Who are necessary parties in eviction suit?

IN THE HIGH COURT OF GAUHATI

Civil Revision Nos. 371, 372, 373 and 374 of 1993

Decided On: 29.08.1997

Laxmanlal Jee Mandir
Vs.
Laxmiram Agarwalla and Anr.

Hon’ble Judges/Coram:
J.N. Sarma, J.
Citation: AIR 1998 Gauhati 89

1. Civil Revision No. 371 of 1993 has been filed by the plaintiff challenging the order dated 20-8-93 passed by the Munsiff No. 2, Tinsukia in Title Suit No. 4/92 (T.S. 3/85 (old). By the impugned order the learned Munsiff allowed the prayer of Opposite Party No. 2 to be added as Pro forma-Defendant in that suit.

2. Civil Revision No. 372/93 in T. S. No. 7/92 (T.S. 4/85 old) has been filed by the plaintiff and there also by the order of the same date the Opposite Party No. 2 was added as proforma defendant in the suit, that is, (In T.S. No. 7/92 and T.S. No. 4/85 old).

3. Civil Revision No. 373/93 (In T.S. No. 24/ 92 (T.S. 3/85 old) also has been filed against the order of the same date.

4. Civil Revision No. 374 of 1993 is also filed against the orderof the same date in Title Suit No; 23/92 (T.S. No. 2/85 old).

5. The Civil Revision No. 44 of 1994 has been filed by Lakhanlalji Mandir Suraksha Samitee against the order dated 24-1-94 passed by the Munsiff No. 1 at Tinsukia in Title Suit No. 5 of 1987 and by that order the learned Munsiff did not allow the application of this petitioner to be added as party in the suit.

6. The Civil Revision No. 45 of 1994 is also filed against the order of the same date in Title Suit No. 60 of 1984 rejecting the application praying to be added as pro forma-defendant. It may be stated herein that all these suits were for ejectment of the defendant under the Assam Urban Areas Rent Control Act, 1972 and these suits are stated to have been filed on the ground of default and bona fide requirement. In such a suit the only necessary party is the landlord and the tenant, no other person has the right to intervene in such a suit. If that is allowed no suit will reach its finality and that will create a chaos and confusion.

7. The application which was filed by the Society to be added as a party under Order 1, Rule 10 of the Code of Civil Procedure, (sic) may be quoted to appreciate the contention made by this Society to be added as a party :–

“IN THE COURT OF THE MUNSIFF NO. 1 AT TINSUKIA

Title Suit No. 2 of 1-985.

Sri Lakhanlalji Mandir Suraksha Samity, a society registered under the Societies Registration Act, bearing Regn. No. 1200 of 1989-90 having its office at Daily Bazar, P.O., District–Tinsukia, Assam.

…….Petitioner

The humble petition of the petitioner under Order 1, Rule 8(A);Rule 10.C.P.C.

The petitioner above named begs to state as follows:–

1. That with the donation of large numbers of deciples, devotees and well-wishers a temple p with the deities were established on a plot of land , measuring OB-2K-17Ls. covered by Dag No. 1757((Old)/4258 (New, of P. P. No. 350(Old)/ 681 (New) of Tinsukia Town and Mouza, situated at Daily Bazar (Station Road), Tinsukia.

Thus a religious endowment was validly created by installing Bigraha (Murty) Lakhanlalji along with the deities of Shiva and Hanumanji; and thus by way of ‘Sankalpa’ Utsarga and ‘Pratishha’, dedicated the property to the deity ‘Lakshanlalji’ which became the defaulter property.

That with a view to look after and manage the aforesaid debutter properties including rented out to different tenant, (including the suit premises) a committee has been formed under the name and style of Lakhanlalji Surbksha Samittee (which is also registered under the Societies Registration Act) vide Certificate No. 1200 of 1989-90 issued by the Registrar of Societies, Assam, Guwahati.

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2. That since the Sri Chakreswar was acting adviser to the interest of the said religious endowment, and as such the Lakhanlalji Mandir Suraksha District Judge at Tinsukia, praying for declaration, rectification of records and for injunction etc., in respect of the properties of the temple including the suit premises.

3. That with the Title Suit No. 69/89 the petitioner also filed a Misc. Case No. 46/89 and the learned Assistant District Judge at Tinsukia vide order dated 7-11-89 was pleased to pass an order of ad interim injunction requiring Sri Chakreswar Das to maintain the status-quo of the property and also restraining him from raising any construction by removing or defacing the Lakhanlalji Mandir.

4. That against the aforesaid order of temporary injunction Chakreswar Das preferred an appeal No. H.A. (F) No. 8/90 before the Hon’ble High Court at Guwahati and the Hon’ble High Court vide order dated 20-3-92 was pleased to order for maintaining the status-quo of the properties till the final disposal of the injunction matter.

5. That the present suit has been filed by Sri Chakreswar Das, representing himself as the Pujari of the Religious Endowment of Sri Lakmanlalji Mandir, alias Lakmanlaljee Thakurbari, and Sri Chakreswar Das has claimed himself to be looking after and managing the properties of the temple after letting put the premises to the tenants etc. etc.

6. That though Sri Chakreswar Das has claimed himself to be the Pujari of the Sri Laxmanlaljee Thakurbari, but in fact he is acting adverse to the interest of the religion endowment, as he has got the land of the temple mutated in his personal name and that he is also not maintaining any account of the income and expenditure of the temple, including the income accrued from the house-rent and has started to convert the income of the religious endowment to his own use and benefit.

7. That the subject-matter of the present suit is included in the subject of Title Suit No. 69 of 1989 and Misc. Case No. 46/89, both of the Court of learned Assistant District Judge at Tinsukia.

8. That as such the petitioner is desirous to be impleaded in this suit as the defendant as Sri Chakreswar Das is acting adverse to the interest of the deity and the debuttar properties, and his activities has cast a cloud of doubt over the nature of the properties of the deities, which the petitioner are bound to protect under the law of the land.

9. That right, title and interest of the petitioner over and in respect of the aforesaid deputtar properties cannot be protected unless the petitioner is made a party to the present suit.

It is, therefore, prayed that your Honour may be pleased to allow the petitioner to be impleaded in the present suit as the defendant and be pleased to direct the plaintiff to furnish the copy of the plaint after amending the plaint, so that the petitioner can file the written statement to protect its right, AND be further pleased to pass such other order as deem to be fit and proper for the ends of justice.

And for this act of kindness etc. etc………”

8. As stated earlier in 4 Suits the applications were allowed, but in two other Suits the applications were rejected. Hence the Revision.

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8-A. 1 have heard Shri G.N. Sahewallah, learned Advocate for the plaintiff and Shri Khataniar, learned Advocate for the Opposite-party in Civil Revision No. 371/93,372/93,373/ 93 and 374/93 and Shri B.K. Goswami, learned Advocate in Civil Revision No. 44 of 1994 and Civil Revision No. 45 of 1994.

9. The law regarding the addition of party has been settled I only rely on the following decisions :–

(i)MANU/SC/0493/1992 Ramesh Hirachand Kundanmal, v. Municipal Corporation of Greater Bombay, wherein the Supreme Court pointed out that if addition of party means the addition of new cause of action and widening of particular issue, the party should not be added in such a situation. If joining of the party would embarass the plaintiff and is not german to the suit then also the party should not be added. The mere fact that a fresh litigation could be avoided is also no ground. Power under Order 1, Rule 10 of the Code of Civil Procedure, provides for the addition of the party. The addition of a party may be allowed when it is found by the Court that the party Sought to be added is a necessary party or a proper party in whose absence the suit cannot be decided or no effective decree can be passed. That is not the situation in the case in hand. All the Suits are for ejectment and is a fight between the landlord and the tenant, the presence of other persons irrelevant. In a suit for ejectment the only thing to be found by the Court is :– Whether there is relationship of landlord and tenant, that is, between the plaintiff and the defendant. The Court must not go to the other aspect of the matter, the Court is to find out whether the plaintiff is entitled to a decree as provided under the provisions of Assam Urban Rent Control Act, 1972. I direct that the Court in the suit for ejectment shall keep himself confined only to this aspect.
10. The next case of this is MANU/SC/0579/1994(New Red Bank Tea Co. Pvt. Ltd. v. Kumkum Mittal), wherein the Supreme Court in paragraphs 10 and 11 pointed out as follows :–

“10. The said provision empowers the Court to implead as a party to a suit a person (i) who ought to have been joined, whether as plaintiff or defendant; or (ii) whose presence before the Court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. It is not the case of respondent II that they ought to have been joined as a defendant in E.O. Suit No. 1 of 1985. Their application has been allowed by the Division Bench of the High Court on the ground that presence of respondent 11 is necessary for effectual and complete adjudication of the matter in dispute. We find it difficult to agree with this view of the High Court.
11. In the leading English case of Moser v. Marsden, Lindly L.J. has held that a party who is not directly interested in the issues between the plaintiff and the defendant but is only indicrectly or commercially affected cannot be added as a defendant because the Court has no jurisdiction under the relevant rule to bring him on record even as a proper party. The position is no different under the Indian law. As laid down by this Court, “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.” (See Razia Begum v. Sahebzadi Anwar Begum). In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay 1992 AIR SCW 846 this Court has held (SCC p. 531, para 14) (at page 851 (of AIR SCW):

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“It can not be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect ………. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action.”
11 A. It will be seen that in paragraph 11 of the Judgment, the Supreme Court relied on its earlier Judgment inMANU/SC/0003/1958Razia Begum, v. Sahebzadi Anwar Begum, wherein the Supreme Court pointed but that an application for addition can be allowed only when a person will be directly or legally interested in the matter. A person who is commercially involved shall not be allowed to be added as a party. The Supreme Court pointed that a person who wants to prosecute his own cause of action must file a suit separately usually he cannot be added as party in the suit filed by another person, as the law is that the plaintiff is the dominus litis.

12. InMANU/SC/0652/1995 Anil Kumar Singh v. Shivnath Mishra Alias Gadasa Guru. The same question was raised before the Supreme Court and the Supreme Court pointed out that it is only necessary and proper party: who can be added on an application or without an application for addition as a party. The Supreme Court further pointed out that the condition precedent is that the Court must be satisfied that the persons sought to be added as party would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle the question involved in the suit to bring a person as a party defendant the Court has to exercise the discretion in proper manner. Even the Supreme Court pointed out that in certain cases even the Court may refuse a proper party to be added as party and it is only the necessary party that the Court must. add.

13. The next case is MANU/SC/0023/1997 wherein also the same principle was reiterated. This being the position of law, I find that the application filed by the Society, Lakanlalji Mandir Suroksha Society, praying to be added as party in all these suits shall stand rejected.

14. Civil Revision Nos. 371/93, 372/93 373/ 93 and 374/93 in view of above are allowed and the impugned order shall stand quashed. The Civil Revision Np. 44/94 and Civil Revision No. 45 of 1994 shall stand dismissed.

15. Before I part with the order I make it clear that the trial Court shall not endeavour to take any decision with regard to the property of the deity, because that it not the aspect to be decided and already another suit is pending and it is necessary to avoid it in order to avoid conflict. As the suits are pending since 1984 the trial Court shall endeavour to dispose of all the suits as early as possible preferably within one year. The parties shall appear before the trial Court on 3-11-1997 to receive further instruction from the trial Court.

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