Anjani Kumar Mishra, J. - Heard Sri Shekhar Srivastava, learned counsel for the petitioner.
2. The writ petition arises out of a SCC Suit filed by the petitioner for arrears of rent, mesne profits and eviction of the tenant from a shop.
3. The said suit was filed by one Het Ram Sharma, who died during the pendency of the suit. He was survived by three sons.
4. Vide order dated 19.05.2009, one of his son namely Ghanshyam was substituted in place of the plaintiff on the basis of a will dated 26.06.2008 in his favour. The petitioner, who is another son, filed an application under Order 1, Rule 10 seeking impleadment in the suit on the ground that the property in question was ancestral property. This application under Order 1, Rule 10 was rejected vide order dated 30.02.2012.
5. The petitioner thereafter filed a revision which has also been dismissed on 10.12.2015 and thereafter this writ petition challenging the orders dated 30.04.2012 and 10.12.2015.
6. The contention of the learned counsel for the petitioner is that he is one of the son''s of Late Het Ram Sharma, the original plaintiff and therefore he was entitled to be substituted on his death which was not done. He is therefore liable to be impleaded in the suit as he is necessary and proper party thereto.
7. It is further contended that the petitioner is a necessary party in whose absence effective and complete adjudication of the dispute in the suit is not possible. The petitioner has a substantial interest in the accommodation in dispute. He has already filed a suit No. 667 of 2012 for cancellation of the will allegedly executed in favour of the Ghanshyam, his brother.
8. In support of his contention, learned counsel for the petitioner has placed reliance on the following judgments -
1. Aliji Monoji and Co. v. Lalji Mavji, 1997 AIR(SC) 64
2. Ahmad Husain v. Uma Devi Shukla, AIR 1975 (Alld) 254.
3. Khalil Ahmad v. Additional District Judge, Gorakhpur, AIR 1974 (Alld) 422.
4. Savitri Devi v. District Judge, Gorakhpur, 1999 Vol. 1 JT 643.
9. It is lastly submitted that the dismissal of the impleadment application is going to result and multiplicity of the proceedings and therefore, the impugned orders are liable to be quashed.
10. I have considered the submissions made by learned counsel for the petitioner and have perused the record.
11. The instant writ petition arises out of a SCC Suit filed for arrears of rent eviction and mesne profits. Such a suit is one between the landlord and the tenant. The plethora of authorities on the issue are to the effect that a landlord is a person to whom rent is payable. It is not necessary that the land lord is also the owner of the accommodation where from eviction of a tenant is sought. Thee can be instances where the landlord and the actual owner are different persons.
12. It is also settled law that even one of the several co-owners can maintain a suit for eviction and on the ground of arrears of rent, It is equally well settled that the title of the landlord is not to be determined in a SCC suit and in cases where the title itself is disputed, the same has to be decided in a regular suit and not in a SCC suit. The dispute that is being raised in the writ petition, as also in the impleadment application which was dismissed by the two Courts below, is a inter-se between the petitioner and the person who has been impleaded in place of the deceased landlord with the petitioner claiming to be a co-owner.
13. This dispute in my considered opinion is beyond scope of the suit itself. The only issue to be decided in the suit is as to whether the tenant is liable to be evicted on account of his being in arrears of rent. As on date, a will admittedly exists in favour of the person who has been substituted in place of the original plaintiff. The petitioner claims to be a co-owner and has merely instituted a suit for the cancellation of the will in favour of the brother, Ghanshyam. Both the Courts below have held that the will in favour of the Ghanshyam has not been cancelled till date.
14. The Judge Small Causes has observed that there is a will in favour of Ghanshyam who has been substituted, as regards, the shop in dispute and therefore, the petitioner has been found not to be a necessary party. It is also observed that the title is not to be decided in the pending proceedings and that the nature of the suit will change in case, the petitioner is impleaded.
15. It is also be relevant to note that the pendency of the original suit No. 667 of 2012 for cancellation of the will in favour of Ghanshyam which is also having relied upon by the petitioner is a suit which has been instituted after the application for impleadment filed by the petitioner was rejected.
16. The Revisional Court has dismissed the revision observing that admittedly Het Ram Sharma was the landlord and there is a will in existence in favour of the Ghanshyam, who has been substituted in his place upon his death and that this will has not been set aside till date and therefore, the petitioner is not entitled to be impleaded in the suit. A further observation have been made that inter-se dispute between the petitioner and his brother will be determined in the suit for cancellation of the will, filed by the petitioner.
17. In my considered opinion, the judgments of the two Courts below are perfectly correct and call for no interference. All the judgments that have been cited by the petitioner are judgments arising from a regular suit wherein title of the parties can be determined. The title of the parties is not to be decided in a SCC suit and for this reason alone, the judgments cited are of no help to the petitioner and are clearly distinguishable.
18. Accordingly and for the reasons given above, I do not find any merit in the submissions made by the learned counsel for the petitioner.
19. The writ petition is accordingly, dismissed.
