1. In this petition filed under Article 227 of the Constitution, the singular question is whether the Court below has erred in disallowing the application of the petitioner preferred under Order 1 Rule 10 CPC ?

Brief facts necessary for adjudication of this matter are as under:-

2. The plaintiff/respondent No.1 has instituted a suit for eviction and arrears of rent against defendants No.1 and 2/respondents No.2 and 3. The suit is registered as Civil Suit No.5A/2011. Written statement was filed in the said suit. The present petitioners preferred an application under Order 1 Rule 10 read with section 151 C.P.C. for their impleadment on the ground that the plaintiff is real brother of applicant No.1 and applicant No.2 is son of real brother Late Mahendra Mahadik. The said application was opposed by the plaintiff by filing reply. The Court below by impugned order dated 9.8.2011 disallowed the said application.

3. Shri D.D.Bansal, learned counsel for the petitioners submits that the relation of present petitioners with the plaintiff is not in dispute. He further submits that a partition suit (Annexure P/6) is pending before the competent Court which further shows the aforesaid relation. Learned counsel by placing reliance on a series of judgments of Apex Court and this Court submits that no suit can continue unless the consent of other co-owners is taken. In other words, it is argued that unless it is shown that the other co-owners were agreeable to eject the tenant, the suit cannot be filed and continued. In this regard, he relied on ¼2004½ 3 SCC 178 (Indian Umbrella Manufacturing Co. and others vs. Bhagabandei Agarwalla (Dead) by LRS Savitri Agarwalla (Smt.) and others; (2006) 2 SCC 724 (Mohinder Prasad Jain vs. Manohar Lal Jain); ¼2009½ 10 SCC 223 (FGP Limited vs. Saleh Hooseini Doctor and another); and, 2004 (1) MPLJ 50 (Hameeda Begam vs. Champa Bai Jain and others). He further relied on 2004 (2) MPLJ 554 (Sitabai wd/o Meghraj Ji Joshi and others vs. Kamlabai wd/o Late Swamidayalji Shukla). Shri Bansal further submits that the Court below has erred in disallowing the application whereas the petitioners were necessary parties.

4. Per Contra, Shri Vinod Bharadwaj, senior counsel assisted by Shri Vinod Bhargava submits that learned Court below has relied on an agreement dated 4.10.2006 executed between respondent No.1 and the tenant/respondent No.2. The Court below also relied on the compromise application and in terms of the said compromise shop was constructed and given to the tenant @ Rs.4000/- per month. On this basis, the Court below has rightly held that there is a clear attornement in favour of the plaintiff and rightly rejected the application. He also relied on various judgments of this Court and Supreme Court.

5. I have bestowed my anxious consideration to the rival contentions raised at the bar. At the cost of repetition, the singular question is whether petitioners were necessary parties and Court below has committed any error in rejecting the said application ?

In my opinion, the legal position cannot be doubted that the co-owners may file a civil suit for eviction if other coowners do not object to it. This principle is based on the ‘doctrine of agency’. This is also not in dispute that the relation between the plaintiff and the petitioners is admitted which is fortified by the partition suit pending before the competent court. This is settled in law that necessary party is a party without whom the matter cannot be adjudicated and no real order/judgment can be passed. The question is whether the petitioners are such parties in the eyes of law ? Although the principle of law laid down in the judgments cited by Shri Bansal cannot be disputed that a coowner or landlord cannot file a suit for eviction against the tenants if other co-owners object. However, the said ratio and judgments cited on this point do not deal with the question of impleadment of a co-owner in a suit of this nature.

6. The Calcutta High Court