DAMODARAN Vs. GERALD

JUDGEMENT

(1.) A car shed attached to a building belonging to one Mrs. Thimothy was subject of a petition for eviction before the Rent Controller, Kozhikode. The petitioner therein was One of the 3 sons of the said Mrs. Thimothy and he pleaded that in a suit O. S.882 of 1966 in the Munsiff's Court - 1 Kozhikode there was a contest as to whether the defendant was a tenant of the building and in appeal A. S. 260 of 1968 the District Judge, Kozhikode held that the defendant was a lessee holding the building on oral lease at the rate of Rs 20/- per mensem. It was pleaded that the respondent in the petition who was the defendant in that suit had been in arrears of rent from 1-9-1964 and that the petitioner required the said car shed bona fide for running his office and storing his textile goods. The petition for eviction under the Buildings (Lease and Rent Control) Act was opposed by the respondent. He Contended that the arrears as claimed was not due, that the building was not required for the bona fide need of the petitioner and that further the petition by one of the 3 heirs of the deceased Mrs. Thimothy was not maintainable. Though the Rent Controller did not find in favour of the petitioner on the question of bona fide requirement of the building for his own use he held in favour of the petitioner on the question of arrears of rent and ordered eviction. There was an appeal before the Subordinate Judge in which appeal the learned Judge held that the petitioner had not proved that the respondent was in arrears The learned District Judge before whom the matter went up in revision at the instance of the petitioner has taken the view, and according to me rightly, that it is not for the petitioner to prove that the rent was in arrears and it was for the tenant to prove discharge if he pleads discharge by way of answer to the claim for arrears of rent There was a further, contention raised before the District Judge in revision which, alone is relevant for the purpose of this petition. Even on the day the petition for eviction was filed a suit for partition was pending at the instance of one of the 3 sons of Mrs. Thimothy. Therein the respondent herein was the first defendant and his brother second defendant. It appears that the second defendant was not a person of sound mind. The respondent herein moved in that suit O. S. 26 of 1972 before the Sub Court of Kozhikode for permission to file a petition for eviction. I have not been enlightened at the hearing by counsel appearing in this case as to the provision under which a party is to seek such permission from the court or the court could grant such permission. But it did grant permission, which, I assume is really irrelevant. The suit for partition is said to have been finally decreed on 18-7-1975, a fact spoken to by both sides at the hearing. It is also agreed that in the said final decree the building which is the subject of the eviction petition was allotted to the plaintiff who is the brother of the respondent herein Producing certain fresh documents, evidently to show this creation of interest in one of the three sons by the final decree for partition, the Revision Petitioner herein seems to have moved the District Court for taking note of the subsequent events. His case, it may be noticed at the outset was that one of the 3 sons could not claim to be the landlord and seek eviction by himself. He wanted to submit to court that subsequent events had made his case stronger in that the petitioner in the Rent Control Petition had no interest in the subject matter of the petition by reason of the final decree. He further filed a notice said to have been issued to him by the plaintiff in O. S. 26 of 1972 claiming that he may pay rent for the period subsequent to the allotment under the final decree to him. Evidently this was intended to show that the respondent could no longer act for and on behalf of his brother who had chosen to deal with the revision petitioner direct. Nothing is seen said by the learned Judge in the order under revision as to this petition or the documents produced. That is one of the complaints of the revision petitioner here.

(2.) The controversy with which I need concern myself in this, revision is whether in view of the plea raised before the learned District Judge that the petitioner in the petition for eviction had no right to seek eviction as one of the coheirs and further that in any event by reason of the final decree he could not obtain an order for eviction the learned District Judge could have reversed the order of the Subordinate Judge. I should consider the answer to be quite simple. If, even at the time the petition was filed, respondent was only one of the 3 coowners and it is seen that subsequently, as a result of the final decree in the suit for partition pending even on the date of his petition, he is seen to have no interest in the property should the court order eviction I think not. But Sri V. Ramkumar, learned counsel appearing on behalf of counsel for the respondent, has attempted to support the order of the learned Judge and I would say with considerable vehemence despite that he was supporting a lost cause. According to learned counsel the provisions of S.146 and O.22 R.10 of the Code of Civil Procedure give a right to the transferor of an interest to continue the conduct of a suit despite the transfer by him and the situation is not different where it is not a transfer as such but creation of an interest during the pendency of a suit. No doubt. O.22 R.10 of the Code of Civil Procedure enables the continuance by or against a person upon whom an interest devolves by assignment, creation or devolution of any interest during the pendency of a suit with the leave of the court. May be that a case of allotment under a partition decree of an item of property jointly owned by the coowners before the partition is a case of creation of interest falling within O.22 R.10 as observed by Patanjali Sastri J. in Ratnasabapathi v. Gopala Iyer, AIR 1940 Mad. 876 Reference has been made by learned counsel to the decisions in Krushna Chandra v. Lokanath, AIR 1969 Ori. 140 , Joti Lal v. Sheodhayan, AIR 1936 Pat. 420, Pyli v. Varghese, AIR 1956 TC 147, Sukhdeo Das v. Kashi Prasad, AIR 1958 Pat. 630 and Somulu v. Appalanaidu, AIR 1958 AP 507. I need not deal with those decisions in detail, for, it is a well accepted principle that O.22 R.10 of the Code of Civil Procedure is an enabling provision, a provision which permits a person in whom interest has devolved by assignment, devolution, or creation to seek to come in as a party to the proceeding in the pending suit. Such a person cannot seek to be impleaded as a matter of course. That has necessarily to be by the leave of the court. This provision is not to be understood as one conferring a right upon the transferor plaintiff in such a case to get a decree irrespective of all other considerations. No doubt he can continue the suit and seek whatever relief he is entitled to. He is entitled to be on record. It is one thing to say that he is entitled to continue as plaintiff and another thing to say that he is entitled to a decree as prayed for irrespective of relevant circumstances such as subsequent events which a court could appropriately take note of Whether he will be entitled to relief is a matter in the realms of substantive law.

(3.) Where, as in this case, the right of one of the coowners who is hot shown to be the landlord if the tenant had accepted one of the coowners as his landlord evidently S.116 would operate and despite the fact that he is only one of the coowners he will be entitled to an order for eviction to seek eviction is disputed and where it ultimately turns out that he has no title to the property at the time the court is deciding the case for eviction the court would be right in taking notice of the subsequent event by which the dispute as to the title of the petitioner on the date of his petition for eviction has been determined. In other words, if the controversy relevant for the purpose of the eviction petition is the title of the petitioner to seek eviction the fact that a court has subsequently found that he had no title and therefore on the evidence of such judgment he has to be found to have no title would be a relevant fact the court could notice. I need only refer in this context to what Krishna Iyer, J. said in Pasupuleti Venkateswarlu v. The Motor & General Traders, AIR 1975 SC 1409 . The learned Judge said at Para.4 of the Judgment thus: