Kanaklata Das And Ors. vs Naba Kumar Das And Ors

Kanaklata Das & Ors. ….Appellant(s)

VERSUS

Naba Kumar Das & Ors. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is directed against the final

judgment and order dated 21.09.2006 passed by

the High Court of Kolkata in C.O. No.1759 of 2006

whereby the High Court allowed the application filed

by respondent No.1 herein and reversed the

judgment and order dated 15.12.2005 passed by

the Judge, Small Causes Court, Kolkata in

Signature Not Verified Ejectment Suit No.1615 of 2000 wherein the Trial Digitally signed by ASHA SUNDRIYAL Date: 2018.01.25 16:22:27 IST Reason: Court dismissed the application filed by respondent

No.1 herein under Order 1 Rule 10(2) of the Code of

1 Civil Procedure, 1908 (hereinafter referred to as “the

Code”) for impleadment as Plaintiff in the pending

ejectment suit.

2. The controversy involved in this appeal is short

and it would be clear from the few relevant facts

mentioned hereinbelow.

3. The appellants are the plaintiffs whereas

respondent Nos. 2 to 5 are the defendants in an

Ejectment Suit out of which this appeal arises.

4. The appellants have filed a suit for ejectment

being Ejectment Suit No.1615/2000 against

respondent Nos. 2 to 5 before the Small Causes

Court at Calcutta for their eviction on the grounds

of non-payment of rent, subletting, and bona fide

need of the suit premises for their personal use

under the provisions of the West Bengal Tenancy

Act. Respondent Nos. 2 to 5 have entered

appearance and are contesting the suit which is

pending.

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5. In the Ejectment Suit, respondent No. 1 herein

filed an application under Order 1 Rule 10(2) of the

Code praying therein that he may be allowed to

become the co-plaintiff along with the appellants.

Respondent No. 1 sought his impleadment alleging

that he is a member of the appellants’ family and

being so, has a right, title and interest not only in

the suit premises but also in other family properties

as one of the co-owners. It is essentially on these

allegations and with a view to protect his interest in

the suit premises, respondent No. 1 sought his

impleadment in the suit.

6. The said application for impleadment made by

respondent No. 1 was dismissed by the Trial Court

by order 15.12.2005(Annexure-P-7) but it was

allowed by the High Court by the impugned order

giving rise to filing of this appeal by way of special

leave in this Court against the order of the High

Court by the appellants (plaintiffs).

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7. Therefore, the short question, which arises for

consideration in this appeal, is whether the High

Court was justified in allowing the application filed

by respondent No. 1 under Order 1 Rule 10 (2) of

the Code thereby permitting him to become

co-plaintiff in the Ejectment Suit filed by the

appellants against respondent Nos. 2 to 5 for their

eviction from the suit premises.

8. Heard Mr. Ranjan Mukherjee, learned counsel

for the appellants and respondent No.1, who

appeared in-person.

9. Having heard the learned counsel for the

appellants and respondent No. 1, in-person, who

alone is the contesting respondent in this appeal

and on perusal of the record of the case, we are

inclined to allow the appeal and while setting aside

the impugned order of the High Court, restore the

order of the Trial Court with observations

hereinbelow.

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10. In other words, we are inclined to dismiss the

application filed by respondent No. 1 under Order 1

Rule 10(2) of the Code in appellants’ ejectment suit.

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 arose in this appeal. These principles are

mentioned infra.

12. 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.

13. 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.

14. 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

5 between the plaintiff and the defendant and second,

the ground(s) on which the plaintiff-landlord has

sought defendant’s-tenant's eviction under the Rent

Act exists. When these two things are proved,

eviction suit succeeds.

15. 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.

16. 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-Dr.

Ranbir Singh vs. Asharfi Lal, 1995(6) SCC 580).

17. Fourth, the plaintiff being a dominus litis

cannot be compelled to make any third person a

6 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.

18. 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 vs. Sudha Rani Banerjee

& Anr., 2005(8) SCC 140)

19. 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

7 in the proceeding. (See-Udit Narain Singh

Malpaharia vs. Additional Member Board of

Revenue, Bihar & Anr., AIR 1963 786)

20. 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 & Ors. vs. M. Chinniyan & Anr.,

2016(3) SCC 296)

21. Keeping in mind the aforementioned well

settled principles of law and on examining the

legality of the impugned order, we find that the

impugned order is not legally sustainable and hence

deserves to be set aside.

22. In our considered opinion, respondent No. 1,

who claims to be the co-sharer or/and co-owner

with the plaintiffs (appellants herein) of the suit

property is neither a necessary and nor a proper

8 party in the eviction suit of the appellants against

respondent Nos. 2 to 5. In other words, such

eviction suit can be decreed or dismissed on merits

even without the impleadment of respondent No.1.

23. In the eviction suit, the question of title or the

extent of the shares held by the appellants and

respondent No. 1 against each other in the suit

premises cannot be decided and nor can be made

the subject matter for its determination.

24. The reason being that this is not a suit

between the appellants (plaintiffs) and respondent

No.1 where their inter se rights relating to the suit

premises can be gone into but rather is an

ejectment suit filed by the appellants against

respondent Nos. 2 to 5 for their eviction from the

suit premises.

25. Therefore, the Lis in the suit is between the

appellants on the one hand and respondent Nos. 2

to 5 on the other hand and the decision in the suit

would depend upon the question as to whether

9 there exists any relationship of landlord and tenant

between the appellants and respondent Nos. 2 to 5

in relation to the suit premises and, if so, whether

the grounds pleaded in the plaint for claiming

eviction of respondent Nos. 2 to 5 are established or

not. For deciding these two main questions, the

presence of respondent No. 1 is not necessary.

26. For these reasons, we are of the considered

opinion that respondent No. 1 is neither a necessary

and nor a proper party in the suit.

27. We, however, make it clear that any finding

whether directly or indirectly, if recorded by the

Trial Court touching the question of title over the

suit property, would not be binding on respondent

No.1 regardless of the outcome of the suit and

respondent No. 1 would be free to file an

independent civil suit against the appellants for a

declaration of his right, title and interest in the suit

premises and in any other properties, if so, and

10 claim partition and separate possession of his share

by metes and bounds in all such properties.

28. In view of the foregoing discussion, the appeal

succeeds and is allowed. The impugned order is set

aside and the order of the Trial Court is restored.

29. As a consequence, the application filed by

respondent No. 1 under Order 1 Rule 10(2) of the

Code in the aforementioned ejectment suit is

dismissed.

30. The Trial Court is directed to decide the

ejectment suit on merits in accordance with law

expeditiously.

………...................................J. [R. K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE]

New Delhi;

January 25, 2018

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