KANAKLATA DAS & ORS.versusNABA KUMAR DAS & ORS.

806                      [2018]REPORTS
               SUPREME COURT    1 S.C.R. 806              [2018] 1 S.C.R.


A                        KANAKLATA DAS & ORS.
                                       v.
                        NABA KUMAR DAS & ORS.
                        (Civil Appeal No. 3018 of 2008)
B                             JANUARY 25, 2018
        [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
             Code of Civil Procedure, 1908 – Or. I, r.10(2) – Respondent
      No.1 sought permission u/Or. I, r.10(2) to become co-plaintiff in the
      ejectment suit filed by the appellants-plaintiffs against respondent
C
      Nos. 2 to 5-defendants for their eviction from the suit premises –
      Application dismissed by the trial Court – However, allowed by the
      High Court – Propriety of – Held: Not proper – Lis in the suit was
      between the appellants on the one hand and respondent Nos. 2 to 5
      on the other hand – Decision in the suit would depend upon the
D     question as to whether there existed any relationship of landlord
      and tenant between the appellants and respondent Nos. 2 to 5 in
      relation to the suit premises and, if so, whether the grounds pleaded
      in the plaint for claiming eviction of respondent Nos. 2 to 5 were
      established or not – For deciding these two main questions, the
      presence of respondent No. 1 not necessary – Respondent No.1 is
E
      neither a necessary and nor a proper party in the suit – Accordingly,
      order of the trial Court restored.
             Party – Difference between a necessary party and proper
      party – Held: A necessary party is one without whom, no order can
      be made effectively – A proper party is one in whose absence an
F
      effective order can be made but whose presence is necessary for a
      complete and final decision on the question involved in the
      proceeding.
            Allowing the appeal, the Court
G            HELD: Whether the High Court was justified in allowing
      the application filed by respondent No. 1 under Order 1 Rule 10
      (2) of the CPC thereby permitting him to become co-plaintiff in
      the Ejectment Suit filed by the appellants against respondent Nos.
      2 to 5 for their eviction from the suit premises.

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                                      806
  KANAKLATA DAS & ORS. v. NABA KUMAR DAS & ORS.                         807


      1. There are some well-settled principles of law on the           A
question involved in this appeal, which need to be taken into
consideration while deciding the question arose in this appeal.
These principles are mentioned infra. [Para 11] [811-C]
      2. First, in an eviction suit filed by the plaintiff (Landlord)
against the defendant(Tenant) under the State Rent Act, the             B
landlord and tenant are the only necessary parties. In other
words, in a tenancy suit, only two persons are necessary parties
for the decision of the suit, namely, the landlord and the tenant.
[Paras 12, 13] [811-D-E]
      3. Second, the landlord (plaintiff) in such suit is required to   C
plead and prove only two things to enable him to claim a decree
for eviction against his tenant from the tenanted suit premises.
First, there exists a relationship of the landlord and tenant
between the plaintiff and the defendant and second, the ground(s)
on which the plaintiff-landlord has sought defendant’s-tenant’s
eviction under the Rent Act exists. When these two things are           D
proved, eviction suit succeeds. [Para 14] [811-E-F]
       4. Third, the question of title to the suit premises is not
germane for the decision of the eviction suit. The reason being,
if the landlord fails to prove his title to the suit premises but
proves the existence of relationship of the landlord and tenant in      E
relation to the suit premises and further proves existence of any
ground on which the eviction is sought under the Tenancy Act,
the eviction suit succeeds. Conversely, if the landlord proves his
title to the suit premises but fails to prove the existence of
relationship of the landlord and tenant in relation to the suit         F
premises, the eviction suit fails. [Paras 15, 16] [811-F-H]
       5. Fourth, the plaintiff being a dominus litis cannot be
compelled to make any third person a party to the suit, be that a
plaintiff or the defendant, against his wish unless such person is
able to prove that he is a necessary party to the suit and without      G
his presence, the suit cannot proceed and nor can be decided
effectively. In other words, no person can compel the plaintiff to
allow such person to become the co-plaintiff or defendant in the
suit. It is more so when such person is unable to show as to how
he is a necessary or proper party to the suit and how without his
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808            SUPREME COURT REPORTS                      [2018] 1 S.C.R.


A     presence, the suit can neither proceed and nor it can be decided
      or how his presence is necessary for the effective decision of the
      suit. [Paras 17, 18] [812-A-C]
            6. Fifth, a necessary party is one without whom, no order
      can be made effectively, a proper party is one in whose absence
B     an effective order can be made but whose presence is necessary
      for a complete and final decision on the question involved in the
      proceeding. [Para 19] [812-C-D]
            7. Sixth, if there are co-owners or co-landlords of the suit
      premises then any co-owner or co-landlord can file a suit for
C     eviction against the tenant. In other words, it is not necessary
      that all the owners/landlords should join in filing the eviction suit
      against the tenant. [Para 20] [812-E]
            8. In the light of well settled principles of law and on
      examining the legality of the impugned order, the impugned order
D     is not legally sustainable and hence deserves to be set aside.
      [Para 21] [812-F]
             9. Respondent No. 1, who claims to be the co-sharer or/
      and co-owner with the plaintiffs (appellants herein) of the suit
      property is neither a necessary and nor a proper party in the
E     eviction suit of the appellants against respondent Nos. 2 to 5. In
      other words, such eviction suit can be decreed or dismissed on
      merits even without the impleadment of respondent No.1. [Para
      22] [812-G]
            10. In the eviction suit, the question of title or the extent
F     of the shares held by the appellants and respondent No. 1 against
      each other in the suit premises cannot be decided and nor can be
      made the subject matter for its determination. The reason being
      that this is not a suit between the appellants (plaintiffs) and
      respondent No.1 where their inter se rights relating to the suit
      premises can be gone into but rather is an ejectment suit filed by
G     the appellants against respondent Nos. 2 to 5 for their eviction
      from the suit premises. [Paras 23, 24] [812-H; 813-A]
            11. The Lis in the suit is between the appellants on the one
      hand and respondent Nos. 2 to 5 on the other hand and the decision
      in the suit would depend upon the question as to whether there
H     exists any relationship of landlord and tenant between the
  KANAKLATA DAS & ORS. v. NABA KUMAR DAS & ORS.                        809


appellants and respondent Nos. 2 to 5 in relation to the suit          A
premises and, if so, whether the grounds pleaded in the plaint for
claiming eviction of respondent Nos. 2 to 5 are established or
not. For deciding these two main questions, the presence of
respondent No. 1 is not necessary. Respondent No.1 is neither a
necessary and nor a proper party in the suit. As a consequence,
                                                                       B
the application filed by respondent No. 1 under Order 1 Rule
10(2) of the CPC in the aforementioned ejectment suit is
dismissed. [Paras 25, 26 and 29] [813-B-D, F-G]
      Dr. Ranbir Singh v. Asharfi Lal (1995) 6 SCC 580:
      [1995] 3 Suppl. SCR 847; Ruma Chakraborty v. Sudha
      Rani Banerjee & Anr. (2005) 8 SCC 140: [2005]                    C
      3 Suppl. SCR 1051; Udit Narain Singh Malpaharia v.
      Additional Member Board of Revenue, Bihar & Anr. AIR
      1963 786: [1963] Suppl. SCR 676; Kasthuri
      Radhakrishnan & Ors. v. M. Chinniyan & Anr. (2016)
      3 SCC 296 : [2016] 1 SCR 18 – relied on                          D
                      Case Law Reference
[1995] 3 Suppl. SCR 847              relied on        Para 16
[2005] 3 Suppl. SCR 1051             relied on        Para 17
[1963] Suppl. SCR 676                relied on        Para 19          E
[2016] 1 SCR 18                      relied on        Para 20
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3018
of 2008
      From the Judgment and Order dated 21.09.2006 of the High Court   F
of Kolkata in C. O. No. 1759 of 2006.
      Ranjan Mukherjee, Adv. for the Appellants.
      Naba Kumar Das, Respondent-in-person
      The Judgment of the Court was delivered by                       G
      ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
against the final judgment and order dated 21.09.2006 passed by the
High Court of Kolkata in C.O. No.1759 of 2006 whereby the High Court
allowed the application filed by respondent No.1 herein and reversed
the judgment and order dated 15.12.2005 passed by the Judge, Small
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810             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A     Causes Court, Kolkata in Ejectment Suit No.1615 of 2000 wherein the
      Trial Court dismissed the application filed by respondent No.1 herein
      under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908
      (hereinafter referred to as “the Code”) for impleadment as Plaintiff in
      the pending ejectment suit.
B            2. The controversy involved in this appeal is short and it would be
      clear from the few relevant facts mentioned hereinbelow.
             3. The appellants are the plaintiffs whereas respondent Nos. 2 to
      5 are the defendants in an Ejectment Suit out of which this appeal arises.
             4. The appellants have filed a suit for ejectment being Ejectment
C     Suit No.1615/2000 against respondent Nos. 2 to 5 before the Small Causes
      Court at Calcutta for their eviction on the grounds of non-payment of
      rent, subletting, and bona fide need of the suit premises for their personal
      use under the provisions of the West Bengal Tenancy Act. Respondent
      Nos. 2 to 5 have entered appearance and are contesting the suit which
D     is pending.
             5. In the Ejectment Suit, respondent No. 1 herein filed an
      application under Order 1 Rule 10(2) of the Code praying therein that he
      may be allowed to become the co-plaintiff along with the appellants.
      Respondent No. 1 sought his impleadment alleging that he is a member
E     of the appellants’ family and being so, has a right, title and interest not
      only in the suit premises but also in other family properties as one of the
      co-owners. It is essentially on these allegations and with a view to protect
      his interest in the suit premises, respondent No. 1 sought his impleadment
      in the suit.

F             6. The said application for impleadment made by respondent No.
      1 was dismissed by the Trial Court by order 15.12.2005(Annexure-P-7)
      but it was allowed by the High Court by the impugned order giving rise
      to filing of this appeal by way of special leave in this Court against the
      order of the High Court by the appellants (plaintiffs).
              7. Therefore, the short question, which arises for consideration
G
      in this appeal, is whether the High Court was justified in allowing the
      application filed by respondent No. 1 under Order 1 Rule 10 (2) of the
      Code thereby permitting him to become co-plaintiff in the Ejectment
      Suit filed by the appellants against respondent Nos. 2 to 5 for their eviction
      from the suit premises.
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  KANAKLATA DAS & ORS. v. NABA KUMAR DAS & ORS.                                  811
           [ABHAY MANOHAR SAPRE, J.]

      8. Heard Mr. Ranjan Mukherjee, learned counsel for the                     A
appellants and respondent No.1, who appeared in-person.
       9. Having heard the learned counsel for the appellants and
respondent No. 1, in-person, who alone is the contesting respondent in
this appeal and on perusal of the record of the case, we are inclined to
allow the appeal and while setting aside the impugned order of the High          B
Court, restore the order of the Trial Court with observations hereinbelow.
      10.In other words, we are inclined to dismiss the application filed
by respondent No. 1 under Order 1 Rule 10(2) of the Code in appellants’
ejectment suit.
       11. There are some well-settled principles of law on the question         C
involved in this appeal, which need to be taken into consideration while
deciding the question arose in this appeal. These principles are mentioned
infra.
       12.First, in an eviction suit filed by the plaintiff (Landlord) against
the defendant(Tenant) under the State Rent Act, the landlord and tenant          D
are the only necessary parties.
       13.In other words, in a tenancy suit, only two persons are necessary
parties for the decision of the suit, namely, the landlord and the tenant.
       14. Second, the landlord (plaintiff) in such suit is required to plead
                                                                                 E
and prove only two things to enable him to claim a decree for eviction
against his tenant from the tenanted suit premises. First, there exists a
relationship of the landlord and tenant between the plaintiff and the
defendant and second, the ground(s) on which the plaintiff-landlord has
sought defendant’s-tenant’s eviction under the Rent Act exists. When
these two things are proved, eviction suit succeeds.                             F
       15. Third, the question of title to the suit premises is not germane
for the decision of the eviction suit. The reason being, if the landlord fails
to prove his title to the suit premises but proves the existence of
relationship of the landlord and tenant in relation to the suit premises and
further proves existence of any ground on which the eviction is sought           G
under the Tenancy Act, the eviction suit succeeds.
       16. Conversely, if the landlord proves his title to the suit premises
but fails to prove the existence of relationship of the landlord and tenant
in relation to the suit premises, the eviction suit fails. (See-Dr. Ranbir
Singh vs. Asharfi Lal, 1995(6) SCC 580).                                         H
812             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A           17. Fourth, the plaintiff being a dominus litis cannot be compelled
      to make any third person a party to the suit, be that a plaintiff or the
      defendant, against his wish unless such person is able to prove that he is
      a necessary party to the suit and without his presence, the suit cannot
      proceed and nor can be decided effectively.
B            18.In other words, no person can compel the plaintiff to allow
      such person to become the co-plaintiff or defendant in the suit. It is
      more so when such person is unable to show as to how he is a necessary
      or proper party to the suit and how without his presence, the suit can
      neither proceed and nor it can be decided or how his presence is necessary
      for the effective decision of the suit. (See-Ruma Chakraborty vs.
C     Sudha Rani Banerjee & Anr., 2005(8) SCC 140)
             19. Fifth, a necessary party is one without whom, no order can be
      made effectively, a proper party is one in whose absence an effective
      order can be made but whose presence is necessary for a complete and
      final decision on the question involved in the proceeding. (See-Udit
D     Narain Singh Malpaharia vs. Additional Member Board of
      Revenue, Bihar & Anr., AIR 1963 786)
            20. Sixth, if there are co-owners or co-landlords of the suit premises
      then any co-owner or co-landlord can file a suit for eviction against the
      tenant. In other words, it is not necessary that all the owners/landlords
E     should join in filing the eviction suit against the tenant. (See-Kasthuri
      Radhakrishnan & Ors. vs. M. Chinniyan & Anr., 2016(3) SCC 296)
             21.Keeping in mind the aforementioned well settled principles of
      law and on examining the legality of the impugned order, we find that the
      impugned order is not legally sustainable and hence deserves to be set
F     aside.
             22.In our considered opinion, respondent No. 1, who claims to be
      the co-sharer or/and co-owner with the plaintiffs (appellants herein) of
      the suit property is neither a necessary and nor a proper party in the
      eviction suit of the appellants against respondent Nos. 2 to 5. In other
G     words, such eviction suit can be decreed or dismissed on merits even
      without the impleadment of respondent No.1.
            23.In the eviction suit, the question of title or the extent of the
      shares held by the appellants and respondent No. 1 against each other in
      the suit premises cannot be decided and nor can be made the subject
H     matter for its determination.
  KANAKLATA DAS & ORS. v. NABA KUMAR DAS & ORS.                                 813
           [ABHAY MANOHAR SAPRE, J.]

       24.The reason being that this is not a suit between the appellants       A
(plaintiffs) and respondent No.1 where their inter se rights relating to
the suit premises can be gone into but rather is an ejectment suit filed by
the appellants against respondent Nos. 2 to 5 for their eviction from the
suit premises.
       25. Therefore, the Lis in the suit is between the appellants on the      B
one hand and respondent Nos. 2 to 5 on the other hand and the decision
in the suit would depend upon the question as to whether there exists
any relationship of landlord and tenant between the appellants and
respondent Nos. 2 to 5 in relation to the suit premises and, if so, whether
the grounds pleaded in the plaint for claiming eviction of respondent
Nos. 2 to 5 are established or not. For deciding these two main questions,      C
the presence of respondent No. 1 is not necessary.
      26.For these reasons, we are of the considered opinion that
respondent No. 1 is neither a necessary and nor a proper party in the
suit.
                                                                                D
        27.We, however, make it clear that any finding whether directly
or indirectly, if recorded by the Trial Court touching the question of title
over the suit property, would not be binding on respondent No.1 regardless
of the outcome of the suit and respondent No. 1 would be free to file an
independent civil suit against the appellants for a declaration of his right,
title and interest in the suit premises and in any other properties, if so,     E
and claim partition and separate possession of his share by metes and
bounds in all such properties.
       28.In view of the foregoing discussion, the appeal succeeds and
is allowed. The impugned order is set aside and the order of the Trial
Court is restored.                                                              F
        29.As a consequence, the application filed by respondent No. 1
under Order 1 Rule 10(2) of the Code in the aforementioned ejectment
suit is dismissed.
      30.The Trial Court is directed to decide the ejectment suit on merits
                                                                                G
in accordance with law expeditiously.


Ankit Gyan                                                   Appeal allowed.


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