KRISHNA Vs. RAM KUMAR

JUDGEMENT

(1.) THIS petition seeks the quashing of the order dated 2nd December, 2010 passed by the Court of Small Causes by which the application filed by the petitioner under Order 1 Rule 10(2) of the Code of Civil Procedure (hereinafter referred to as the 'CPC') for impleadment as a defendant in SCC Suit No.5 of 2005, was rejected. The petitioner has also sought the quashing of the judgment and order dated 8th December, 2011 by which the Revision filed by the petitioner for setting aside the aforesaid order was dismissed. It transpires that SCC Suit No.5 of 2005 was instituted by the plaintiffs Ram Kumar, Naresh and Bela Devi against Dr. Rajendra Kumar Sharma for ejectment and for recovery of arrears of rent. It was alleged that the defendant was the tenant of the shop on a monthly rent of Rs.150/- and that the tenancy of the defendant was terminated on the expiry of the period mentioned in the notice sent under Section 106 of the Transfer of Property Act. It is in this SCC Suit that the petitioner had filed an application under Order VII Rule 10(2), CPC for impleadment as a defendant with the allegation that the applicant was the owner of the property.

(2.) IT transpires that the defendant Dr. Rajendra Kumar Sharma had earlier also filed application 12-C for impleadment of the petitioner as a defendant in the SCC Suit but the said application was rejected by the Court of Small Causes by the order dated 17th September, 2007 and the Revision filed by the defendant for setting aside the aforesaid order was also dismissed by the order dated 30th November, 2007. IT is after the dismissal of the said Revision that the petitioner filed an application under Order 1 Rule 10(2), CPC on 5th February, 2008 for impleadment and this application was rejected by the order dated 2nd December, 2010. The Revision filed for setting aside the aforesaid order was also dismissed by the judgment and order dated 8th December, 2011. IT is stated that earlier, the petitioner had filed Original Suit No.210 of 2001 (Smt. Krishan Vs. Gyan Chand & Ors.) in which Ram Kumar and Naresh who are plaintiff nos. 1 and 2 in SCC Suit No.5 of 2005 were arrayed as defendant nos. 3 and 4 and in Original Suit No.210 of 2001, the Trial Court granted temporary injunction on 10th August, 2001 directing the parties to maintain status quo which injunction is still continuing. The application was filed by the petitioner under Order 1 Rule 10(2), CPC for the reason that the plaintiffs of SCC Suit No.5 of 2005 are not the owners of the property and the petitioner is the owner of the property. The Courts below have rejected the application filed under Order 1 Rule 10(2), CPC for impleadment of the petitioner for the reason that the ownership of the property is not required to be decided in the SCC Suit and all that has been seen is that whether the relationship of the landlord and tenant is existed between the parties. In this connection, reliance has been placed on the decision of this Court in Ghulam Mustafa @ Munshi Nanhey Vs. Malik Jamil Ahmad, Advocate & Anr. 2009 (1) ARC 166.

(3.) EVEN otherwise, finding on the question of title to immovable property rendered by a Court of Small Causes will not operate as res judicata in a regular Civil Suit as has been held by the Supreme Court in Rameshwar Dayal Vs. Banda (dead) through his L.Rs. & Anr. 1993 (1) ARC 249 (SC). The relevant observations are :-