- Bookmark
- Share
- CaseIQ
Dr. A.K Roy v. J.C Roy Choudhury And Another Opposite Parties.
Factual and Procedural Background
The order dated 10-6-1980 passed by Sri D.K Bhattacharjee, the learned Munsif of the 4th Court, Sealdah, allowed an application under Order 1, Rule 10 of the Civil Procedure Code (C.P.C) filed by Opposite Party No. 2, Smt. Kalpana Roy Choudhury, to be added as a defendant in Title Suit No. 412 of 1979, an ejectment suit. The landlord-petitioner challenged this order through the present revision.
The petitioner landlord alleged that Opposite Party No. 1 was his tenant at a monthly rent of Rs. 150/-, and after serving a notice to quit dated 25-5-1979, the tenant failed to vacate the premises. Consequently, the landlord instituted the suit which proceeded ex parte due to the tenant's absence.
Subsequently, on 20-3-1980, Opposite Party No. 2 applied to be added as a defendant, asserting that she was the wife of the eldest son of Opposite Party No. 1 and that her husband was the real tenant, while Opposite Party No. 1 was merely a benamdar (nominee) who did not pay rent. The matrimonial dispute between the husband and wife was pending in another court, and the husband had not taken steps to protect the interests of his wife and their two minor daughters in the ejectment suit. The learned Munsif allowed the application, overruling the landlord's objection.
Legal Issues Presented
- Whether Opposite Party No. 2, who claims to be the wife of the real tenant and in actual occupation, can be added as a defendant in an ejectment suit under Order 1, Rule 10 C.P.C, despite not being the original tenant named in the suit.
- Whether a benamdar (nominee) tenant's wife, in the absence of the real tenant, has locus standi to represent the real tenant's interest in the ejectment proceedings.
- The scope and interpretation of Order 1, Rule 10 C.P.C regarding the joinder of parties in litigation involving benami tenancies and related interests.
Arguments of the Parties
Petitioner (Landlord)
- Opposite Party No. 2 is an absolute stranger to the suit and has no locus standi to be added as a party in an ejectment suit where only landlord and tenant are necessary parties.
- The landlord's advocate contended that the joinder of Opposite Party No. 2 was improper.
Opposite Party No. 1
- Supported the landlord's contention and questioned the propriety of the impugned order allowing Opposite Party No. 2 to be added.
Opposite Party No. 2
- Asserted that Opposite Party No. 1 was a benamdar for her husband, the real tenant who paid rent from his salary.
- Produced evidence from petitions filed under Section 125 Cr.P.C and Section 24 of the Hindu Marriage Act indicating Opposite Party No. 1 was dependent on her husband and had no independent income.
- Argued that she was in actual occupation and had a direct interest in the litigation.
- Invoked legal precedent allowing even a stranger with direct legal or equitable interest to be impleaded as a party.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| G.M.V Krishnamachari v. M.D Dhanalakshmi Ammal, AIR 1968 Mad 142 | Permitting joinder of parties who have direct interest, legal or equitable, even if strangers to the suit. | Supported the proposition that Opposite Party No. 2, though initially a stranger, had sufficient interest to be joined. |
| Razia Begum v. Anwar Begum, AIR 1958 SC 886 | Scope of Order 1, Rule 10 C.P.C – A person may be added as party if having direct interest in subject matter. | Reinforced the requirement of direct interest for party joinder, which was satisfied by Opposite Party No. 2. |
| Ragho Prasad Gupta v. Shri Krishna Poddar, AIR 1969 SC 316 | Effect of benami tenancy – decisions against benamidar bind the real owner unless benamidar fails to represent real owner's interest. | Established that the wife can represent the real tenant's interest in absence of the owner. |
| Niranjan Kumar v. Dhyan Singh, AIR 1976 SC 2400 | Admissibility of oral evidence under proviso (4) to Section 92 of the Evidence Act to prove real tenant different from ostensible tenant. | Supported acceptance of evidence showing Opposite Party No. 1 was benamdar and real tenant was the husband. |
| A.C Bhattacharya v. Arun Kumar Roy, (1961-1962) 65 Cal WN 1175 | Benami tenancy may exist without landlord's knowledge; once found, it negates landlord’s claim of transfer of tenancy. | Used to show that the real tenant's interest must be considered and that benami tenancy affects landlord’s rights. |
Court's Reasoning and Analysis
The court examined the principle underlying Order 1, Rule 10 C.P.C, which allows joinder of parties who have a direct interest in the subject matter of the litigation. The court recognized that though the ejectment suit originally named only the ostensible tenant (Opposite Party No. 1), the real tenant was her husband and that Opposite Party No. 1 was a benamdar. The wife (Opposite Party No. 2), being in actual occupation and having a direct interest, was entitled to be joined as a defendant to ensure complete and effective adjudication.
The court noted that the husband was not protecting the interests of Opposite Party No. 2 or their minor children in the pending matrimonial suit, thus justifying her joinder. The court referred to authoritative Supreme Court decisions affirming that a benamidar’s interests bind the real owner unless it is shown otherwise, and that oral evidence is admissible to prove the real tenant’s identity.
Rejecting the narrow view that only parties originally named can be involved, the court endorsed a wider interpretation of Order 1, Rule 10, emphasizing the avoidance of multiplicity of suits, prevention of conflicting decisions, and the need for finality in litigation. The learned Munsif’s order allowing joinder was thus upheld as proper and not subject to interference.
Holding and Implications
The revision petition challenging the order allowing Opposite Party No. 2 to be added as a defendant is dismissed.
The direct effect of this decision is that Opposite Party No. 2 remains a party to the ejectment suit, enabling the court to adjudicate fully on all interests involved, including those of the real tenant represented by his wife. No new precedent was set beyond affirming existing principles regarding benami tenancies and party joinder under Order 1, Rule 10 C.P.C.
The order dated 10-6-1980 passed by Sri D.K Bhattacharjee, the learned Munsif. 4th Court, Sealdah allowing the application under Order 1, R. 10 C.P.C filed by the opposite party No. 2 Smt. Kalpana Roy Choudhury to be added as a defendant to the suit for ejectment, being Title Suit No. 412 of 1979 has been challenged by the landlord-petitioner under the present revision.
2. According to the petitioner. Opposite party No. 1 was a tenant under him in respect of the premises in suit at a monthly rental of Rs. 150/- per month and he served a notice dated 25-5-1979 on the opposite party No. 1 to quit the premises in suit on and from 1-7-1979. But he failed to vacate, hence the suit. He, however, did not appear to contest the suit, and as such the suit was fixed for ex parte hearing.
3. On 20-3-1980, the opposite party No. 2 filed the application under O. 1, Rule 10 C.P Code for being added as a defendant, contending inter alia, that she is the wife of the eldest son of Opposite party No. 1, and the real tenant of the premises in suit was her husband, Tushar Kanti Roy Choudhury, and the Opposite party No. 1 was simply a benamdar and her husband all along paid rent.
4. A matrimonial suit being Matrimonial Suit No. 800 of 1980 is pending between the husband and the wife Opposite Party No. 2 in the Court of the District Judge, 24-Parganas. So the husband was not taking any step in the suit to safeguard the interest of the wife as well as that of two minor daughters. Overruling the objection raised by the petitioner, the learned Munsif by the impugned order allowed the application.
5. It is contended by Mr. S.P Roy Chowdhury the learned Advocate for the petitioner that the Opposite Party No. 2 was an absolute stranger to the suit and she had no locus standi to be added as a party to an ejectment suit, in which the landlord and the tenant are only necessary parties.
6. Mr. Asis Chandra Bagchi, the learned Advocate for the Opposite Party No. 1 supporting the petitioner also questions the propriety of the impugned order.
7. Mr. M.N Nag, the learned Advocate for the Opposite Party No. 2 contends that the Opposite Party No. 1 is the benamdar of his son Tushar Kanti Choudhury husband of O.P No. 2 who pays the rent of the house on drawing House Rent Allowance from his office (Shipping Corporation of India). He refers to the copy of extract from paragraph 5 of the petition dated 3-11-1979 filed by Tushar Kanti Choudhury before the Judicial Magistrate, Barrackpore, in Case No. 155 of 1978 under Section 125 Cr. P.C and to the copy of extract from paragraph 8 of the petition dated 17-3-1981 under Section 24 of the Hindu Marriage Act filed by Tushar Kanti; wherein the father. Opposite Party No. 1 was described as a dependent of the petitioner, thereby implying that the father had no income of his own. It is also contended that the allegation of the Opposite party No. 2 that the Opposite Party No. 1 was the benamdar of his son has been substantiated. It is further contended that the Opposite party No. 2 being in actual occupation of the premises in suit is most interested in the litigation, as neither O.P No. 1 nor his son is in actual occupation. According to him even a stranger to the suit, who has direct interest, legal or equitable in subject matter of dispute can be impleaded as a party. Reference is made to the decision in the case of G.M.V Krishnamachari v. M.D Dhanalakshmi Ammal, reported in AIR 1968 Mad 142.
8. Reference is also made to the decision of the Supreme Court in Razia Begum v. Anwar Begum, reported in AIR 1958 SC 886 in which the scope of Order 1, Rule 10 C.P.C came up for consideration. At page 891 of the report the Supreme Court observes as follows:
“There cannot be the least doubt that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit he should have a direct interest in the subject-matter of the litigation whether it raises questions relating to movable or immoveable property.”
9. Again Opposite party No. 1 has been characterised as the benamdar of the real tenant, husband of the Opposite party No. 2. In the absence of the real owner, the wife can represent his interest till the marriage is dissolved by a decree of divorce. “The decision in any proceeding brought by or against the benamidar will bind the real owner though he is not joined as a party unless it is shown that the benamidar could not or did not in fact represent the interest of the real owner in that proceeding.” Ragho Prasad Gupta v. Shri Krishna Poddar, reported in AIR 1969 SC 316. It is also held by the Supreme Court in the case of Niranjan Kumar v. Dhyan Singh reported in AIR 1976 SC 2400 that oral evidence in view of proviso (4) to Section 92 of the Evidence Act is admissible to prove that the real tenant was other than the ostensible tenant.
10. There is also a Bench decision in the case of A.C Bhattacharya v. Arun Kumar Roy reported in (1961-1962) 65 Cal WN 1175. wherein it is held that a tenancy may be benami, though it may not have been to the knowledge of the landlord, who accordingly not be bound to recognise the contender as the real tenant. But once benami is found it would dispel the landlord's allegation of transfer of the tenancy which might otherwise have disentitled the tenant to any protection under the Rent Control Legislation.
11. All these decisions are referred to only for the purpose of showing that in the case of alleged benami — the real tenant or one whose interest is affected may be a necessary party to the suit.
12. While disposing the application under Order 1, R. 10 C.P.C the Court should be guided by certain principles. The narrow view is that “the questions involved in the suit” can only be questions as between the parties to the litigation and not questions between any of the parties to the suit and a third party even though touching the subject matter of the suit. Much emphasis is laid on this view by Mr. Roy Chowdhury. It is to be seen whether the presence of O.P No. 2 before the Court would enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Mr. Nag has emphasised that the rules relating to the joinder of parties are based on the principles of avoiding multiplicity of suits and also preventing possible conflict of decisions. To these principles it may be added that there must be finality to litigation and all the controversy must be set at rest. Having taken into consideration all these principles the learned Munsif passed the order in favour of O.P No. 2. In my opinion in a proper case for ends of justice the wider interpretation of the scope of Order 1, Rule 10 should be adopted.
13. Thus in this case there is no scope for interference. The rule is accordingly discharged. There will be no order as to costs.
Order accordingly.
Alert