1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3018 OF 2008
Kanaklata Das & Ors. ….Appellant(s)
VERSUS
Naba Kumar Das & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final
judgment and order dated 21.09.2006 passed by
the High Court of Kolkata in C.O. No.1759 of 2006
whereby the High Court allowed the application filed
by respondent No.1 herein and reversed the
judgment and order dated 15.12.2005 passed by
the Judge, Small Causes Court, Kolkata in
Ejectment Suit No.1615 of 2000 wherein the Trial
Court dismissed the application filed by respondent
No.1 herein under Order 1 Rule 10(2) of the Code of
2
Civil Procedure, 1908 (hereinafter referred to as “the
Code”) for impleadment as Plaintiff in the pending
ejectment suit.
2. The controversy involved in this appeal is short
and it would be clear from the few relevant facts
mentioned hereinbelow.
3. The appellants are the plaintiffs whereas
respondent Nos. 2 to 5 are the defendants in an
Ejectment Suit out of which this appeal arises.
4. The appellants have filed a suit for ejectment
being Ejectment Suit No.1615/2000 against
respondent Nos. 2 to 5 before the Small Causes
Court at Calcutta for their eviction on the grounds
of non-payment of rent, subletting, and bona fide
need of the suit premises for their personal use
under the provisions of the West Bengal Tenancy
Act. Respondent Nos. 2 to 5 have entered
appearance and are contesting the suit which is
pending.
3
5. In the Ejectment Suit, respondent No. 1 herein
filed an application under Order 1 Rule 10(2) of the
Code praying therein that he may be allowed to
become the co-plaintiff along with the appellants.
Respondent No. 1 sought his impleadment alleging
that he is a member of the appellants’ family and
being so, has a right, title and interest not only in
the suit premises but also in other family properties
as one of the co-owners. It is essentially on these
allegations and with a view to protect his interest in
the suit premises, respondent No. 1 sought his
impleadment in the suit.
6. The said application for impleadment made by
respondent No. 1 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 rise to filing of this appeal by way of special
leave in this Court against the order of the High
Court by the appellants (plaintiffs).
4
7. Therefore, the short question, which arises for
consideration in this appeal, is whether the High
Court was justified in allowing the application filed
by respondent No. 1 under Order 1 Rule 10 (2) of
the Code thereby permitting him to become
co-plaintiff in the Ejectment Suit filed by the
appellants against respondent Nos. 2 to 5 for their
eviction from the suit premises.
8. Heard Mr. Ranjan Mukherjee, learned counsel
for the appellants and respondent No.1, who
appeared in-person.
9. Having heard the learned counsel for the
appellants and respondent No. 1, in-person, who
alone is the contesting respondent in this appeal
and on perusal of the record of the case, we are
inclined to allow the appeal and while setting aside
the impugned order of the High Court, restore the
order of the Trial Court with observations
hereinbelow.
5
10. In other words, we are inclined to dismiss the
application filed by 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 question involved in this appeal, which need
to be taken into consideration while deciding the
question arose in this appeal. These principles are
mentioned infra.
12. First, in an eviction suit filed by the plaintiff
(Landlord) against the defendant(Tenant) under the
State Rent Act, the landlord and tenant are the only
necessary parties.
13. In other words, in a tenancy suit, only two
persons are necessary parties for the decision of the
suit, namely, the landlord and the tenant.
14. Second, the landlord (plaintiff) in such suit is
required to plead and prove only two things to
enable him to claim a decree for eviction against his
tenant from the tenanted suit premises. First, there
exists a relationship of the landlord and tenant
6
between the plaintiff and the defendant and second,
the ground(s) on which the plaintiff-landlord has
sought defendant’s-tenant's eviction under the Rent
Act exists. When these two things are proved,
eviction suit succeeds.
15. Third, the question of title to the suit premises
is not germane for the decision of the eviction suit.
The reason being, if the landlord fails to prove his
title to the suit premises but proves the existence of
relationship of the landlord and tenant in relation to
the suit premises and further proves existence of
any ground on which the eviction is sought under
the Tenancy Act, the eviction suit succeeds.
16. Conversely, if the landlord proves his title to
the suit premises but fails to prove the existence of
relationship of the landlord and tenant in relation to
the suit premises, the eviction suit fails. (See-Dr.
Ranbir Singh vs. Asharfi Lal, 1995(6) SCC 580).
17. Fourth, the plaintiff being a dominus litis
cannot be compelled to make any third person a
7
party to the suit, be that a plaintiff or the defendant,
against his wish unless such person is able to prove
that he is a necessary party to the suit and without
his presence, the suit cannot proceed and nor can
be decided effectively.
18. In other words, no person can compel the
plaintiff to allow such person to become the
co-plaintiff or defendant in the suit. It is more so
when such person is unable to show as to how he is
a necessary or proper party to the suit and how
without his presence, the suit can neither proceed
and nor it can be decided or how his presence is
necessary for the effective decision of the suit.
(See-Ruma Chakraborty vs. Sudha Rani Banerjee
& Anr., 2005(8) SCC 140)
19. Fifth, a necessary party is one without whom,
no order can be made effectively, a proper party is
one in whose absence an effective order can be
made but whose presence is necessary for a
complete and final decision on the question involved
8
in the proceeding. (See-Udit Narain Singh
Malpaharia vs. Additional Member Board of
Revenue, Bihar & Anr., AIR 1963 786)
20. Sixth, if there are co-owners or co-landlords of
the suit premises then any co-owner or co-landlord
can file a suit for eviction against the tenant. In
other words, it is not necessary that all the
owners/landlords should join in filing the eviction
suit against the tenant. (See-Kasthuri
Radhakrishnan & Ors. vs. M. Chinniyan & Anr.,
2016(3) SCC 296)
21. Keeping in mind the aforementioned well
settled principles of law and on examining the
legality of the impugned order, we find that the
impugned order is not legally sustainable and hence
deserves to be set aside.
22. In our considered opinion, respondent No. 1,
who claims to be the co-sharer or/and co-owner
with the plaintiffs (appellants herein) of the suit
property is neither a necessary and nor a proper
9
party in the eviction suit of the appellants against
respondent Nos. 2 to 5. In other words, such
eviction suit can be decreed or dismissed on merits
even without the impleadment of respondent No.1.
23. In the eviction suit, the question of title or the
extent of the shares held by the appellants and
respondent No. 1 against each other in the suit
premises cannot be decided and nor can be made
the subject matter 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 to the suit
premises can be gone into but rather is an
ejectment suit filed by the appellants against
respondent Nos. 2 to 5 for their eviction from the
suit premises.
25. Therefore, the Lis in the suit is between the
appellants on the one hand and respondent Nos. 2
to 5 on the other hand and the decision in the suit
would depend upon the question as to whether
10
there exists any relationship of landlord and tenant
between the appellants and respondent Nos. 2 to 5
in relation to the suit premises and, if so, whether
the grounds pleaded in the plaint for claiming
eviction of respondent Nos. 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 that respondent No. 1 is neither a necessary
and nor a proper party in the suit.
27. We, however, make it clear that any finding
whether directly or indirectly, if recorded by the
Trial Court touching the question of title over the
suit property, would not be binding on respondent
No.1 regardless of the outcome of the suit and
respondent No. 1 would be free to file an
independent 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
11
claim partition and separate possession of his share
by metes and bounds in all such properties.
28. In view of the foregoing discussion, the appeal
succeeds and is allowed. The impugned order is set
aside and the order of the Trial Court is restored.
29. As a consequence, the application filed by
respondent No. 1 under Order 1 Rule 10(2) of the
Code in the aforementioned ejectment suit is
dismissed.
30. The Trial Court is directed to decide the
ejectment suit on merits in accordance with law
expeditiously.
………...................................J.
[R. K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
January 25, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3018 OF 2008
Kanaklata Das & Ors. ….Appellant(s)
VERSUS
Naba Kumar Das & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final
judgment and order dated 21.09.2006 passed by
the High Court of Kolkata in C.O. No.1759 of 2006
whereby the High Court allowed the application filed
by respondent No.1 herein and reversed the
judgment and order dated 15.12.2005 passed by
the Judge, Small Causes Court, Kolkata in
Ejectment Suit No.1615 of 2000 wherein the Trial
Court dismissed the application filed by respondent
No.1 herein under Order 1 Rule 10(2) of the Code of
2
Civil Procedure, 1908 (hereinafter referred to as “the
Code”) for impleadment as Plaintiff in the pending
ejectment suit.
2. The controversy involved in this appeal is short
and it would be clear from the few relevant facts
mentioned hereinbelow.
3. The appellants are the plaintiffs whereas
respondent Nos. 2 to 5 are the defendants in an
Ejectment Suit out of which this appeal arises.
4. The appellants have filed a suit for ejectment
being Ejectment Suit No.1615/2000 against
respondent Nos. 2 to 5 before the Small Causes
Court at Calcutta for their eviction on the grounds
of non-payment of rent, subletting, and bona fide
need of the suit premises for their personal use
under the provisions of the West Bengal Tenancy
Act. Respondent Nos. 2 to 5 have entered
appearance and are contesting the suit which is
pending.
3
5. In the Ejectment Suit, respondent No. 1 herein
filed an application under Order 1 Rule 10(2) of the
Code praying therein that he may be allowed to
become the co-plaintiff along with the appellants.
Respondent No. 1 sought his impleadment alleging
that he is a member of the appellants’ family and
being so, has a right, title and interest not only in
the suit premises but also in other family properties
as one of the co-owners. It is essentially on these
allegations and with a view to protect his interest in
the suit premises, respondent No. 1 sought his
impleadment in the suit.
6. The said application for impleadment made by
respondent No. 1 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 rise to filing of this appeal by way of special
leave in this Court against the order of the High
Court by the appellants (plaintiffs).
4
7. Therefore, the short question, which arises for
consideration in this appeal, is whether the High
Court was justified in allowing the application filed
by respondent No. 1 under Order 1 Rule 10 (2) of
the Code thereby permitting him to become
co-plaintiff in the Ejectment Suit filed by the
appellants against respondent Nos. 2 to 5 for their
eviction from the suit premises.
8. Heard Mr. Ranjan Mukherjee, learned counsel
for the appellants and respondent No.1, who
appeared in-person.
9. Having heard the learned counsel for the
appellants and respondent No. 1, in-person, who
alone is the contesting respondent in this appeal
and on perusal of the record of the case, we are
inclined to allow the appeal and while setting aside
the impugned order of the High Court, restore the
order of the Trial Court with observations
hereinbelow.
5
10. In other words, we are inclined to dismiss the
application filed by 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 question involved in this appeal, which need
to be taken into consideration while deciding the
question arose in this appeal. These principles are
mentioned infra.
12. First, in an eviction suit filed by the plaintiff
(Landlord) against the defendant(Tenant) under the
State Rent Act, the landlord and tenant are the only
necessary parties.
13. In other words, in a tenancy suit, only two
persons are necessary parties for the decision of the
suit, namely, the landlord and the tenant.
14. Second, the landlord (plaintiff) in such suit is
required to plead and prove only two things to
enable him to claim a decree for eviction against his
tenant from the tenanted suit premises. First, there
exists a relationship of the landlord and tenant
6
between the plaintiff and the defendant and second,
the ground(s) on which the plaintiff-landlord has
sought defendant’s-tenant's eviction under the Rent
Act exists. When these two things are proved,
eviction suit succeeds.
15. Third, the question of title to the suit premises
is not germane for the decision of the eviction suit.
The reason being, if the landlord fails to prove his
title to the suit premises but proves the existence of
relationship of the landlord and tenant in relation to
the suit premises and further proves existence of
any ground on which the eviction is sought under
the Tenancy Act, the eviction suit succeeds.
16. Conversely, if the landlord proves his title to
the suit premises but fails to prove the existence of
relationship of the landlord and tenant in relation to
the suit premises, the eviction suit fails. (See-Dr.
Ranbir Singh vs. Asharfi Lal, 1995(6) SCC 580).
17. Fourth, the plaintiff being a dominus litis
cannot be compelled to make any third person a
7
party to the suit, be that a plaintiff or the defendant,
against his wish unless such person is able to prove
that he is a necessary party to the suit and without
his presence, the suit cannot proceed and nor can
be decided effectively.
18. In other words, no person can compel the
plaintiff to allow such person to become the
co-plaintiff or defendant in the suit. It is more so
when such person is unable to show as to how he is
a necessary or proper party to the suit and how
without his presence, the suit can neither proceed
and nor it can be decided or how his presence is
necessary for the effective decision of the suit.
(See-Ruma Chakraborty vs. Sudha Rani Banerjee
& Anr., 2005(8) SCC 140)
19. Fifth, a necessary party is one without whom,
no order can be made effectively, a proper party is
one in whose absence an effective order can be
made but whose presence is necessary for a
complete and final decision on the question involved
8
in the proceeding. (See-Udit Narain Singh
Malpaharia vs. Additional Member Board of
Revenue, Bihar & Anr., AIR 1963 786)
20. Sixth, if there are co-owners or co-landlords of
the suit premises then any co-owner or co-landlord
can file a suit for eviction against the tenant. In
other words, it is not necessary that all the
owners/landlords should join in filing the eviction
suit against the tenant. (See-Kasthuri
Radhakrishnan & Ors. vs. M. Chinniyan & Anr.,
2016(3) SCC 296)
21. Keeping in mind the aforementioned well
settled principles of law and on examining the
legality of the impugned order, we find that the
impugned order is not legally sustainable and hence
deserves to be set aside.
22. In our considered opinion, respondent No. 1,
who claims to be the co-sharer or/and co-owner
with the plaintiffs (appellants herein) of the suit
property is neither a necessary and nor a proper
9
party in the eviction suit of the appellants against
respondent Nos. 2 to 5. In other words, such
eviction suit can be decreed or dismissed on merits
even without the impleadment of respondent No.1.
23. In the eviction suit, the question of title or the
extent of the shares held by the appellants and
respondent No. 1 against each other in the suit
premises cannot be decided and nor can be made
the subject matter 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 to the suit
premises can be gone into but rather is an
ejectment suit filed by the appellants against
respondent Nos. 2 to 5 for their eviction from the
suit premises.
25. Therefore, the Lis in the suit is between the
appellants on the one hand and respondent Nos. 2
to 5 on the other hand and the decision in the suit
would depend upon the question as to whether
10
there exists any relationship of landlord and tenant
between the appellants and respondent Nos. 2 to 5
in relation to the suit premises and, if so, whether
the grounds pleaded in the plaint for claiming
eviction of respondent Nos. 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 that respondent No. 1 is neither a necessary
and nor a proper party in the suit.
27. We, however, make it clear that any finding
whether directly or indirectly, if recorded by the
Trial Court touching the question of title over the
suit property, would not be binding on respondent
No.1 regardless of the outcome of the suit and
respondent No. 1 would be free to file an
independent 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
11
claim partition and separate possession of his share
by metes and bounds in all such properties.
28. In view of the foregoing discussion, the appeal
succeeds and is allowed. The impugned order is set
aside and the order of the Trial Court is restored.
29. As a consequence, the application filed by
respondent No. 1 under Order 1 Rule 10(2) of the
Code in the aforementioned ejectment suit is
dismissed.
30. The Trial Court is directed to decide the
ejectment suit on merits in accordance with law
expeditiously.
………...................................J.
[R. K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
January 25, 2018
