KANAKLATA DAS & ORS. versus NABA KUMAR DAS & ORS. on 25 January 2018

1. There are some well-settled principles of law on thequestion involved in this appeal, which need to be taken intoconsideration while deciding the question arose in this appeal.These principles are mentioned infra. [Para 11] [811-C]

2. First, in an eviction suit filed by the plaintiff (Landlord)against the defendant(Tenant) under the State Rent Act, thelandlord and tenant are the only necessary parties. In otherwords, in a tenancy suit, only two persons are necessary partiesfor the decision of the suit, namely, the landlord and the tenant.[Paras 12, 13] [811-D-E]

3. Second, the landlord (plaintiff) in such suit is required toplead and prove only two things to enable him to claim a decreefor eviction against his tenant from the tenanted suit premises.First, there exists a relationship of the landlord and tenantbetween the plaintiff and the defendant and second, the ground(s)on which the plaintiff-landlord has sought defendant’s-tenant’seviction under the Rent Act exists. When these two things areproved, eviction suit succeeds. [Para 14] [811-E-F]

4. Third, the question of title to the suit premises is notgermane for the decision of the eviction suit. The reason being,if the landlord fails to prove his title to the suit premises butproves the existence of relationship of the landlord and tenant inrelation to the suit premises and further proves existence of anyground on which the eviction is sought under the Tenancy Act,the eviction suit succeeds. Conversely, if the landlord proves histitle to the suit premises but fails to prove the existence ofrelationship of the landlord and tenant in relation to the suitpremises, the eviction suit fails. [Paras 15, 16] [811-F-H]

5. Fourth, the plaintiff being a dominus litis cannot becompelled to make any third person a party to the suit, be that aplaintiff or the defendant, against his wish unless such person isable to prove that he is a necessary party to the suit and withouthis presence, the suit cannot proceed and nor can be decidedeffectively. In other words, no person can compel the plaintiff toallow such person to become the co-plaintiff or defendant in thesuit. It is more so when such person is unable to show as to howhe is a necessary or proper party to the suit and how without his A

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Apresence, the suit can neither proceed and nor it can be decidedor how his presence is necessary for the effective decision of thesuit. [Paras 17, 18] [812-A-C]

6. Fifth, a necessary party is one without whom, no ordercan be made effectively, a proper party is one in whose absenceBan effective order can be made but whose presence is necessaryfor a complete and final decision on the question involved in theproceeding. [Para 19] [812-C-D]

7. Sixth, if there are co-owners or co-landlords of the suitpremises then any co-owner or co-landlord can file a suit forCeviction against the tenant. In other words, it is not necessarythat all the owners/landlords should join in filing the eviction suitagainst the tenant. [Para 20] [812-E]

8. In the light of well settled principles of law and onexamining the legality of the impugned order, the impugned orderDis not legally sustainable and hence deserves to be set aside.[Para 21] [812-F]

9. Respondent No. 1, who claims to be the co-sharer or/and co-owner with the plaintiffs (appellants herein) of the suitproperty is neither a necessary and nor a proper party in theEeviction suit of the appellants against respondent Nos. 2 to 5. Inother words, such eviction suit can be decreed or dismissed onmerits even without the impleadment of respondent No.1. [Para22] [812-G]

10. In the eviction suit, the question of title or the extentof the shares held by the appellants and respondent No. 1 againstFeach other in the suit premises cannot be decided and nor can bemade the subject matter for its determination. The reason beingthat this is not a suit between the appellants (plaintiffs) andrespondent No.1 where their inter se rights relating to the suitpremises can be gone into but rather is an ejectment suit filed byGthe appellants against respondent Nos. 2 to 5 for their evictionfrom the suit premises. [Paras 23, 24] [812-H; 813-A]

11. The Lis in the suit is between the appellants on the onehand and respondent Nos. 2 to 5 on the other hand and the decisionin the suit would depend upon the question as to whether thereHexists any relationship of landlord and tenant between the AB

appellants and respondent Nos. 2 to 5 in relation to the suitpremises and, if so, whether the grounds pleaded in the plaint forclaiming eviction of respondent Nos. 2 to 5 are established ornot. For deciding these two main questions, the presence ofrespondent No. 1 is not necessary. Respondent No.1 is neither anecessary and nor a proper party in the suit. As a consequence,the application filed by respondent No. 1 under Order 1 Rule10(2) of the CPC in the aforementioned ejectment suit isdismissed. [Paras 25, 26 and 29] [813-B-D, F-G]

Dr. Ranbir Singh v. Asharfi Lal (1995) 6 SCC 580:[1995] 3 Suppl. SCR 847; Ruma Chakraborty v. SudhaRani Banerjee & Anr. (2005) 8 SCC 140: [2005]3 Suppl. SCR 1051; Udit Narain Singh Malpaharia v.Additional Member Board of Revenue, Bihar & Anr. AIR1963 786: [1963] Suppl.SCR 676;KasthuriRadhakrishnan & Ors. v. M. Chinniyan & Anr. (2016)3 SCC 296 : [2016] 1 SCR 18 – relied on C

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3018of 2008

From the Judgment and Order dated 21.09.2006 of the High Courtof Kolkata in C. O. No. 1759 of 2006.

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Ranjan Mukherjee, Adv. for the Appellants.

Naba Kumar Das, Respondent-in-person

The Judgment of the Court was delivered by G

ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 21.09.2006 passed by theHigh Court of Kolkata in C.O. No.1759 of 2006 whereby the High Courtallowed the application filed by respondent No.1 herein and reversedthe judgment and order dated 15.12.2005 passed by the Judge, Small H

ACauses Court, Kolkata in Ejectment Suit No.1615 of 2000 wherein theTrial Court dismissed the application filed by respondent No.1 hereinunder Order 1 Rule 10(2) of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”) for impleadment as Plaintiff inthe pending ejectment suit.B2. The controversy involved in this appeal is short and it would beclear from the few relevant facts mentioned hereinbelow.

3. The appellants are the plaintiffs whereas respondent Nos. 2 to5 are the defendants in an Ejectment Suit out of which this appeal arises.

4. The appellants have filed a suit for ejectment being EjectmentCSuit No.1615/2000 against respondent Nos. 2 to 5 before the Small CausesCourt at Calcutta for their eviction on the grounds of non-payment ofrent, subletting, and bona fide need of the suit premises for their personaluse under the provisions of the West Bengal Tenancy Act. RespondentNos. 2 to 5 have entered appearance and are contesting the suit whichDis pending.

5. In the Ejectment Suit, respondent No. 1 herein filed anapplication under Order 1 Rule 10(2) of the Code praying therein that hemay be allowed to become the co-plaintiff along with the appellants.Respondent No. 1 sought his impleadment alleging that he is a memberEof the appellants’ family and being so, has a right, title and interest notonly in the suit premises but also in other family properties as one of theco-owners. It is essentially on these allegations and with a view to protecthis interest in the suit premises, respondent No. 1 sought his impleadmentin the suit.

6. The said application for impleadment made by respondent No.F1 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 riseto filing of this appeal by way of special leave in this Court against theorder of the High Court by the appellants (plaintiffs).

7. Therefore, the short question, which arises for considerationGin this appeal, is whether the High Court was justified in allowing theapplication filed by respondent No. 1 under Order 1 Rule 10 (2) of theCode thereby permitting him to become co-plaintiff in the EjectmentSuit filed by the appellants against respondent Nos. 2 to 5 for their evictionfrom the suit premises.H

8. Heard Mr. Ranjan Mukherjee, learned counsel for theappellants and respondent No.1, who appeared in-person.

9. Having heard the learned counsel for the appellants andrespondent No. 1, in-person, who alone is the contesting respondent inthis appeal and on perusal of the record of the case, we are inclined toallow the appeal and while setting aside the impugned order of the HighCourt, restore the order of the Trial Court with observations hereinbelow.

10. In other words, we are inclined to dismiss the application filedby 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 questioninvolved in this appeal, which need to be taken into consideration whiledeciding the question arose in this appeal. These principles are mentionedinfra.

12. First, in an eviction suit filed by the plaintiff (Landlord) againstthe defendant(Tenant) under the State Rent Act, the landlord and tenantare the only necessary parties.

13. In other words, in a tenancy suit, only two persons are necessaryparties for the decision of the suit, namely, the landlord and the tenant.

14. Second, the landlord (plaintiff) in such suit is required to pleadand prove only two things to enable him to claim a decree for evictionagainst his tenant from the tenanted suit premises. First, there exists arelationship of the landlord and tenant between the plaintiff and thedefendant and second, the ground(s) on which the plaintiff-landlord hassought defendant’s-tenant’s eviction under the Rent Act exists. Whenthese two things are proved, eviction suit succeeds.

15. Third, the question of title to the suit premises is not germanefor the decision of the eviction suit. The reason being, if the landlord failsto prove his title to the suit premises but proves the existence ofrelationship of the landlord and tenant in relation to the suit premises andfurther proves existence of any ground on which the eviction is soughtunder the Tenancy Act, the eviction suit succeeds.

16. Conversely, if the landlord proves his title to the suit premisesbut fails to prove the existence of relationship of the landlord and tenantin relation to the suit premises, the eviction suit fails. (See-Dr. RanbirSingh vs. Asharfi Lal, 1995(6) SCC 580).

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17. Fourth, the plaintiff being a dominus litis cannot be compelledto make any third person a party to the suit, be that a plaintiff or thedefendant, against his wish unless such person is able to prove that he isa necessary party to the suit and without his presence, the suit cannotproceed and nor can be decided effectively.

B18.In other words, no person can compel the plaintiff to allowsuch person to become the co-plaintiff or defendant in the suit. It ismore so when such person is unable to show as to how he is a necessaryor proper party to the suit and how without his presence, the suit canneither proceed and nor it can be decided or how his presence is necessaryfor the effective decision of the suit. (See-Ruma Chakraborty vs.CSudha Rani Banerjee & Anr., 2005(8) SCC 140)

19. Fifth, a necessary party is one without whom, no order can bemade effectively, a proper party is one in whose absence an effectiveorder can be made but whose presence is necessary for a complete andfinal decision on the question involved in the proceeding. (See-UditDNarain Singh Malpaharia vs. Additional Member Board ofRevenue, Bihar & Anr., AIR 1963 786)

20. Sixth, if there are co-owners or co-landlords of the suit premisesthen any co-owner or co-landlord can file a suit for eviction against thetenant. In other words, it is not necessary that all the owners/landlordsEshould join in filing the eviction suit against the tenant. (See-KasthuriRadhakrishnan & Ors. vs. M. Chinniyan & Anr., 2016(3) SCC 296)

21. Keeping in mind the aforementioned well settled principles oflaw and on examining the legality of the impugned order, we find that theimpugned order is not legally sustainable and hence deserves to be setFaside.

22. In our considered opinion, respondent No. 1, who claims to bethe co-sharer or/and co-owner with the plaintiffs (appellants herein) ofthe suit property is neither a necessary and nor a proper party in theeviction suit of the appellants against respondent Nos. 2 to 5. In otherGwords, such eviction suit can be decreed or dismissed on merits evenwithout the impleadment of respondent No.1.

23. In the eviction suit, the question of title or the extent of theshares held by the appellants and respondent No. 1 against each other inthe suit premises cannot be decided and nor can be made the subjectHmatter 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 tothe suit premises can be gone into but rather is an ejectment suit filed bythe appellants against respondent Nos. 2 to 5 for their eviction from thesuit premises.

25. Therefore, the Lis in the suit is between the appellants on theone hand and respondent Nos. 2 to 5 on the other hand and the decisionin the suit would depend upon the question as to whether there existsany relationship of landlord and tenant between the appellants andrespondent Nos. 2 to 5 in relation to the suit premises and, if so, whetherthe grounds pleaded in the plaint for claiming eviction of respondentNos. 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 thatrespondent No. 1 is neither a necessary and nor a proper party in thesuit.

27. We, however, make it clear that any finding whether directlyor indirectly, if recorded by the Trial Court touching the question of titleover the suit property, would not be binding on respondent No.1 regardlessof the outcome of the suit and respondent No. 1 would be free to file anindependent 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 claim partition and separate possession of his share by metes andbounds in all such properties.

28. In view of the foregoing discussion, the appeal succeeds andis allowed. The impugned order is set aside and the order of the TrialCourt is restored.

29. As a consequence, the application filed by respondent No. 1under Order 1 Rule 10(2) of the Code in the aforementioned ejectmentsuit is dismissed.

30. The Trial Court is directed to decide the ejectment suit on meritsin accordance with law expeditiously.

Ankit Gyan Appeal allowed.

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