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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. KULKARNI, J.
Minalini Lalit Modi - Petitioner
Versus
M/s. Kishinchand Chellaram & Others - Respondents
Writ Petition No. 2446 of 2017
Decided On : 19-09-2017
IMPLEADMENT - ORDER 1 RULE 10 CPC - TENANCY RIGHTS - BENAMI TRANSACTION - DOMINUS LITUS - LIMITATION - REVISION - MAINTAINABILITY - BOMBAY RENT ACT, 1947 - SECTION 4 OF THE BENAMI TRANSACTION (PROHIBITION) ACT, 1988 - ORDER 21 RULE 100 CPC - ORDER 6 RULE 17 CPC - ORDER 1 RULE 10 SUB-RULE (5) CPC - SECTION 29(3) OF THE OLD RENT ACT - SECTION 34(4) OF THE NEW RENT ACT - FULL BENCH OF THIS COURT IN THE CASE “BHARTIBEN SHAH & ANR. VS. GRACY THOMAS & ORS.” (2013 (2) BOM.C.R. 1) - SECTION 18 OF THE BOMBAY RENT ACT, 1947 - SECTION 10 OF THE TRANSFER OF PROPERTY ACT - ORDER 9 RULE 4 OF CPC - M.S. SHASTRI VS. HILLA M. BATLIWALLA & ANR. (1989 (1) BOM.C.R.138) - GULAB BABUSAHEB BARGIRI VS. EXECUTIVE ENGINEER, M.S.E.B. & ORS. (2001 (1) Mh.L.J. 63) - ALKAPURI CO-OP. HOUSING SOCIETY LTD. VS. JAYANTIBHAI NAGINBHAI (DECEASED) THROUGH LRS. (AIR 2009 SC 1948) - UMAR ALLI CHOUGALLE & ORS. VS. DR. A.H.K. JUMANI (CIVIL REVISION APPLN.NO.1953 OF 1962, ORDER DT.2.3.1968) - SH. SRIRANG SUBRAIA KAMAT TARCAR & ORS. VS. THE ADMINISTRATIVE TRIBUNAL & ORS. (ALL INDIA RENT CONTROL JOURNAL VIII-1991(2), 252) - CHANDRAKANT DHARMA BHONU VS. PANDURANG RAMCHANDRA DANDEKAR & ANR. (2004 Vol.106(4) BOM.L.R. 680) - SAVITRI DEVI VS. DISTRICT JUDGE, GORAKHPUR & ORS. (AIR 1999 SC 976) - NANDKISHOR SAVALARAM MALU (DEAD) THROUGH L.RS. VS. HANUMANMAL G. BIYANI (DEAD) THROUGH L.RS. (2017 (3) Mh.L.J. 37) - RAMESH HIRACHAND KUNDANMAL V. MUNICIPAL CORPORATION OF GR.BOMBAY (1992)2 SCC 524) - JIVANLAL DAMODARDAS WANI VS. NARAYAN UKHA SALI (AIR 1972 BOM. 148) - VIMADALAL, J.
Fact of the Case:
Petitioner sought to be impleaded as a defendant in a suit instituted by respondent No.1-landlord (plaintiff) seeking eviction of respondent no.2-tenant from the suit premises on the ground of causing damage to the said tenanted premises. The petitioner's case was that she is the 'real tenant' of the suit flat and not the respondent No.2. The petitioner's impleadment application was opposed by respondent No.1-landlord by filing a reply. Respondent No.1 denied that the petitioner was at any time a tenant or a real tenant of the suit flat or that the tenancy was created in her favour. The learned trial Judge allowed the impleadment application. The appellate bench of the Small Causes Court by the impugned order set aside the order passed by the learned trial judge.
Finding of the Court:
The appellate bench was correct in concluding that the adjudication of her rights in the suit of respondent No.1-landlord would be changing the scope of the suit. The petitioner could have approached the appropriate court to seek a declaration of her tenancy rights. The suit in question was filed in the year 1982, the application of the petitioner was not an application under Order 6 Rule 17 of the C.P.C., but under Order 1 Rule 10 of the C.P.C., and therefore, the period of limitation was also required to be considered, as the petitioner for the first time had made such a plea of tenancy in the suit in the year 2006, and thus the application of the petitioner was required to be held as barred by limitation.
Issues: 1. Whether the petitioner was a necessary or proper party to the suit. 2. Whether the principle of dominus litis was considered in the correct perspective as per the settled principles of law on this doctrine. 3. Whether the application for impleadment was filed at a belated stage and the learned trial Judge was swayed away by the alleged arrangement during the divorce proceedings of the petitioner and her husband of the year 1989. 4. Whether the plea that the petitioner was real a tenant was a plea of a “benami tenancy”, only to seek an entry in the suit proceedings, and the same was not sustainable under the rent legislation, as also in view of the decision of this Court in M.S. Shastri Vs. Hilla M. Batliwalla & Anr. (supra). 5. Whether the petitioner could have approached the appropriate court to seek a declaration of her tenancy rights. 6. Whether the suit in question was filed in the year 1982, the application of the petitioner was not an application under Order 6 Rule 17 of the C.P.C., but under Order 1 Rule 10 of the C.P.C., and therefore, the period of limitation was also required to be considered, as the petitioner for the first time had made such a plea of tenancy in the suit in the year 2006, and thus the application of the petitioner was required to be held as barred by limitation.
Ratio Decidendi: 1. The plaintiff is 'dominus litus' that is a master, or having dominion over the case and is a person who has carriage and control of an action. 2. A plea of benami transaction qua a lease cannot be countenanced by the law itself. 3. The revision application was maintainable inasmuch as the order passed by the trial court, in the present case affected the substantive rights of respondent No.1, as it is a case where the petitioner sought to foist herself to be impleaded as a defendant, a consequence of which was that the nature, character and the scope of the plaintiff's suit for eviction and possession, against respondent No.2 was sought to be altered, the petitioner raising an issue of declaration that she is the real tenant of the suit flat.
Final Decision: The Writ Petition is dismissed.
1. Rule returnable forthwith. Respondents waive service. By consent of the parties heard finally.
2. The learned trial judge of the Small Causes Court at Mumbai by an order dated 25 August 2009 allowed an application (Eviction Notice) filed by the petitioner seeking a relief to implead her as a defendant in a Suit (RAE Suit No.743/2805 of 1982Eviction Suit) instituted by respondent No.1landlord (plaintiff). The appellate bench of the Small Causes Court by the impugned order dated 21 October 2016 has set aside the order of the learned trial judge in a Revision Application filed by respondent No.1. The petitioner being aggrieved by the said order of the appellate bench is before this Court in the present proceeding under Article 227 of the Constitution.
3. In nutshell the facts are : About thirty five years back Respondent No.1 had instituted R.A.E. Suit No.743/2805 of 1982 seeking eviction of respondent no.2-tenant from the suit premises namely a flat on the northern side, on the third floor, Carmichael House, Carmichael Road, Mumbai, (for short 'the suit flat') interalia on the ground of causing damage to the said tenanted premises. Surprisingly as also unfortunately this suit since 1982 is pending adjudication before the learned Judge of the Small Causes Court at Bombay. On 28 September 2006, by filing interim notice No.2205 of 2006, being an application under Order 1 Rule 10 of the Code of Civil Procedure, the petitioner sought herself to be impleaded as a party defendant to the suit, on the ground that the petitioner is the 'real tenant' of the suit flat and not the respondent No.2.
4. The petitioner's case in the impleadment application was thus: the petitioner, respondent no.1 (plaintiff), and respondent no.2 (defendant) are related to each other. The building, Carmichael House originally comprised of ground plus five floors having two flats on each floor. In or about 1955, petitioner's father Mr. Pessumal Aswani rented out one flat on the first floor of the said building at which time respondent no.1 (plaintiff) was not the owner of the building. In the year 1965, the suit building was acquired by three trusts and three individuals namely Mrs. Lachmibai Sewakram Trust, Mrs. Nirmalabai Murli Trust, Mr. Pishu Tahilram Chellaram (since deceased) and Mr. Hotchand G. Advani (since deceased). The petitioner's father was rented out two flats on the fourth and fifth floor which were internally connected with each other. On renting out these two flats, the petitioner's father gave up tenancy of the first floor flat.
5. The petitioner was married to one Mr. Jack Sagrani, who was residing in Nigeria and London. After her marriage, the petitioner was residing in London and would visit India quite often as many of the relatives, friends, acquaintances, including her parents were in Mumbai. The petitioner's husband had no place of residence in Mumbai, therefore the petitioner was in search of an accommodation. The petitioner also wanted a flat in the vicinity of the suit building as her parents were residing in the suit building. In or about 1979 the suit flat being vacant and as the landlords were desirous of letting the same, one Mr. Murli Chellaram who was in-charge of the affairs of the building and who was aware that the petitioner was on a look out for a residential accommodation in Mumbai, informed the petitioner that the suit premises were available to be let out. Mr. Murli Chellaram however stated that it will not be possible nor advisable to make out a rent receipt in the petitioner's name, as the petitioner's father was already having three flats in the suit building. Thus, making a rent receipt in the petitioner's name for the fourth flat will not be advisable and will also create problems as another relative of the owner, was also keen on renting out the said flat. Mr. Murli Chellaram therefore suggested that the suit premises could be let out to the petitioner but the petitioner should try to find out some other pe
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