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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, J.
Sunil David Kachhap son of late Peter Kachhap - Petitioner
Versus
Beronika Lalundia D/o late Kalyan Kalundia & Ors. - Respondents
W.P. (C) No. 3466 of 2017
Decided On : 20-07-2018
C.N.T. Act, 1908 – Section 46 – Code of Civil Procedure, 1908 – Order-XXII Rule 4, Order-I Rule 10 – Eviction – Petitioner-plaintiff is aggrieved of order passed in Eviction Suit by which an application filed by sister of the original defendant under Order-I Rule 10(2) CPC has been allowed. – Issue raised in the present proceeding is whether the intervener who has been made respondent no.1 in the writ petition is a necessary, or a proper party in the eviction suit, or in the counter-claim raised by her brother in the eviction suit seeking a declaration that the sale-deed is null and void. – Held, One sentence here or there would make a world of difference in the final outcome of the case. – On multiplicity of litigation, all court need to indicate here is that to avoid multiplicity of proceedings one is impleaded in a suit only when it is found that on admitted facts the party seeking impleadment has a commonality of interest with a party to the suit. – The intervener has claimed that being the legal heir and successor of late Kalyan Kalundia she has right, title and interest over half of the suit schedule property. – But this claim is not admitted by the plaintiff or the legal heirs of her brother. – Her claim over the suit property can be adjudicated in a separate proceeding, but not in the eviction suit or the counter-claim raised by her brother. – In the context of the eviction suit it is pertinent to mention that even on her own saying that she has right, title and interest in the suit property, she is not required to be impleaded there. – Whether the defendant was a tenant under the plaintiff or not is an issue which can be conclusively decided in the absence of the intervener. – And, the counter-claim raised by her brother cannot be converted into one for declaration of her right, title and interest in the suit property. – If her impleadment in the counter-claim is permitted, nature of the counter-claim would change; two diametrically opposite cause of action would be clubbed together. – Trial Judge by the impugned order has allowed the application under Order-I Rule 10(2) CPC observing that the intervener is a necessary party. – Under Order-I Rule 10(2) CPC the Court has powers to struck-off a party who has been improperly added and to add a party in the suit whose presence is necessary. – From the facts noticed hereinabove, it is apparent that the intervener is neither a necessary party nor a proper party in the eviction suit or the counter-claim. – The trial Judge has evidently committed a serious error in law. – It has exercised a jurisdiction which is not vested in it by law. – Writ Petition Allowed
The petitioner-plaintiff is aggrieved of order dated 19.04.2017 passed in Eviction Suit No.24 of 2006 by which an application filed by sister of the original defendant under Order-I Rule 10(2) CPC has been allowed.
2. Issue raised in the present proceeding is whether the intervener who has been made respondent no.1 in the writ petition is a necessary, or a proper party in the eviction suit, or in the counter-claim raised by her brother in the eviction suit seeking a declaration that the sale-deed dated 21.03.2003 is null and void.
3. Briefly stated, Eviction Suit No.24 of 2006 was instituted by the petitioner-Sunil David Kachhap for ejection of the defendant on the ground of default in payment of rent. The plaintiff has pleaded that the suit property was sold by the defendant to him through sale-deed dated 21.03.2003 and delivery of possession was given to him. The vendor who is defendant in the eviction suit was an employee under TISCO. After he superannuated from service entered into a tenancy agreement in respect of the suit schedule property which was transferred by him to the plaintiff through sale-deed dated 21.03.2003. Initially, the agreement was for a period between 01.04.2003 to September, 2006. Rent was payable by the tenant on the 1st day of each month. It is pleaded that a notice was issued to the defendant on 08.05.2006 to vacate the premises, however, when he did not vacate the suit premises, the plaintiff was constrained to institute the suit for his ejection. The defendant submitted his written-statement with a counter-claim, taking a stand that the suit is liable to be dismissed for non-joinder of State of Jharkhand which is a necessary party. Further stand taken by the defendant is that transfer of the suit property is hit by section 46 of C.N.T. Act, 1908, for he belongs to Ho community and the tenancy agreement dated 01.04.2003 was a fraudulent agreement and infact the plaintiff is neither the owner nor in possession of the suit schedule property. By way of counter-claim a decree for declaration that sale-deed dated 21.03.2003 is null and void has been sought by the defendant.
4. Issues were framed on 11.03.2008 and the plaintiff’s evidence was closed on 15.09.2009. Since no witness was examined by the defendant his evidence was closed on 20.11.2009 and the suit was fixed for arguments. It appears that in the counter-claim deficit court-fee was not deposited by the defendant and finally it was deposited on 11.02.2010. Thereafter, challenge to pecuniary jurisdiction of the court by the defendant failed on 28.09.2010. It further appears that the application under section 15 of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 was allowed by an order dated 25.01.2012 and when the defendant did not comply with the order under section 15, his defence was struck-off.
5. After death of the defendant on 30.06.2012, his legal heirs and successors were substituted under Order-XXII Rule 4 CPC and they filed their written statement-cum-counter claim on 12.08.2013. They have also taken identical stand what was taken by the original defendant in his written statement-cum-counter claim. Thereafter, the suit was again posted for arguments. At this stage, the substituted defendants filed an application for adducing evidence which was rejected as not pressed by an order dated 17.02.2016. About five months thereafter and ten years after the suit was instituted, precisely on 29.07.2016, an application under Order-I Rule 10(2) CPC was filed by Beronika Kalundia claiming that the suit schedule property was originally allotted to her father namely, Kalyan Kalundia by TISCO Limited who died leaving behind her and Kedar Kalundia, her brother. She has asserted that the suit property was never partitioned and it has remained in jointness. Claiming that she has right, title and interest over half of the suit property and if she is not made a party in the suit any decision in the suit would adversely affect her, she filed
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