Dinesh Sharma v. Laxmi Narayan

1. Challenge by means of this petition under Article 227 of the Constitution of India is to the impugned order of the trial court dated 24.8.2013 which has dismissed the application filed by the petitioner under Order 1 Rule 10 CPC for being added as a defendant in a suit for possession filed by the respondent no.1 herein against the respondent no.2 herein.

2. A reference to the written statement filed by respondent no.2 in the suit shows that respondent no.2 in preliminary objection no.3 has stated that he was not the tenant in the suit shop; the suit shop was in the tenancy of one 2014:DHC:3768 Dinesh Kumar Sharma; and Dinesh Kumar Sharma was already in possession of the suit shop. Dinesh Kumar Sharma is the present petitioner/applicant under Order 1 Rule 10 CPC.

3. In a suit for possession such as the present, in case the petitioner/applicant would be in physical possession of the property, there is every threat that after taking a decree of possession against the existing defendant/respondent no.2, the respondent no.1 can in execution physically throw out the petitioner/applicant in execution of the decree by surprising the petitioner/applicant by the filing of execution. The execution will naturally be only against the respondent no.2 herein, who is the present defendant. The respondent no.2/present defendant has shown a clear-cut disinterest in the subject matter of the suit by categorically stating that he is not the tenant and he is not in possession of the suit premises, and which are in possession of the applicant. Clearly, therefore the applicant is a necessary party and merely because the respondent no.1 may say that no relief is claimed against the present petitioner will not change the fact that there is every likelihood and a threat that the petitioner/applicant can by surprise be thrown out in execution of the decree against the respondent no.2.

4. No doubt, in one way the petitioner/applicant can be said to be claiming independent title, and it can also be argued by the respondent no.1 that a person such as the petitioner/applicant, can take benefit of the provisions of Order 21 Rules 96 to 106 which are available, however, merely because such a right would be available to the petitioner cannot mean that in the facts of the present case where the existing defendant/respondent no.2 has pleaded total disconnection with the suit property as also the subject matter of the suit, the applicant/petitioner should not be added as a party, inasmuch as, actually the relief of possession is only in name against the respondent no.2, but effectively will be against the petitioner/applicant.

5. In this view of the matter, the petition is allowed and the impugned order of the trial court dated 24.8.2013 is set aside. The petitioner/applicant will be added as the defendant no.2 in the suit, and will be allowed to file his written statement and contest the suit on merits. The suit will be thereafter heard and disposed of in accordance with law.

VALMIKI J. MEHTA, J AUGUST 07, 2014 KA