Point of Law: Tenant - Revision-applicant who is claiming to be joint tenant of property being son of late original tenant who according to revision-applicant was original tenant of premises in dispute, is neither necessary party nor proper party.

JUDGMENT :

1. Heard learned counsel for the revision-applicant.

2. The present revision under Section 25 of Provincial Small Causes Courts Act is directed against the order dated 5.12.2020 passed by Additional District Judge/Special Judge (Prevention of Corruption Act), Court No. 5, Gorakhpur in S.C.C. Suit No. 9 of 2010 (Pashupati Colonizers Vs. Chandra Bhan Tripathi) whereby the court below has dismissed the application of the revision-applicant under Order 1 Rule 10 (2) of C.P.C. for impleading him as respondent in the S.C.C. Suit No. 9 of 2010.

3. A suit for eviction has been instituted by the respondent No. 1-Pashupati Colonizers Private Limited contending inter-alia that Chandra Bhan Tiwari (since deceased) was tenant of the premise No. C-123/89 Purdilpur, District Gorakhpur. The rent of the premise has not been paid since January 2006. After the death of Sri Chandra Bhan Tiwari, the respondent Nos. 2 and 3 have been substituted as his heirs.

4. In the suit, the revision-applicant filed an application paper No. 127-Ga under order 1 rule 10 (2) C.P.C. on the ground that his father late Ram Lakhan Tiwari was original tenant of the premises in question, and after his death, he alongwith his brother late Chandra Bhan Tiwari became the joint tenant of the premises in question. Therefore, the revision-applicant is necessary and proper party in the aforesaid suit and the suit cannot be decided effectively without impleadment of revision-applicant.

5. The application paper No. 127-ga was contested by the respondent No. 1 by filing objection paper No. 131-ga wherein it is contended that the revision-applicant was never in possession of any portion of the property in dispute nor he was a joint tenant of the property in dispute. The application has been filed after 10 years from the date of institution of suit only with an intention to delay the disposal of the suit. It was further pleaded that the revision-applicant alongwith his brother had submitted affidavit 16-ga on 9.2.2011 for recall of the ex-parte order, and in the affidavit paper No. 17-ga, he had not claimed that he was ever in possession of the property in dispute. It was also stated that the revision-applicant had knowledge about the case since 7.2.2011.

6. The trial court while dismissing the application noted that the suit have been instituted in the year 2010 and the revision-applicant alongwith his brother late Chandra Bhan Tiwari had filed application 16-ga under order 9 rule 7 of C.P.C. for recalling the ex-parte order and in the objection filed against the said application, the respondent No. 1-plaintiff has stated that the revision-applicant was not recessary party as the person who is doing business in the premises in dispute was impleaded as a party, yet he did not file any impleadment application immediately thereafter.

7. The trial court also noticed the judgement of the Apex Court in the case of Suresh Kumar Kohli Vs. Rakesh Jain and another, 2018 (2) ARC 40 SC and judgement of this Court in the case of Krishna Kityal (Smt.) Vs. Kamlesh Gupta (Smt.) and another, 2008 (2) ARC 603 in concluding that the revision-applicant is neither necessary party nor a proper party as after the death of original tenant, his heirs inherited the property jointly and a decree passed against one or some of them is binding upon other tenants.

8. Challenging the impugned order, counsel for the revision-applicant has submitted that the revision-applicant is necessary and proper party and impleadment of necessary and proper party can be done at any stage of the proceedings in the interest of justice. He submits that in the facts of the present case, the court below has committed manifest error of law in not allowing the application of revision-applicant under order 1 rule 10 (2) of C.P.C. despite the fact that the revision-applicant is necessary and proper party.

9. In support of his submission, he has placed the judgement of this Court rendered in Civil Misc. Writ Petition No. 20787 of 20