A tenant who is not a party to ejectment proceedings is not bound by the decree passed against another tenant and can file a suit for declaration of tenancy rights and injunction against dispossession.

Sukhdev Singh Kang, J.

1. Basheshar Nath, petitioner, filed an application under Section 13 of the East Punjab Urban Rent Restriction Act (hereinafter called the Act) for ejectment of his tenant, Smt. Surjit Kaur widow of Bakhtawar Singh. Initially, Bakhtawar Singh was the tenant. He died on June 8, 1976 leaving behind his widow Smt. Surjit Kaur, his daughter Smt. S. Bikram and other heirs. The Rent Controller passed a decree for ejectment on the 20th of January, 1979. The appeal filed by Smt. Surjit Kaur against this order was dismissed by the Appellate Authority on the 10th of August, 1979. It has also been stated at the bar that the revision petition filed by her was also dismissed by this Court.

2. Smt. Bikram had filed a suit for injunction restraining Bashesher Nath, petitioner, from ejecting her in pursuance of the decree passed against Smt. Surjit Kaur, her mother, on the ground that she was the owner of the 3/4th share of the suit property and the decree of ejectment had not been passed against her. This suit was dismissed, in default on the 27th of October, 1979. Previously, an ad interim stay order had been granted in her favour.

3. On the 30th of October, 1979, Smt. S. Bikram filed another suit for declaration that she had inherited the tenancy rights of her deceased father Bakhtawar Singh and was in occupation of the house as a tenant and the order of Rent Controller has no effect on her rights. She also sought an injunction restraining the defendant from dispossessing her in execution of the ejectment order passed by the Rent Controller. She filed an application under Order XXXIX, Rules 1 and 2 read with Section 15 of the Civil procedure Code, for issuance of ad interim injunction. An ad interim injunction was granted. However, after the defendant filed a written statement, this temporary injunction was vacated. Smt. S. Bikram filed an appeal against this order. This appeal was accepted by the Learned Additional Distt. Judge, Ludhiana. He set aside the order of the trial court and issued an order that the parties should maintain status quo regarding possession. Dissatisfied with this order. Basheshar Nath has filed this revision petition.

4. Mr. V.P. Sarda, the learned counsel for the petitioner, has strenuously argued that the present suit is collusive one and has been filed mala fide to defeat the decree obtained by the petitioner. He has stated that this suit was not competent in view of the provisions of order IX, rule 9 of the Civil Procedure Code. The earlier suit on the same cause of action had been dismissed by the trial Court. Therefore, the subsequent suit was not maintainable. He has also contended that the case is not covered by order XXXIX, rule 1, Civil Procedure Code, because that rule applies only to those cases where effort is made to take possession of immovable property forcibly and illegally. It does not apply to the case where valid decree has been obtained and possession is sought to be obtained in execution of such decree.

5. On the other hand, Mr. Vijay Jhanji, the learned counsel for the respondent-plaintiff, has argued that the petitioner deliberately did not implead Smt. Bikram as respondent in the ejectment proceedings. After the death of her father, she inherited the rights of tenancy. She became a tenant in her own right. It was the duty of the petitioner to implead her. Since he did not implead her, she was not bound by the decree passed against her mother. The earlier suit had been filed for a declaration to the effect that she was the owner. The cause of action in the earlier suit was entirely different from the cause of action in the subsequent suit. Order XXXIX, rule 1 Civil Procedure Code, squarely applies to the facts of the present case. In any case, it is contended by the learned counsel that there is not jurisdictional error in the judgment of the learned lower Appellate Court and the revision petition is liable to be dismissed.

6. In view of the authoritative prono