Rs. 800/- per month by a registered rent note. The petitioner, therefore, pleaded that in the facts and circumstances staled above, it was necessary that he be joined as party in the suit filed by the plaintiff so that the real issues between the parties could be adjudicated and multiplicity of proceedings he avoided.

5. The learned Civil Judge did not find any substance in the application and the same was dismissed.

6. Shri Sharma, learned counsel for the petitioner has submitted that in such cases the Court has got a discretion to add a party in the array of defendants if the Court is of opinion that by adding that party it will be in a better position to adjudicate upon the controversy between the parties and in such a case Shri Ram Traders (1996) 2 RLW 436. He also cited Samast Panch Kaum Helan, Udaipur v. Jameel Mohd. 1985 RLR 477. Order 1, Rule 10 of the Code of Civil Procedure empowers the Court to strike out or add parties whose presence before the Court may be necessary in order to enable the Court to adjudicate upon and settle all the questions involved in the suit effectively and completely. However in doing so the Court must keep in mind that the scope of the suit is not enlarged and also the nature of the suit is not changed. It should also not cause any prejudice to either of the parties. !t is also imperative that the party sought to be added under the provisions should have a direct interest in the subject-matter of litigation. In every case the Court has got a discretion but it should be exercised in accordance with the settled principles of law. In the instant case it is clear that the plaintiff Peer Azhar Hussain has filed a suit with the allegation that he is the landlord and he let out the suit shop to defendant No. I and the latter in contravention of the terms of the contract let out the defendant No. 1 and thereafter defendants Nos. 1 and 2 sublet the same is defendant No. 3. The fact in issue in the case will be whether the plaintiff let out the shop to defendant No. 1 and whether defendant No. 1 sublet the same to defendant No. 2 and then defendants Nos. 1 and 2 sublet the suit shop to defendant No. 3. For adjudication of the above issues, the plaintiff will be called upon to prove the relationship of landlord and tenant existing between him and defendant No. 1 . In such a case the Court cannot embark upon the inquiry or rival claim of the plaintiff and petitioner regarding the title of the suit shop. The question of title cannot be investigated in such a case. The plaintiff will succeed or fail on his proving or disproving the above relationship. If the petitioner is arrayed a party there will be a rival claim regarding the ownership of me suit shop between the plaintiff and the petitioner. Without deciding the same the relevancy of arraying the petitioner as party will not be justified. In a suit for eviction the investigation of title is not warranted by law. Even if the petitioner is not made a party nothing is going to prejudice his case. The judgment delivered in this case will not be binding on him because that judgment will be a judgment in personam.

7. For the above reasons, the learned trial Court has not acted with any material irregularity or illegality in the exercise of his jurisdiction.

8. There is no force in the revision petition and the same is. therefore, hereby dismissed.


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