SAROJA B NANDOSKAR Vs. E S NOGMEKAR

JUDGEMENT

(1.) THIS petition is filed by the petitioner challenging the order of the Small Cause Court at Bombay rejecting her application for being joined as a party to an ejectment suit filed by the respondent No. 1. The plaintiff-respondent No. 1 has filed an ejectment suit against respondent No. 2 alleging that respondent No. 2 has unlawfully and in contravention of the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the "Rent Act") sublet the suit premises which consist of room No. 25 on the first floor of a building called Shivram Sadan, B-Block situated at Veer Savarkar Road, Prabhadevi, Bombay. The plaint itself does not disclose who is the alleged sub-tenant. Another averment in the plaint is that the original tenant-respondent No. 2 has left Bombay for good and has been staying at Goa permanently. The sole defendant-respondent No. 2 filed his points of defences. His stand is that his sister, that is, the present petitioner was and is residing in the suit premises for the last several years and in any case since prior to 21st May, 1959. He alleges that he has created a lawful sub-tenancy in her favour and the petitioner is paying rent of the suit premises. The petitioner filed an application in the trial Court asking for being joined as a party to the suit. A two-fold reason has been given by the petitioner. Firstly, according to her, the premises were in fact taken by the defendant in order to accommodate her and her husband and it was only formally that the receipts were obtained in the name of her brother, the defendant, and alternatively her case is that when the defendant left for Goa in 1956, she continued to remain in possession since that time having been put in possession by her brother. She, therefore, claimed a declaration that she was a lawful sub-tenant of the premises. Her case appears to be that she has been in continuous and undisturbed exclusive possession and tenancy rights are created in her favour. According to her, relations between her and her brother, the defendant are strained and the plaintiff in collusion with the defendant was trying to obtain an ex parte decree. THIS application came to be rejected by the trial Court which took the view that the petitioner is neither a necessary nor a proper party and that she was claiming independent title. The revisional Court declined to interfere with this order and that is how the petitioner has filed this petition. Mr. Morje appearing on behalf of the petitioner urged that both the plaintiff and the defendant admit that the petitioner is a sub-tenant and all that the petitioner wants to do is to claim the statutory protection under the Rent Act since she has been in possession as a sub-tenant since before 21st May, 1959. According to Mr. Mahamane appearing on behalf of respondent No. 1, in case a decree is passed in respect of the premises resulting in eviction of the petitioner who is in possession, she has a remedy open to her and she can file a suit for a declaration regarding her status and, therefore, the order rejecting the petitioners application should not be interfered with. Now, it is obvious that even though the plaintiff has not specifically alleged that it is the petitioner to whom the premises have been sub-let, there can be no manner of doubt that the allegation of sub-tenancy refers to the occupation of the petitioner. Indeed it was not possible for the learned Counsel for respondent No. 1 to that the plaintiff had any other person as sub-tenant in view when averment of sub-tenancy was made in the plaint. The defendant also admits that the premises are in possession of the petitioner as a sub-tenant. The petitioners own case, no doubt, alternatively is that she was entitled to be declared as a lawful sub-tenant and that it was she who had been paying rent. It is no doubt true that the petitioner has initially raised in her application a question that the premises were tenanted for the benefit of herself and her family and that she alone was the tenant and it was only formally that the receipts were being issued in favour of her brother, the defendant. The suit between the two respondents is a suit for ejectment between a landlord and tenant and it will not be permissible to enlarge the scope of such a suit to enable the petitioner to establish her independent right as a tenant is this suit. To a limited extent, therefore, the trial Court cannot be said to have acted erroneously in rejecting the application on the averments made by the petitioner. However, what cannot be lost sight of is that the petitioner wanted to claim the status of a tenant on the facts alleged by the plaintiff himself that the defendant had sub-let the premises to the present petitioner. In a suit between landlord and tenant on the ground that the tenant was liable to be evicted for having unlawfully sub-let the premises, there can be no doubt that though a sub-tenant may not be a necessary party, he will be a property party. The sub-tenant being on record as a party-defendant will obviate the possibility of any further litigation between the sub-tenant and the landlord in case a decree for possession is passed against the tenant defendant. In the instant case, not only does the plaintiff want to dub the petitioner as a sub-tenant, but the defendant himself admits the sub-tenancy and the petitioner wants to protect her possession on the basis of a statutory protection alleging that she is entitled to the benefit of the provisions of the Rent Act as her sub-tenancy was created much earlier than 21st May, 1959. Whether the petitioner succeeds in proving that she is entitled to the protection or not, I have no doubt that this was a case in which on facts, the petitioner was certainly a proper party. In this view of the matter, the orders rejecting the petitioners application for being joined as a party are quashed and it is directed that the petitioner be allowed to join as the second defendant in the suit. Rule absolute. No order as to costs.