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Judgment
S.P. Mehrotra, J.—This writ petition has been filed by the petitioners under Article 226 of the Constitution of India, inter alia, seeking quashing of the order dated 23102002 (Annexure No. 1 to the writ petition) passed by the learned Additional District Judge, Court No. 4, Moradabad.
The dispute relates to an accommodation situated at Chaurah Gurhutti Masuma, Natraj Hotel, District Moradabad, the details whereof have been given at the foot of the release application referred to hereinafter. The said accommodation has hereinafter been referred to as �the disputed accommodation�.
From the allegations made in the writ petition, it appears that the respondent No. 2 filed a release application under Section 21 (1) (a) of the U.P. Act No. XIII of 1972 (in short �the Act�) against the respondent No. 3. The said release application was registered as P.A. case No. 97 of 1987. A copy of the said release application has been filed as Annexure No. 5 to the writ petition.
It further appears that the said release application was allowed by the Prescribed Authority/IInd Addl. Civil Judge, Moradabad on 29101991 has been filed as Annexure No. 6 to the writ petition.
The respondent No. 3 filed an appeal under Section 22 of the Act which was registered as Rent Control Appeal No. 72 of 1991.
During the pendency of the said appeal, it appears, the petitioners filed an application for impleadment dated 1992002 under Order I, Rule 10 of the code of Civil Procedure read with Rule 22 (f) of the Rules framed under the Act, inter alia, praying for being impleaded as the opposite parties in the said release application filed by the respondent No. 2 against the respondent No. 3. A copy of the said impleadment application has been field as Annexure No. 8 to the writ petition.
It was, inter alia, alleged by the petitioners in the said impleadment application that Kunwar J.P. Singh, son of Chaudhary Dharam Singh was the owner of the disputed accommodation, and that the said J.P. Singh gave the said property and the income thereof to D.S.M. College, Kaunth, District Moradabad, and he executed the deed 2071965 in this regard and got the same registered, and that the said college was constituted by Dhyan Singh Memorial Trust; and that the petitioners were trustees of the said trust and were interested in the welfare of the said college.
It further appears that the objections were filed on behalf of the respondent No. 2 against the said impleadment application.
By the impugned order dated 23102002 passed by the learned Additional District Judge, Court No. 4, Moradabad, the said application for impleadment filed by the petitioners was rejected.
I have heard Sri Kushal Kant, learned Counsel for the petitioners and Sri Arvind Srivastava, Advocate holding brief for Sri H.N. Sharma learned Counsel for the caveator respondent No. 2.
Sri Kushal Kant, learned Counsel for the petitioners submits that the petitioners being interested persons in view of the deed dated 1971965 (Annexure No. 3 to the writ petition) ought to have been impleaded in the said release application. Learned Counsel for the petitioners further submits that in view of the conditions laid down in the deed dated 1971965 whereby rental income of the disputed accommodation was to be realized by the principal of the said college and was to be utilized for maintenance of the said college was binding on the successorin interest, namely the respondent No. 2. As such, release application could not be filed by the respondent No. 2 against the respondent No. 3.
Having considered the submissions made by the learned Counsel for the petitioners, I am unable to agree with the same.
A perusal of the deed dated 1971965 (Annexure No. 3 to the writ petition) shows that the said deed was executed by Smt. Krishna Devi and Kunwar Jitendra Pratap Singh. It was categorically stated in the said deed that the said persons, namely Smt. Krishna Devi and Kunwar Jitendra Pratap Singh were executing the said deed as the owner of the property mentioned therein. By the said deed dated 1971965, the principal of the said college was authorized to realize the rent of the property mentioned in the said deed. It was further provided that the said rental income from the property was to be used for maintenance of the said college. The relevant portion of the said deed is quoted below :
�Hence, we hereby declare and guarantee that the rental income of Rs. 6600/ per annum of the said portion of the buildings shall be paid for the maintenance degree/classes of the college in science in case the college fails to meet it guarantee and this shall stand as long as the degree college exists. That where as this deed of agreement has been executed by us in the capacity of the owners of the said property. We hereby declare that unless any of us or our successors shall make any other arrangement of Rs. 6600/ per annum as the endowment of the degree/classes in science. We or our successors will not be authorized to revoke this document.�
A perusal of the aforesaid portion of the deed shows that only rental income of the property was given for maintenance of the said college, while the said persons, namely, Smt. Krishna Devi and Kunwar Jitendra Pratap Singh continued to remain the owners of the said property. The realization of the rental income by the principal of the said college from the said property was evidently made merely on behalf of the said persons, namely, Smt. Krishna Devi and Kunwar Jitendra Pratap Singh, who continued to remain the landlords of the disputed property. The realization of the rental income from the disputed property by the principal of the said college did not entitle the principal of the said college to become landlord of the said property.
In the present case, the release application has been filed by the respondent No. 2 who claims herself to be the landlady being successorin interest of the aforesaid persons, against the respondent No. 3 as tenant of the disputed accommodation.
The release application under Section 21 (1) (a) of the U.P. Act No. XIII of 1972 is filed by the landlord against the tenant in respect of the building under tenancy. If the relationship of landlord and tenant is established and the conditions required under Section 21 (1) (a) of the Act are satisfied, then the release application may be allowed by the Prescribed Authority as has been done in the present case by the judgment and order dated 29101991. In the said release application filed by the respondent No. 2 as landlady against the respondent No. 3 as tenant, the petitioners were evidently neither necessary parties nor proper parties.
Necessary parties are the persons who ought to be joined as parties to the suit/petition/application. Such persons are necessary to the Constitution of the suit/petition/application. In the absence of such persons, on effective decree/order can at all be passed.
Proper parties are the persons whose presence before the Court in necessary to enable it to effectually and completely adjudicate upon and settle all the questions involved in the suit/petition/application.
In United Provinces v. Mt. Atiqa Begum and others, AIR 1941 FC 16, Hon''ble Sulaiman, J. laid down as follows (at page 28 of the said AIR) :
�A person would be a necessary party if he ought to have been joined, that is to say, in whose absence no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary for an effectual or complete adjudication.�
In Jamuna Beharani etc., v. Patarla Polayya Desibehera, AIR 1977 Orissa 119, it was laid down as follows (paragraph Nos. 11, 12 and 13 of the said AIR) :
�(11) It is ofcourse true that the question of non maintainability of the suit in the ground of nonjoinder of necessary parties not enabling the Court to pass an effective decree or the question of limitation or want of jurisdiction of the Court to entertain the suit and/or some other such fundamental questions which out at the root of the maintainability of the suit can be raised in the higher Court even though such questions were abandoned in the lower Court. In the present cases, the only question raised by Mr. Rao is non joinder of the deity Malikeshwar Swamy as a party to the suits. Therefore, it is to be seen whether in the facts of these cases the said deity is a necessary party in the suits or not. Mr. Y.S.N. Murty concedes that if in view of the facts of these cases and the nature of the reliefs asked for, the said deity is held to be a necessary party in the suits, then the question of non joinder of the said deity can be agitated even at this stage. Mr. Rao also concedes that if the said deity is not a necessary party in these suits, but is only a proper party, then in view of the fact that the issue regarding nonjoinder of party was given up by the defendants in the trial Court, he may not all allowed to agitate the question of maintainability of the suits on the ground of nonjoinder of the aid deity. Therefore, the moot question is whether on the facts of this case the said deity is a necessary party in these suits.
(12) In the decision reported in AIR 1955 Andhra 107, Municipal Council, Rajamundry v. Simhadri Ranganayakalu, it has been held that there is an essential distinction between a necessary party and a proper party to a suit. Necessary parties are parties necessary to the Constitution of the suit and without whom no decree at all can be passed. Proper parties are those whose presence enables the Court to agitate more effectively and completely the questions raised in the suit.
In AIR 1963 Raj 198, Dhan Singh v. Badri Prasad, while recognizing the distinction between the non joinder of a necessary party and that of a proper party in a suit, it has been held that a party is necessary for the purpose of litigation when in his absence the Court cannot pass an effective decree at all, and a party is proper whose presence would assist the Court in the adjudication of the controversy.
To the same effect are the decisions reported in AIR 1963 Ori. 186, Narahari Mohanti v. Ghanshyam Bal; AIR 1945 Pat 189, Ramchander Singh v. Raghopati Sahai and AIR 1974 Punj. and Har. 7, Bhagwan Das v. Bishan Chand.
(13) In the present cases, the suit are for the eviction of the defendants from the suit lands on the ground that they have forcibly trespassed into the suit lands. No doubt, the defendants in the suits have alleged that the aforesaid deity is the owner of the suit property and the trustee of the deity inducted them as tenants in respect of the suit lands. So, if the Court finds that effective decrees can be passed in these cases by not impleading the said deity, it is free to pronounce its judgments on the dispute presented before it and on assessing the title in question of the different parties in these cases. The judgments in these cases will be judgments in personam and not in remand will bind only the parties in these suits. The deity''s right, title or interest, if any, to the suit property cannot at all be affected by the judgments in these suits, and if really the deity is any way interested in the suit lands, it can, even after the judgments in these cases, agitate that matter in all possible manner and in all forums open to it. The judgments in these suits will not affect or bind the deity in any manner whatsoever. Except the defendants no representative of the deity has come forward to oppose the maintainability of the suits on the above ground, even though D.W. 2 was examined in these cases as an alleged trustee of the deity. Except the defendants'' allegation to that effect there is nothing convincing on record to support the said allegation. Both the Courts have, on a discussion of the evidence on record, negatived the said allegation. So, merely on such allegation of the defendants one cannot say that the said deity is a necessary party to the suits. If one is to decide the said question merely on such plea of the defendants, then the defendants in all cases will freely raise similar untenable plea to put obstacles in the way of due disposal of the suit. So on the facts of these cases and merely on the said allegation of the defendants it cannot be said that the deity is a necessary party in these suits.�
Coming now to the present case, it will be noticed that the petitioners were neither the landlords nor the tenants of the disputed accommodation. They were strangers to the contract of tenancy between the respondent No. 2 or her predecessorsin interest as the landlord and the respondent No. 3 as the tenant. Therefore, the petitioners were not necessary parties to the release proceedings under Section 21 (1) (a) of the U.P. Act No. XIII of 1972.
Further, in a release proceeding under Section 21 (1) (a) of the U.P. Act No. XIII of 1972, the questions to be adjudicated are the relationship of landlord and tenant between the parties in respect of the building in question, bona fide need of the landlord, and comparative hardships of the landlord vis avis the tenant. The presence of the petitioners, who were neither the landlord nor the tenant of the disputed accommodation, was not necessary before the Prescribed Authority/Appellate Authority under the U.P. Act No. XIII of 1972 for effectually and completely adjudicating upon and setting all the questions involved in the release application under Section 21 (1) (a) of the U.P. Act No. XIII of 1972 filed by the respondent No. 2 against the respondent No. 3. Hence, the petitioners were not proper parties to the release proceedings under Section 21 (1) (a) of the U.P. Act No. XIII of 1972.
The petitioner No. 1 has been impleaded through Rajendra Singh, the alleged trustee of the said trust, while the petitioner No. 2 Rajendra Singh claims himself to be the trustee of the said trust. The deed dated 1971965 (Annexure No. 3 to the writ petition) only provided that the rental income of Rs. 6600/ would be given for maintenance of the said college. It was further provided that unless arrangement of Rs. 6600/ per annum as the endowment of the degree/classes in science was made,the said document would not be revoked.
These grievances, in my opinion, cannot be raised by the petitioners in the release application filed under Section 21 (1) (a) of the U.P. Act No. XIII of 1972.
There is one more aspect of the matter.
It is wellestablished that the question of addition of parties under Rule 10 of Order I of the Code of Civil Procedure, is generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances. Reference in the regard may be made to the following decisions :
(1) In Razia Begum v. Sahebzedi Anwar Begum, AIR 1958 SC 886, it was held as follows (paragraph No. 13 of the said AIR) :
�(13) As result of these considerations, we have arrived at the following conclusions:
(1) That the question of addition of parties under Rule 10 of Order I, of the Code of Civil Procedure, is generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the Court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code;
(2) 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 subjectmatter of the litigation;
(3) Where the subjectmatter of a litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy;
(4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Sections 42 and 43 of the Specific Relief Act;
(5) In cases covered by those statutory provisions, the Court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the Court has reasons to insist upon a clear proof apart from the admission;
(6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the Court, but generations to come, and in view of that consideration, the rule of ''present interest'', as evolved by case law relating to disputes about property does not apply with full force; and
(7) The rule laid down in Section 43 of the Specific Relief Act, is not exactly a rule of res judicata. It is narrower in one sense and wider in another.� (Emphasis supplied)
(2) In Jivan Lal Damodardas Wani v. Narayan Usha Sali, AIR 1972 Bom 148, it was laid down as under (Paragraph No. 2 of the said AIR) :
�(2) ................The wide terms of Order I, Rule 10 (2) have given rise to several conflicting decisions of various Courts in regard to its interpretation, but having considered the authorities that were cited before me in the course of the hearing of this revision application. I think the following propositions emerge therefrom :
(1) That the question of addition of parties under Order I, Rule 10, Civil P.C. is generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case (AIR 1958 SC 886 paras 7, 13 and 14):
(2) That in a suit relating to property, like the present one in order that a person may be added as a party, he should be shown to have a direct interest in the subjectmatter of the litigation (AIR 1958 SC 886, paras 8 and 13);
(3) In exercising its discretion under Order I, Rule 10, Civil P.C. the Court would not �ordinarily� add a party without the concurrence of the plaintiff. (41 Bom. LR 249 at p. 256) : AIR 1939 Bom. 188). I am bound by that decision of a Division Bench of this Court, and I respectfully agree with the same because the plaintiff is a dominus litus as far as the litigation in question is concerned. From this is would follow that it is only in exceptional cases that a party would be added as a party defendant to the suit without the concurrence of the plaintiff (AIR 1969 Punj. 57 para 9).
(4) The Court would add a person as a partydefendant to a suit without the concurrence of the plaintiff to that suit only where the party sought to be added is a necessary party a distinguished from a mere proper party. This is the view which a single Judge of the Punjab High Court has taken in the case of Banarasi Das v. Pannalal, AIR 1969 Punj 57, para 9 cited above, after considering the various authorities on the point, and it is a view with which I am in agreement, since a person can be joined as a partydefendant to a suit without the concurrence of the plaintiff only in exceptional cases, the only line that the Court can draw to distinguish the ordinary rule from an exceptional case would be to distinguish between a �property party� and a �necessary party�. This distinction has been recognized in Order I, Rule 10 Civil P.C. itself it has been held by a single Judge of this Court that a real owner is not a necessary party to a suit by the benamidar, but is only a proper party (197072 Bom. LR 827).
(5) A necessary party is, as has been stated in Order I, Rule 10 (2) Civil P.C. itself a party whose addition is absolutely necessary in order to enable the Court to adjudicate effectually and completely on the matter in controversy between the parties. That has been interpreted, in my opinion rightly, to mean that no decree could be passed in the suit without affecting the rights of the party who is sought to be added and the presence of that party is necessary for an effectual adjudication of the questions involved in the suit. It is only when both those conditions are fulfilled that a party could be said to be a necessary party to a suit (vide AIR 1971 Orissa 44; AIR 1960 Madh Pra. 84 and (1956) 1 All ER 273).
(6) In all the decisions cited above, the application to be added as a party was made by the party himself who was sought to be added and Mr. More on behalf of the appellant sought to distinguish those case on that ground. In my opinion, however, if such party is a necessary party, as stated above, it makes no difference as to who makes the application for the addition of such party, and indeed, under the very wide terms of Order I, Rule 10 (2) Civil P.C., the Court may even add such party suo motu.�
(3) In a Gyaneshwar Rao v. Mahmood Sareef and another, AIR 1982 A.P. 155, It was held as follows (paragraph No. 10 of the said AIR) :
�(10) On a conspectus of the above case, the principles that could be said to emerge in regard to application of the provisions enacted in subrule (2) of Rule 10 of Order I, CPC and in particular the expressions �whose presence before the Court may be necessary�, and �in order enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit� are :
(1) �Settle all the questions involved in the suit� should be construed to mean, not restricting the scope between the parties to the suit, but to a wider area concerning the subjectmatter of the suit involving even the third party''s claim and interest.
(2) The question of addition of parties under Rule 10 (2) of Order I is generally not one of initial jurisdiction but of a judicial discretion which has to be exercised in view of the facts and circumstances of each case. The jurisdictional aspect is in the limited sense contemplated under Section 11.5 of the CPC.
(3) For effectual and complete adjudication of the questions involved in the suit, the presence of a third party, even if is not necessary, but if proper, should be allowed to be added as a party if applied for.
(4) In a suit relating to property, the person to be added as a party should have a direct interest as distinct from a commercial interest in the subjectmatter of the litigation.
(5) Where the subjectmatter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy.
(6) The rule laid down in Section 43 of the Specific Relief Act is not exactly a rule of res judicata. It is narrow in one sense and wider in another.� (Emphasis supplied)
(4) In Ajai Prakash Singh v. Abhai Prakash Singh and others, 1984 AWC 289, it was laid down as follows (paragraph No. 14 of the said AWC) :
�(14) The question of addition of parties under Order I Rule 10 of the Code is not one of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. In the present case I find that the impugned order does not suffer from any error of jurisdiction. The Court below after taking into consideration the legal position, has passed the order of transposition of defendants 6 to 8 as plaintiffs for deciding the claims effectively between the parties who were already on record. The matter relates to management of the affairs of a public trust, and of appointment of trustees on the vacancy having been occurred, upon the death of Sri Vijai Prakash Singh who was appointed by District Judge to be Sarvarahkar of the aforesaid trust. Sri Vijai Prakash Singh died on 191979 and thereupon the present suit was filed after obtaining leave to sue under Section 92 of the Code for appointment of trustees by Suresh Prakash Singh and others. Thus, in my opinion, the learned Court below has committed no error of fact, law or jurisdiction in passing the impugned order to transpose defendants 6 to 8 as plaintiffs from the array of defendants, so that the question of appointment of Sarvarahkar of the trust be considered and decided on merits.� (Emphasis supplied)
In Mt. Bindru v. Sada Ram and others, AIR 1960 J and K 67 (para 18), it was laid down that a party who comes with an application to be addeded as a party at a very late stage, need not be impleaded as a party in a litigation which has progressed considerably.
In the present case, the release application was filed in the year, 1987. The said release application was allowed by the order dated 29101991, and thereupon, the respondent No. 3 filed an appeal under Section 22 of the Act which was registered as Rent Control Appeal No. 72 of 1991. After about 11 years of pendency of the said appeal, the petitioners filed the said application for impleadment dated 1992002. The application for impleadment was thus, filed at a highly belated stage, and the rejection of the said application by the learned Additional District Judge, Court No. 4, Moradabad by the impugned order dated 23102002 was sound exercise of discretion. No interference, in my opinion, is called for with the impugned order dated 23102002.
In view of the aforesaid discussion, I am of the view that no illegality or perversity has been committed by the learned Additional District Judge, Court No. 4, Moradabad in passing the impugned order dated 23102002. The writ petition lacks merits and the same is dismissed accordingly.