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A.F.R.

Judgement reserved on 18.2.2021

Judgement delivered on 12.4.2021

Case :- S.C.C. REVISION DEFECTIVE No. - 2 of 2021

Revisionist :- Uday Bhan Tiwari

Opposite Party :- Pashupati Colonizers Private Limited & 2 others

Counsel for Revisionist :- Kamlesh Kumar Mishra

Hon'ble Saral Srivastava,J.

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

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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