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HIGH COURT OF DELHI
JUDGMENT
HARSHLATA AGGARWAL ..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. M. S. Rohilla, Adv. For the Respondent : Ms. Babita, Proxy Adv. for Mr. Satya Narayan, Adv. for R-1
Mr. Sachin Kumar Jain, Adv. for R-2
1. The petitioner challenges the order dated 06.03.2020 passed by the learned Trial court in Civil Suit no. 8293/2016 titled “Harshlata Aggarwal Vs. Prabhakar Sharma” whereby the learned Trial Court allowed the application under Order I Rule 10 CPC, 1908 filed by the respondent No.2 who is stated to be the brother of the petitioner herein. [ The proceeding has been conducted through Hybrid mode ]
2. Mr. Rohilla, learned counsel appearing for the petitioner submits that it is trite in the suit for eviction, the lis pending between the CM(M) 311/2021 2 landlord and the tenant alone are the primary objective of the Trial Court to decide and the necessity of any third party does not arise.
3. Learned counsel submits that the essential question to be decided by this Court is “whether in an eviction suit, the co-owner or any other primary owner is the necessary party
4. Mr. Rohilla, learned counsel submits that the petitioner has not given the instant suit property to the respondent No.1/tenant on rent and it was already on tenancy under the late father of the parties. ”.
5. Learned counsel also submits that by virtue of the present suit, the only relief sought is of eviction and there is no dispute raised in respect of the title of the suit property.
6. Learned counsel relies upon the Codicil at page 49 of the present petition which in his submission is a Will registered by late father in favour of the parties, i.e. petitioner as well as the respondent No.2 herein.
7. Learned counsel submits that as per para 12 of the Codicil/Will dated 10.12.2009, “the petitioner was entitled to hold, possess and enjoy this property to the exclusion of other legal heirs till she is alive” and on that learned counsel submits that the right so conferred by virtue of the Will/Codicil, the petitioner has filed the instant eviction petition against the respondent No.1/tenant.
8. Learned counsel submits that it is a well settled law that even in case of admitted co-owners, the one of the co-owners can maintain a suit for eviction against the tenant.
9. Learned counsel on that basis relies upon the judgments rendered by the Hon’ble Supreme Court in K. K. Handique Vs. Member, Board CM(M) 311/2021 3 of Agriculture Income Tax, Assam reported as AIR 1966 (SC) 1191 and invites the attention of this Court to para 3 where the expression “hold” has been interpreted. On that basis, learned counsel submits that Hon’ble Supreme Court has held that meaning of hold would encompass within in itself all rights which would ordinarily be obtained upon owner of the property. Learned counsel submits that the word expressed in the Codicil/Will makes it clear that during her lifetime, the petitioner was given the liberty to enjoy the property in any manner whatsoever, which the petitioner deems fit.
10. Learned counsel further relies upon the judgment of Coordinate Bench of this Court in Arvinder Kaur Sethi Vs. Akshay Chabra & Ors. reported as (2012) 194 DLT 423, particularly para 3 which in his submission lays down the law that in a suit for recovery of possession by the landlord against the tenant, the determining factor was the relationship between the landlord and tenant and not the determination of title between two co-owners.
11. Learned counsel to buttress his arguments also relies upon the judgment of Hon’ble Supreme Court in “J. J. Lal Pvt. Ltd. Vs. N. M. Murali And Anr.” reported in AIR 2002 SC 1061 wherein the Hon’ble Supreme Court had also dismissed the applications filed on behalf of original owners, i.e., Municipal Corporation, under Order I Rule 10 CPC, 1908 for being not maintainable so far as the determination of the relationship of landlord and tenant is concerned.
12. On the basis of the aforesaid submissions and judgment, learned counsel submits that the learned Trial Court had exercised the jurisdiction which was not vested in it and has committed a material CM(M) 311/2021 4 irregularity and judicial impropriety by overlooking the settled law on this issue.
13. Per contra, Mr. Jain, learned counsel appearing for the respondent No.2 (brother of petitioner) without admitting to the contents of the Codicil/Will placed on record by the petitioner, submits that the interpretation as sought to be placed by the learned counsel for the petitioner on para 12 is not available since the said submission is subject to the fact that the petitioner had no right granted under the said Codicil/Will for alienating or transferring the property to any person by way of sale, gift, mortgage, lease except with the permission of the respondent No.2. On that basis, learned counsel submits that the respondent No.2 becomes necessary party keeping in view the fact that the permission was never obtained by the petitioner from the respondent No.2.
14. Learned counsel also submits that the said Codicil/Will, without admitting, also contained the covenant that the rent out of that property was to be divided between the petitioner and the respondent No.2 in the ratio of half and half. On that basis, learned counsel submits that the petitioner has never adhered to the said alleged distribution of rent between the petitioner and the respondent No.2. Therefore, in order to ensure that the respondent No.2 is not deprived of the legitimate right, even going by the Codicil/Will, the respondent No.2 becomes a necessary party.
15. Learned counsel invites attention of this Court to the reply filed before this Court and submits that the respondent No.2 has categorically submitted that the participation of respondent No.2 in the eviction CM(M) 311/2021 5 petition is relevant also for the purpose that the presence of respondent No.2 would facilitate the eviction process and as such the petitioner cannot have a quarrel with that.
16. Learned counsel also draws attention of this Court to para 2 of the eviction petition filed by the petitioner to show that, with the averments contained in the said paragraph, petitioner is trying to establish her own independent rights over the suit property.
17. Learned counsel submits that as a matter of fact even the rent which is being deposited by the respondent No.1/tenant herein, was also sought to be released only in favour of the petitioner without reference to the respondent No.2, thereby depriving respondent No.2 from the 50 per cent of the rental amount even if one were to go by the Codicil/Will propounded by the petitioner.
18. Learned counsel relies upon the judgment of “Moreshar Yadaorao Mahajan vs. Vyankatesh Sitaram Bhedi (D) Thr. L.Rs. & Ors., rendered by the Hon’ble Supreme on 27.09.2022 in Civil Appeal Nos.5755-5756 of 2011, reported as 2022 SCC OnLine SC 1307, whereby the Hon’ble Supreme Court in para 18 has laid down as to who is the necessary party who ought to be joined as a party in a suit before the Civil Court.
19. Ms. Babita learned counsel appears on behalf of respondent No.1/tenant and submits that the basic dispute is between the petitioner and respondent No.2 and there is no role to be played by the respondent No.1/tenant.
20. Learned counsel submits that the respondent No.1/tenant has been harassed by both petitioner and respondent No.2 in the past, in terms of CM(M) 311/2021 6 disconnection of electricity and water connection and with great difficulty respondent no.1/tenant has been able to survive such harassment. Other than that learned counsel submits that the dispute is essentially between the petitioner and respondent No.2.
21. This Court has considered the arguments as well as judgments placed on record by learned counsel appearing for the parties and also perused the record especially the Codicil/Will which has been placed by the petitioner.
22. So far as the petitioner is concerned, her definite stand is that by way of the eviction petition, she is seeking the eviction of respondent No.1/tenant and in no manner whatsoever is she attempting to exercise her right over the suit property in terms of title or ownership thereof.
23. This Court has also been informed that a suit seeking declaration, title and possession, apart from rendition of accounts bearing CS NO. 9233/2016 has already been filed by the respondent No.2 against the petitioner.
24. The fact that the petitioner has filed the suit for eviction, would obviously not confer any right or title over the suit property upon the petitioner, except the right to receive rent as a landlord. Other than that no such right can or may be conferred by the learned Trial Court which is adjudicating the eviction petition.
25. This Court has also perused the contents of para 12 of the aforesaid Codicil/Will and is of the considered opinion that the rights of the petitioner, prima facie, over the suit property is only limited and the right of giving it on rent lies with the petitioner, is subject to the permission being obtained from the respondent No.2. It is also clear that CM(M) 311/2021 7 the rent which accrues out of the property, prime facie, appears to be as per the covenant in the Codicil/Will propounded by the petitioner, divided in the ratio of half and half between the petitioner as well as the respondent No.2.
26. The said Codicil/Will has been propounded and relied upon by the petitioner and the same has been questioned and doubted by the respondent No.2 and is challenged by the respondent No.2 in the suit aforementioned.
27. The learned Coordinate Bench of this court in Arvinder Kaur Sethi (Supra) has categorically laid down that in a suit of recovery of possession by the landlord against the tenant, the determining factor was the relationship between the landlord and the tenant and there was no question of determination of title or ownership of the suit property between the co-owners. It would be apposite to extract para 3 of the aforesaid judgment:- “Having heard the learned counsel for the petitioner as also on perusal of the material available on record, I do not see any infirmity or illegality in the impugned order. It is noted that a suit was filed by the plaintiff for possession, recovery of arrears of rent as also for mesne profits and damages against defendant Dr. Wellman's Homeopathic Laboratory Limited (respondent No. 2). The suit was based on the premise of the plaintiff being the owner/landlord of the premises being Flat No. AM-4, Dilkhush Industrial Estate, G.T.Karnal Road, Delhi. In a suit for recovery of possession by the landlord against the tenant, the determining factor was the relationship between the two of landlord, and tenant and there was no question of determination of title of ownership of the suit premises. In a suit of this nature, a third person claiming himself to be the owner of the suit premises, CM(M) 311/2021 8 cannot be permitted to be impleaded, as that would not only create complication in the determination of the dispute involved between the plaintiff and the defendant, but, would involve determination of issue of title, which is not the subject matter of the suit before the court of Civil Judge. The determination of such a claim by a third person would take primary position, and the actual dispute would be relegated to the secondary one. Whether or not, the petitioner is the owner of the suit premises on the basis of sale deed, is certainly beyond the scope of present suit, filed by the plaintiff against the defendant. It is not that the applicant/petitioner may not have remedy based on her claim of ownership; but, that is not available in the suit which the plaintiff has filed against the defendant based on the premise of tenancy. Further, another important aspect that is noticed is that the applicant/petitioner had already filed a suit seeking declaration of title of the suit premises, and which is, pending adjudication. It is settled law that a party claiming a right to be impleaded, has no right to litigate its independent claim, unconnected with the suit in dispute. I do not see any reason to interfere with the impugned order of learned Civil Judge. The petition has no merit and is hereby dismissed.”
28. That apart, the Hon’ble Supreme Court in J. J. Lal Pvt. Ltd. (Supra) in para 28 has laid down as under:- “Both the sets of applications raise such controversies as are beyond the scope of these proceedings. This is a simple landlord- tenant suit. The relationship of Municipal Corporation with the respondents and their mutual rights and obligations are not germane to the present proceedings. Similarly, the question of title between Hemlata Mohan and the respondents cannot be decided in these proceedings. The impleadment of any of the two applicants would change the complexion of CM(M) 311/2021 9 litigation and raise such controversies as are beyond the scope of this litigation. The presence of either of the applicants is neither necessary for the decision of the question involved in these proceedings nor their presence is necessary to enable the court effectually and completely to adjudicate upon and settle the questions involved in these proceedings. They are neither necessary nor proper parties. Any decision in these proceedings would govern and bind the parties herein. Each of the two applicants is free to establish its own claims and title whatever it may be in any independent proceedings before a competent forum. The applications for impleadment are dismissed.”
29. It is crystal clear from the aforesaid judgment of the Hon’ble Supreme Court as well as the learned Coordinate Bench of this Court that in an eviction suit, the core issue which has to be determined, inter se, the parties, is only the jural relationship of landlord and tenant in which the question of determination of title does not ordinarily arise. In case there is any third party who is aggrieved by any such assertion by the landlord, it is for the said party to take recourse to remedies available to it under law.
30. In the present case, the respondent No.2 has already undertaken that remedy, by filing a suit for declaration, possession and also for rendition of accounts against the petitioner.
31. In view of above, the impugned order dated 06.03.2020 passed by the learned Trial Court impleading the respondent No.2 as a party/defendant to the suit CS No. 8293/2016 is quashed and set aside with no order as to costs.
32. Learned Trial Court is directed to proceed in accordance with law and dispose of the suit expeditiously. CM(M) 311/2021 10
33. In view of the above, the present petition is allowed with no order as to costs.
34. The pending application stands disposed of.
35. Judgments as noted above are taken on record.
TUSHAR RAO GEDELA, J. FEBRUARY 21, 2023