DINESH SHARMA Vs. LAXMI NARAYAN & ANR

JUDGEMENT

(1.) Challenge by means of this petition under Article 227 of the Constitution of India is to the impugned order of the trial court dated 24.8.2013 which has dismissed the application filed by the petitioner under Order 1 Rule 10 CPC for being added as a defendant in a suit for possession filed by the respondent no.1 herein against the respondent no.2 herein.

(2.) A reference to the written statement filed by respondent no.2 in the suit shows that respondent no.2 in preliminary objection no.3 has stated that he was not the tenant in the suit shop; the suit shop was in the tenancy of one Dinesh Kumar Sharma; and Dinesh Kumar Sharma was already in possession of the suit shop. Dinesh Kumar Sharma is the present petitioner/applicant under Order 1 Rule 10 CPC.

(3.) In a suit for possession such as the present, in case the petitioner/applicant would be in physical possession of the property, there is every threat that after taking a decree of possession against the existing defendant/respondent no.2, the respondent no.1 can in execution physically throw out the petitioner/applicant in execution of the decree by surprising the petitioner/applicant by the filing of execution. The execution will naturally be only against the respondent no.2 herein, who is the present defendant. The respondent no.2/present defendant has shown a clear-cut disinterest in the subject matter of the suit by categorically stating that he is not the tenant and he is not in possession of the suit premises, and which are in possession of the applicant. Clearly, therefore the applicant is a necessary party and merely because the respondent no.1 may say that no relief is claimed against the present petitioner will not change the fact that there is every likelihood and a threat that the petitioner/applicant can by surprise be thrown out in execution of the decree against the respondent no.2.