Important point
Divorced wife cannot claim interest in suit premises either independently or through her erstwhile husband and as such cannot be held to be a necessary or proper party in an eviction suit filed by landlord against husband tenant.

Headnote:Civil Procedure Code, 1908—Order 1 Rule 10—West Bengal Premises Tenancy Act, 1956—Section 3(1)(a)—Right of divorced wife to be impleaded as party defendant in a suit for eviction filed by landlord against husband of wife on the ground of default and sub-letting—Respondent husband had walked out of suit premises long before institution of suit—Applicant-appellant’s claim to be impleaded was based on plea that her right to maintenance would include right to residence also as recognised by Sections 3 and 18 of Hindu Adoption and Maintenance Act—While dissolving marriage of applicant in a mutual consent divorce petition Court ordered maintenance for minors only—Appellant’s husband was contesting the eviction proceedings—No material showing landlady had recognised appellant as sub-tenant—Court had no power to add a person as party who was neither a necessary nor a proper party—Impugned order dismissing application suffered no illegality.
Held : The case on hand is a case of divorced wife. It is true that divorced wife is also a wife. We have already dealt with the case of the appellant and her right to contest or defend herself in the pending eviction proceedings. We have already held that she has no right to contest or defend herself nor a right to file and prosecute the eviction proceedings. There is no privity of contract between the appellant and the landlady. The tenancy is in favour of the appellant’s husband. The Family Court has granted a decree for divorce on payment of certain sum by way of maintenance. As a matter of fact, the appellant’s husband, the tenant is contesting the Rent Control proceedings and has filed a written statement denying the claim of the landlady. It was argued by Ms. Kamini Jaiswal on behalf of the appellant that the appellant was recognised by the landlady as a sub-tenant. In support of the said submission, she placed reliance on the letter written by the landlady to the appellant on 18.12.1989. This letter, in our opinion, will be of any aid or assistance to the appellant. It has been stated in that letter that the appellant has been paying the rent on behalf of one Duttas and occupying the said accommodation. The appellant was requested to get a confirmation in writing that he has no interest in the ground floor accommodation of the house in question and surrender the possession of the same to the landlady so that the agreement could be entered into with the appellant on fresh terms if the appellant proposed to continue to stay there. The letter was concluded by saying that until these formalities are completed the occupation of the ground floor accommodation by the appellant is unauthorised and illegal. We, therefore, cannot agree with the submission of learned counsel for the appellant that the landlady has so recognized the appellant as sub-tenant. In para 35 above, this Court deals with the case of a divorced wife. We have already extracted para 35. For the foregoing discussion, we are of the opinion that the Court has no jurisdictional power to add a person as a party who is neither a necessary party nor a proper party. The appellant in the status of divorcee cannot claim interest in the suit premises either independently or through her erstwhile husband and as such she cannot be held to say that she is a party without whose presence the court cannot adjudicate and pass the decree. She is, therefore, not a necessary party. The appellant is also not a person whose presence is necessary to enable the Court effectually and completely to adjudicate all the questions involved with the suit. In view of the discussion made above, we find merit and substance in the submission made by counsel for the respondents. We are of the opinion that the trial Court and the High Court did not commit any jurisdictional error nor acted with material irregularity in dismissing the application under Order 1 Rule 10 C.P.C. filed by the appellant. (Paras 23 to 26)

Judgement Key Points

Key Points: - The appellant (divorced wife) sought to be impleaded under Order 1 Rule 10 CPC in an eviction suit; trial and high court dismissed; Supreme Court upheld dismissal, holding divorced wife cannot claim interest in suit premises independently or through erstwhile husband, and has no privity with landlady. (!) (!) (!) (!) - The court clarifies that a person can be a necessary or proper party only if required for complete adjudication; sub-tenants and others may be proper parties in certain contexts, but the appellant was not a necessary nor a proper party. (!) (!) (!) (!) - Under West Bengal Premises Tenancy Act, 1956, Section 13(1)(a) concerns eviction for subletting; the appellant was not shown to be a sub-tenant recognized by landlady; mere maintenance rights including residence do not by themselves create a tenancy or right to contest eviction against the tenant. (!) (!) (!) (!) (!) - The judgment discusses maintenance provisions under Hindu Adoptions and Maintenance Act, 1956 (Sections 3, 18, 23) to determine whether maintenance rights extend to residence; however, the court still held the divorced wife cannot claim a right to contest or be a party to eviction simply on maintenance grounds. (!) (!) (!) (!) - The appeal is dismissed; impugned orders are not interfered with. (!) (!)

What is the legality of impleading a divorced wife as a party defendant in an eviction suit against her former husband under Order 1 Rule 10 CPC?

What are the criteria for determining whether a divorced wife is a necessary or proper party in eviction proceedings under West Bengal Premises Tenancy Act, 1956?

What is the court’s position on whether maintenance rights including residence can entitle a divorced wife to remain in tenancy premises or contest eviction proceedings?

Judgment

Dr. AR. Lakshmanan, J.—The appellant, who is an unsuccessful intervenor in both the courts below, is the divorced wife of the recorded sole tenant (second respondent herein) who is also the sole defendant in the suit filed by the first respondent herein - Sudha Rani Banerjee.

2. The instant appeal is against the judgment and order dated 26.09.2000 passed by the High Court of Calcutta in C.O.No. 582 of 2000 rejecting the appellant’s application for being added as a party defendant under Order 1 Rule 10(2) of the C.P.C. The High Court concurred with the judgment and order dated 02.02.2000 passed by the IIIrd Civil Judge, Alipore. The High Court rejected the plea of the appellant that she is directly interested in the tenanted suit premises by way of her entitlement towards maintenance which includes residence as per the Hindu Adoptions and Maintenance Act, 1956.3. The facts of the case, in brief, are as follows:-

As already stated the action arises out of a suit for ejectment filed on 28.03.1992 on the ground of default, subletting without the prior written consent of the contesting first respondent herein (plaintiff landlady). Her case, very briefly, is that after dissolution of the marriage, the appellant is no longer a part of the proforma respondent’s family having the status of a rank outsider/stranger and she was in illegal occupation of the suit premises in contravention of the statutory provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as ‘the Act’). The proforma respondent/husband has admittedly effaced himself from the suit premises long prior to the institution of the suit retaining any control of suit premises. It is the case of the contesting respondent that the appellant is in illegal occupation without the prior written consent of the landlady and, therefore, has attracted the provisions of Section 13(1)(a) of the Act and has become liable for eviction.

4. The sole defence taken in the suit is that the son and daughter are entitled to the tenancy right and virtually can step into the shoes of the recorded tenant who is still alive and contesting the suit who is long back walked out of the suit premises parting with exclusive legal possession to the appellant.

5. The appellant filed application under Order 1 Rule 10(2) C.P.C. for being impleaded as a party defendant before the Civil Judge, Alipore on 17.12.1999 almost 8 years after the institution of the suit. The Civil Judge dismissed the appellant’s application on 02.02.2000. The appellant, thereafter, moved the High Court in civil revisional jurisdiction and the High Court, by its judgment and order dated 26.09.2000, rejected the appellant’s application concurring with the finding of the courts below and finding no infirmity therein. Being aggrieved, the appellant has preferred the above appeal in this Court.

6. We heard Ms. Kamini Jaiswal, learned counsel for the appellant and Mr. Rana Mukherjee, learned counsel for the respondents.

7. Learned counsel for the respective parties took us through the pleadings, annexures and the orders passed by the courts below and other relevant records.

8. Ms. Kamini Jaiswal, learned counsel for the appellant, made the following submissions:-

1) that the appellant being the divorced wife continues to enjoy the status akin to that of licensee under her husband in respect of tenancy of her husband pursuant to the provisions of Sections 3 and 18 of the Hindu Adoptions and Maintenance Act, 1956;

2) that by precluding the appellant from contesting the suit, the suit would be decreed ex parte to the detriment of the appellant and her minor children who even after the said decree of divorce continue to have a right of residence in the suit premises and cannot be dispossessed except in accordance with law;

3) that the High Court has failed to appreciate that even after the passing of a decree of divorce even though the marital status of the husband and wife is brought to an end, the divorced wife still has

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2005 Supreme(SC) 1293

Important pointDivorced wife cannot claim interest in suit premises either independently or through her erstwhile husband and as such cannot be held to be a necessary or proper party in an eviction suit filed by landlord against husband tenant.

What is the legality of impleading a divorced wife as a party defendant in an eviction suit against her former husband under Order 1 Rule 10 CPC?

What are the criteria for determining whether a divorced wife is a necessary or proper party in eviction proceedings under West Bengal Premises Tenancy Act, 1956?

What is the court’s position on whether maintenance rights including residence can entitle a divorced wife to remain in tenancy premises or contest eviction proceedings?

Cases Referred (10)

Important point
Divorced wife cannot claim interest in suit premises either independently or through her erstwhile husband and as such cannot be held to be a necessary or proper party in an eviction suit filed by landlord against husband tenant.