Harbans Singh vs E.R. Srinivasan And Anr.
19 October, 1978
Equivalent citations: AIR 1979 Delhi 171, ILR 1979 Delhi 248
Author: S Ranganathan
Bench: S Ranganathan
JUDGMENT S. Ranganathan, J.
(1) This is a petition for revising under Section 115 of the Code of Civil Procedure an order of the Sub Judge, 1st Class, Delhi allowing an application made under Order I rule 10 of the Code of Civil Procedure and directing that the applicant be impleaded as a defendant in Suit No. 836 of 1973. The plaintiffs are the petitioners.
(2) Sardar Soham Singh was admittedly the owner of premises bearing No. 4/65 W.E.A., Karol Bagh, New Delhi. He died on 12-5-1965 leaving behind four sons and three daughters who are the plaintiffs in the above suit. Sohan Singh as well as all his children have all along been residents of Bangkok. Thailand and the suit has been filed through their “Mukhtar Am” Sardar Amar Singh who resides in the above premises in Karol Bagh.
(3) This suit was instituted by the plaintiffs against one Srinivasan (the first respondent herein) for the recovery of possession of a portion of the ground floor of the above premises (namely two rooms, kitchen,, bath and W. C.). The plaint in the suit dated 1-8-1973 was a very short one. It alleged that the defendant was in unauthorised possession of the portion in dispute and had refused to surrender possession to the plaintiff’s or to Amar Singh, though called upon by them to do so, the final refusal having been made “since a week back”. It was’ therefore prayed that a decree for possession of the premises (marked red in the annexed plan) and for costs be passed in favor of the plaintiffs against the defendant. Summons to the defendant by registered post was directed to be issued on three occasions but were returned on the ground that the premises were locked. Thereupon the plaintiff filed an application under Order V Rule 20 staling that the defendant “was avoiding service intentionally”. On 1-11-1973 the Court directed that he may be served by publication in a newspaper and the suit was posted to the 4th December, 1973.
(4) At this stage on 3-12-1973 one Ramanujam (second respondent herein) came forward with an application under Order I Rule 10 Code of Civil Procedure and sought to get imp leaded as defendant in the suit. His case was that he had been the tenant of Sohan Singh in respect of the suit property and the courtyard “for the last about 15 years on monthly rent of Rs. 90”; that the owners being away in Bangkok collected the rents when they or their cousin Ajit Singh visited India; that the last visit was in September 1970 when Ajit Singh received from the applicant the rents up to 30th September, 1970; that the applicant had sublet a part of the premises (namely one room and the kitchen) with the consent and permission of Sohan Singh to Srinivasan; that Srinivasan had surrendered the portion to the applicant in September, 1972 when he left for Canada; and that thereafter the applicant continued to be in occupation of the entire suit premises. It was therefore stated that only he and not the first respondent had an interest’ and title in the suit premises and that he was therefore a necessary and proper party to the suit. It was alleged that Amar Singh “posing himself” as general attorney of the present owners had filed the suit without their knowledge or instructions, It was alleged that the suit had been filed against Srinivasan knowing full well that be was not in possession and taking advantage of the absence of the applicant and his son from the premises with a view to obtain an ex-parte decree for possession and having it executed during their absence from the premises.
(5) The application was naturally contested on behalf of the plaintiffs. It was affirmed that the suit had been properly filed. It was denied that the applicant had anything to do with the suit premises. It was reiterated that the first respondent was in occupation and in support of this allegation photograph said to have been taken on 24-8-1973 and showing the name plate of the first respondent affixed in front of the premises was filed. It was stated that the second respondent was a tenant of Amar Singh in respect of another premises bearing No. 12/4 W.E.A. Karol Bagh, New Delhi that even there the applicant had been in default of rent for the last 10 years and that a suit for ejectment was pending against him. On 19-2-1974 the plaintiff moved an application under Order Xxvi Rule 9 alleging that the premises was lying vacant and locked by the first respondent and not in the occupation of the second respondent. It was alleged that the applicant had removed the name plate of the first respondent. It was prayed that the court should inspect the disputed premises the same gay or in alternative appoint a local commissioner to go to the spot and submit a report to the court about the factual position.
(6) The Court by an order dated 19-2-1974 appointed Sri A. S. Kalra, Advocate to inspect the disputed premises. The commissioner visited the spot on the evening of 21st February, 1974 in the: presence of ?he parties and their counsel and submitted his report on 23-2-1974. This report brought out the following facts :- 1.The rooms in dispute were bolted one from inside and the other on the outside entrance towards the road. 2. The door on the outside had two locks one of these (a Harison lock) was opened by a key supplied by the plaintiff who admitted having put this lock on the 19th instant over a Godrej lock which was there earlier. The Godrej lock however could not be opened as the plaintiff did not supply the key for it and the key supplied by the applicant did not open it. The applicant however stated that he had put a different Godrej lock on the door and produced two keys which he stated pertained to the lock put by him. The two rooms therefore could not be entered to ascertain who was occupying the same. 3. An effort was made to enter the premises by a door in the service lane at the back opening into the courtyard. There was an Elephant lock on this door. The applicant produced a key but it could not open the door. The plaintiff produced a bare iron metal key without any mark which opened the door. The Elephant lock was an old one and had dents on one side. 4. Entering the courtyard it was seen that the kitchen, bathroom and latrine had no lock and presented the appearance of not having been used for quite a long time. There were some goods (one wooden rack, two empty bottles; and a mag) lying here. But the applicant claimed no right to these goods. 5. The rooms could not be entered from the courtyard as the two doors of the back room one opening out into the courtyard and one opening into a passage were locked from inside. 6. The portion of the premises opposite to the disputed portion was occupied by Amar Singh. From the fact that the keys supplied by the applicant could not open the lock on either door the commissioner concluded “.hit he had no connection with the rooms”.
On 2-3-1974 the applicant filed an affidavit in Court, apparently a reply to the affidavit in support of the application dated 19-2-1974. This was said to contain some typographical/clerical mistakes and an amended affidavit was filed on 6-3-1974. In these affidavits the applicant made the following allegations : The name plate of the first respondent had not been on the premises after he left in September, 1972 and it had not been removed by the applicant as alleged by the plaintiff. On 21-1-1974 the applicant had left for Madras and his son had shifted temporarily to the residence of a friend for studying for his examinations. He and his son had locked the front door with a Godrej lock No. 139340 for which there were two keys. The Elephant lock had been put up on the back door and the kitchen door had also been locked. When he returned from Madras on the afternoon of 20-2-1974 he found on the front door not the lock put up by him but two other locks. After verifying that it had not been done by his son he gave a police complaint. He also found the kitchen door open and articles there from missing except for a wooden rack. The removal of the lock from the front door and its replacement by two new locks and the tampering with the lock on the back door causing dents had clearly been done by Amar Singh. The applicant also stated that he had other evidence such as bank deposit counterfoils, receipts for house-fax paid by him and a receipt from Ajit Singh to show that he was the tenant in respect of the premises and that thin he would file if he was added as a party or even earlier if called upon to do so. The applicant also filed into the court two affidavits one of Dharam Singh and the other of Narayanan who also claimed to be tenants of other por.ions of the same premises and supported the applicant’s version that he was the tenant of the suit premises and that the first respondent to whom he had sublet a portion thereof had surrendered his portion in 1972 and left for Canada.
(7) The plaintiff refuted these allegations elaborately in his counter- affidavit of 11-3-1974 in which the allegations in his earlier affidavits were reiterated. So far as the bank deposits receipts and house-tax receipts were concerned it was urged that even if they were there the mere depositing of some amounts in the account of the plaintiff or the possession of the tax-receipts would not show [hat the applicant was in occupation of the suit premises. Regarding the affidavits of Dharam Singh and Narayanan it was stated that these affidavits had noi been called for by the Court and moreover they were also in unauthorised possession of other portions of the property and suits had been filed by the plaintiff against them for recovery of possession.
(8) At the time of the hearing of the: application the applicant tiled photostat copies of : (i) Pay-in-slips showing the following deposits by him in the bank account of Sohan Singh : date Amount 31.3.1957 Rs.. 90.00 9.7.1957 Rs.. 90.00 5.10.1959 Rs. 100.00 6-12-1960 Rs. 240.00 27.2.1961 Rs. 480.00 19.6.1961 Rs. 200.00 14.7.1961 Rs. 106.00 (ii) A receipt dated 25-9-1970 purporting to have been sign,ed by Ajit Singh in respect of a sum of Rs. 4340 received from the applicant, and (iii) two receipts dated 1-9-1971 and 18-9-1972 showing payment by the applicant of House Tax in respect of the suit premises of Rs. 1040.45 and Rs. 1185.55 respectively.
(9) “THE learned Sub-Judge was of opinion that the above receipts in respect of large amounts showed that the applicant had a direct subsisting interest in the property. This was also supported by two affidavits. The report of the Local Commissioner also made it clear that the first respondent was not in possession of the property at present and it was not the case of the plaintiff that he left the premises after the filling of the suits. The mere fact that his name plate was there did not make him an occupier of the property. The learned Sub-judge held that the applicant having a direct legal interest in the property should be allowed to defend the suits; all the more so because the first defendant had been proceeded ex-parte. She, therefore, allowed the application under Order I Rule to and it is against this order that the plaintiffs have preferred this revision petition.
(10) Shri Marwaha, for the petitioner, contended that, neither on facts nor in law, was the applicant entitled to be imp leaded as party to the suit. On the facts, he urged that it was clear from the return of the postal notices that the property was lying vacant. The report of the Local Commissioner had made it clear that the applicant was not in possession, and none of his property was in the house. The applicant had produced no writing or receipt from the owners to show that the was a tenant. The receipt alleged to have been given by Ajit Singh was, according to the plaintiff, a forged document. It was also unstamped and could not be taken in evidence against third parties. The applicant had produced no objective evidence such as entry in voters’ list, birth registers, school records, ration card, etc., to substantiate his claim that he was in possession. The bank challans were of odd amounts unrelated to the rent at which the premises is alleged to have been taken on rent by the applicant. The municipal taxes did not appear to have been paid in respect of the premises in question. The application was, therefore, unsustainable on the facts as the applicant has been unable to put up even a prima facie case to show that he had possession or any interest in the propertv. The applicant was simply trying to take advantage of the absence of the owners and the defendants and obstructing the plaintiff from. getting possession of this property and was delaying the conduct of the suit by raising frivolous pleas seeking to raise objections in regard to court fees valuation, asking for interrogatories and so on. The application should, therefore, have been dismissed.
(11) This con,tention cannot be accepted. It will not be correct at this stage to go into the merits of the applicant’s case and a detailed appraisal of the evidence produced by him. All we are concerned with is to see whether he has been able, prima facie, to show that he has an interest in the subject matter of the suit and that his presence is necessary to effectively decide the controversy in suit. I think the applicants has done this. His claim is that he has been the tenant of Sohan. Singh for the past 15 years and is really in possession of the premises. He has filed bank deposit slips showing that he has deposited amounts in the account of Sohan Singh between 1959 to 1961. Though the amounts are not equal and the deposits are not regular, they show a connection between the applicant and the owner of the premises. The applicant has furnished an explanation and the plaintiff has given no other explanation as’ to how these deposit came to be made. The applicant has also produced evidence to show that he has paid the property tax for the premises on a number of occasions and his explanation that this was because he was the tenant in occupation is plausible. Again, he has produced the affidavits of other persons who arc occupying the premises supporting his case. These affidavits cannot be rejected outright though their truth or otherwise can, be established only in the course of the hearing of the suit. Even ignoring the receipt allegedly given by Ajit Singh the applicant has made out a satisfactory prima facie case. Moreover, as pointed out by Shri Jain for the respondent, the allegations in the plaint regarding the possession of the first defendant are very vague. It does not give details as to who put the first defendant into possession, when and on what terms. It docs not say when the tenancy terminates and since when, the first defendant was in unauthorised possession. It does not say whether the first defendant continues to be in physical possession of the property or has locked it and gone away. No collusion between the two defendants is alleged. The report of the Local Commissioner is not helpful because he was unable to enter the premises. The fact that the applicant did not have key of the front lock was not significant in view of the admission that one of the front locks was put by the plaintiff and it is not clear when. and why he did it. The name plate of the first defendant is the subject matter of controversy and cannot by itself be against the applicant who agrees that the first defendant was himself there. The absence of evidence by the applicant in the form of ration, card and the like is explained as due to the fact that he was residing in No. 12/4 and that the present premises had also been occupied by him. and his son. Leaving all matters in controversy aside the applicant has led sufficient evidence prima facie. to support his case that he was the tenant in respect of the property. The contention of Shri Marwaha, therefore, cannot be accepted.
(12) Shri Marwaha then contends that the applican,t cannot be allowed to join in the suit under Order I Rule 10 of the Code of Civil Procedure for three reasons : (A)Order I Rule 10 can be invoked by a party to the suit or the court on its own. motion but not by a third person : (b) The issue in the suit filed by the plaintiff was whether the first defendant was a trespasser and the plaintiff as owner could recover possession from his and the presence of the applicant was not necessary to decide this issue and; (c) The Plaintiff in a suit is dominus litus and he cannot be made, against his consent, to fight a third party other than the defendant imp leaded by him.
(13) Of these, the first objection is clearly untenable. Order I Rule 10 can be invoked not only by the parties to the suit but by the Court suo motu. But the Court can act only when some circumstances are brought to its notice by some party to show that it is necessary to implead some other party also. The application serve this purpose and it the Court finds’ that the application makes out a case for impleading a third party ; the Court can proceed to do so. All the decided cases, relied upon by other sides, show’ that third parties also have made applications, successfully as well as unsuccessfully depending upon. the Facts, under Order I Rule 10 and these have been considered by Courts.
(14) For his third proposition, Shri Marwaha referred to a number of decisions. In Vialhialinga v. Sadasiva. A.I.R 1926 Madras 836(1), the Secretary of State for India in Council applied to be imp leaded in a suit by a private party against a religious endowment and because it raised contentions as to the validity and vires of Madras Hindu Religious Endowments Act. The plea was rejected. In the course of the judgment, Srinivasa lyengar J. observed :— “I did not understand (either Counsel) to argue that the applicant was a necessary party. ….If it is to be only a question of a permissible party, then on principle it follows that such cannot generally be ordered when it is opposed by the person to fight whom he is brought on the record. . The principle is even stronger in the case of a plaintiff as against whom another defendant is sought to be added. It is the plaintiff who comes to court alleging a cause of action as against him. The very basic principle of judgments inter parties is that the judgments are not judgments in rem but declaratory and operative only as between them. The plaintiff being generally dominus litus. I fail to see on what principle of justice he can be compelled to fight against some other litigant not of his own choice unless such a person is required by a positive rule of law.”
The same principle was reiterated in and Banarsi Dass v. Pannalal, . In the last mentioned case. Sarkaria J. observed : “……ASa rule. the Court should not add a person as a ., defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litus. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief”.
(15) But what Shri Marwaha overlooks is that this is only the normal and general, but not invariable, rule. The opposition of the plaintiff cannot be the only deciding factor. Had that been so, the reference in Rule 10(2) to applications by other parties to the suit and sue motu action of the Court would be rendered nugatory. Even in the case before the Madras High Court the learned Judge also proceeded to consider how far the Secretary of State could be said to be a proper party and came to the conclusion that he was not. The correct approach, I think with respect, has been set out in the words of Surkaria J. in the Banarsi Dass case from which an extract has been, quoted above. The learned Judge referred to a difference of judicial opinion among the High Courts on the question whether the Court, has power to implead a new party when the plaintiff is opposed to the addition. Prefacing his own opinion with the words : “I would prefer to steer a middle course and draw the golden mean”, the learned Judge sets out the normal rule in the words extracted earlier and then continues: “If opposition by the plaintiff to the addition of partics is to be disregarded as a rule, it would be putting a premium on the undesirable practice of third parties intruding to ventilate their own grievances, into a litigation commenced by one at his own expense against another. The word ‘may’ in sub-rule (2) imports a discretion. In exercising that discretion, the Courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Only in exceptional cases, where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties, will it add a person as a defendant without the consent of the plaintiff.”
The decisions relied upon by Sri Marwaha do not, in my opinion, support the position that an application, of this type is liable to be dismissed merely on the ground that the plaintiff is opposed to it. That would be a relevant, but not conclusive, consideration.
(16) The true is to be found in the language of the rule itself. The Court will have to consider whether the presence of the proposed party is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions included in the suit. On this aspect, Sri Marwaha contends that the question involved in the suit instituted by the plaintiff was whether the first defendant was a trespasser and so the plaintiff was entitled to recover possession, of the premises from him and that in order to determine this issue the presence of the applicant was not necessary. In the Madras case of Vaithilinga Pandara Sannidhi Audhina Karthar-Tiruvaduthurai Adhinam v. Sadasiva lycr and others, (AIR, 1926 Madras 836(1) earlier cited, the learned Judge was of opinion that “there is neither principle nor authority that can be discovered for regarding such an expression ‘as all the questions involved in a suit’ appearing in a rule relating to joinder of parties as absolute and not relative.” the whole scheme of the Civil Procedure Code pointed to a suit as between definite parties and an adjudication as one only binding them. The learned Judge observed : “If a plaintiff should claim certain property, and it should be regarded that the question involved in the suit is generally whether he is the owner of the property and not whether as against any other particular person, he is entitled to certain rights over property, very serious consequences are sure to ensure and procedure in our Courts of law is certain to become exceedingly complicated and much more disastrously prolonged than it is at present.” and cited Moser v. Marsden (1892) Ch. 487(5), and Norris v. Beazley (1877)2 C.P.D. 80(6). This narrow interpretation has, however, not found general acceptance. In the Madras High Court itself, much earlier, a Division Bench had observed, in Vydienadayyan v. Sitaramayyan I.L.R. 5 Madras 52(7) : “To accept the more restricted interpretation involves the addition of words which we do not find in the section, namely, “between the parties to the suit,” and there can be few, if any questions which cannot be determined between the parties to the suit one way or the other, and of which the determination, if they be material, will, as between the parties to the suit, not be final. On, the other hand, the interpretation warranted by the terms would enable the Court to avoid conflicting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to litigation respecting them.”
This wider interpretation has been adopted in Secy. of State and another v. M. Murugesa Mudaliar & others , Vanijiappa Goundan v. N. P. V. L. R. Annamalai Chettiar and others (A.I.R. 1940 Madras 69)(9), Sriramamurthy v. Venkatasubba Rao (1956 Andhra Law Times 917)(10), Raiza Begum v. Sahebzadi Anwar Begum and others (A.I.R. 1958 A.P. 195)(ll) affirmed by the Supreme Court in (12), Sampatbai w/o Ambaram and another v. Madhusingh Gambhirji and Daltari Prasad Naik and others v. Umakanta Nayak and others (A.I.R. 1971 Orissa 44)04). In the Sriramarthy case. Viswanatha Sastri. J. summarised the effect of Order I rule 10 as follows : “The expression ‘questions involved in the suit’ in O.1 R. i()(2) means not merely the questions which are involved in the suit as between the parties originally impleaded. The object of the provision is that the real dispute raised in the suit should be decided in the presence of all the parties interested in the dispute and for that purpose they should be brought before the Court. O I R 10(2) was framed to ensure that the dispute, might be finally determined at the same time in the presence of all the parties interested without the delay and expense of several .action and trials and inconclusive adjudications.”
I am, therefore, unable to accept the narrow, interpretation of O I R 10(2) contended for by Sri Marwaha. Actually, I may point out that even on the narrower construction pleaded for by the petitioner, the applicant will be entitled to succeed for the question, between the parties, is whether the first defendant was the tenant of the plaintiff who had overstayed after the termination of the tenancy and the plea that the first defendant was in possession, as a subtenant of the applicant, is one that has to be considered for the effective determination, of that question.
(17) The Courts, therefore, in exercising their discretion under O I R 10 implead parties who have a direct and immediate interest in the dispute in controversy in the suit. On the one hand, as warned by Sarkaria J. in the Benarsidass case the Court should be chary of adding parties merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter. Thus, in Moser v. Marsden, 1892-1 Ch. 487, the leading English case, a person whose interests, in a commercial sense, were individually affected was refused permission to intervene. That was also the consideration in the Punjab case. In Mahuva Municipality, Mahuva v- Mehta Kiritkumar Urnedchand and others it was held that the body for whose benefit certain land is proposed lo be acquired cannot be said to have any interest in the subject matter of a suit by a person challenging the validity of the acquisition. The decision of this Court dated December 23, 1977 in C.M. 1677/77 in ‘ C.W.P. 1424/74 (16) was also a case where the’ applicant had no direct legal interest in the subject matter of the Writ petition. In V.R.S.S. Chidambaram Chettiar v. P.L.N.K. Subramaniam Chettiar and others (A.I.R. 1927 Madras 834)(17) the Court refused to implead a second plaintiff to permit a triangular duel ”in which one plaintiff shoots at the other, and both at the defendant”. On the other hand. where the party sought to be imp leaded has a direct legal interest such as rights or status or property it would be inequitable not to allow the matter to be fought out between all the interested parties completely and effectively. Thus, in the Razia Begum case (AIR 1958 A.P. 195). the plaintiff had sued to be declared as the legally wedded wife of the defendant but the Court permitted two others claiming to be the legally wedded wife and son of the respondent to be imp leaded as defendants on the plea that the plaintiff and defendant were fighting a collusive action with an ulterior purpose, the result of which would seriously affect their right’s. This decision was affirmed by the Supreme Court in , where it was held “that in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject matter of the litigation”. That is satisfied in the present case. The applicant’s case is that the plaintiff is trying to fight a mock action against a non-existent tenant to get a decree for possession of the property which would be utilised to the detriment of the applicant who claims to be in possession. It is not without significance that the first defendant is ex parte in the action. Suppose he had appeared and contested the suit stating that he had been only a sub-tenant of the applicant to whom he had handed over possession, the applicant could have been imp leaded in the suit; or. again, suppose the plaintiff had sought to implead the applicant also slating that though his claim was one against the first defendant he would like to implead the second defendant also to have a final determination of the issue of possession once for all, surely such an application, would have been allowed (Cf Mahabir Prasad Singh and another v. Narmedeshwar Prasad Singh & others . I’ is not logical to refuse the same relief on the same plea because it is requested for by the third party. Sri Marwaha says that any decree he might obtain in the action would not bind the applicant and preclude him from defending himself in proceedings for recovery of possession in case he is truly in possession. But that is exac’ly what O.1 R. 10 is intended for to prevent multiplicity of proceedings when the question can be completely and effectively decided in the presence of all the parties.
(18) All that is necessary for the Court at this stage is to be satisfied prima facie that the applicant has a genuine interest in the subject matter of the suit and that he has a bona fide and plausible claim which can be conveniently and effectively considered in the suit itself. (See Arjan Singh and others v. Kartar Singh and others, Air 1975 Punjab & Haryana 184)(19). These requirements are satisfied in the present case.
(19) For the reasons above mentioned, I am of opinion that the trial court was right in allowing the application under Order I Rule 10. In the view I have taken it is unnecessary to consider the alternative ‘ plea of Sri Jain relying on and that, even assuming that the trial court had erred in law in exercising the discretion under the rule in favor’ of respondent and against the applicants, that would not justify interference with the order in revision under Section 115 of the Civil Procedure Code as no question of jurisdiction is involved.
(20) The Civil Revision Petition is, therefore, dismissed with costs.
Legal Tutor 