ASHYANA CONSTRUCTION Vs. OMAR

JUDGEMENT

(1.) The present revisional application is arising out of an order passed by the learned Trial Judge in rejecting the application filed under Order 1 Rule 10(ii) of the Code of Civil Procedure in connection with an application filed under Order 21 Rule 99 read with Rule 101 of the Code of Civil Procedure. The petitioner claims to have entered into an agreement of tenancy with the Imambara & Trust Estate on 7th September. 1986 and since then the said petitioner applicant is in possession of the entire suit premises through their respective leave and licence holders upon payment of regular rents to the landlord namely the trust estate of late Aga Karbalai Mahammad. In or about 3rd February. 2012 it is alleged that Md. Omar the applicant in misc. case attempted to enter the suit premises and demanded possession of one of the shop rooms on the basis of some court order which recognised his right as a tenant in respect of the shop room in the said premises. The applicant-petitioner became apprehensive and thereafter made 'an enquiry wherefrom the petitioner became aware of the misc. case being initiated by Md. Omar against the Imambara estate under Order 21 Rule 99 and 101 of the Code of Civil Procedure. The petitioner states that such information were derived on the basis of the inspection of the court record. The petitioner submits that the claim of Md. Omar in the Misc. case that he was a sub tenant under the defendants is illegal. Moreover, Md. Omar taking advantage of some rent receipts illegally obtained, filed the said proceeding being Misc. Case No. 352 of 2001 in order to take possession of the suit premises and in the event such things happened it would amount to dispossession of the applicant-petitioner in respect of one room of the suit premises. On such facts it was contended that in deciding the said misc. case the presence of the proposed applicant is necessary. The learned Trial Judge after considering the rival contentions observed that the petitioner was neither a party to the impugned suit nor has been dispossessed from the suit premises by the decree holder. He is also not a party to the execution proceeding. On such facts the said application was dismissed.

(2.) Mr. Aniruddha Chatterjee learned Counsel appearing for the petitioner in assailing the said judgment submitted that in the said misc. case Md, Omar claimed declaration of tenancy and in the event such declaration is allowed the same is going to affect the right of the proposed applicant. In this regard he relied upon a decision in the case of Razia Begum v. Sahebzadi Anwar Begum & Ors., 1958 AIR(SC) 886 and in the case of Savitri Devi v. District Judge, 1999 2 SCC 577.

(3.) Per contra, it is submitted by the learned counsel appearing for the opposite parties that in deciding the issues the presence of the proposed applicant is not at all required. It is submitted that the said proposed applicant is neither a necessary party nor a proper party. In making reference to Order 21 Rule 99 of the Code of Civil Procedure, it is contended that since Md. Omar was not the person other than the judgment debtor the said applicant approached the Court under Order 21 Rule 99 of the Code of Civil Procedure. It is the contention of the said applicant that all the rents were tendered to the landlord but the said landlord obtained a collusive decree and on the basis of the said collusive decree ousted the applicant from the suit premises through the Court bailiff. It is the case of the said applicant that he has been lawfully inducted as a subtenant and in the event the Imambara estate has accepted the rent from Omar directly the said decree for eviction against the tenant is not enforceable as against Md. Omar since his induction as a tenant has already been recognised by acceptance of rents by Imambara estate. It is submitted that since he has been dispossessed from the property illegally by the decree holder, he has asked for possession of such property by exercising his right under Order 21 Rule 99 and Rule 101 of the Code of Civil Procedure. It is submitted that in deciding the issues involved in the said application, the presence of the proposed applicant in whose favour it is alleged the tenancy has been created is not required. In fact having regard to the scope of Order 21 Rule 99 of the Code of Civil Procedure the applicant cannot claim any right for addition in such proceeding. It is contended that the addition of the proposed applicant would unnecessarily enlarge the scope of trial and in any event the issues that are sought to be raised by the proposed applicant is not at all required to be gone into or considered in deciding the application filed by Md. Omar. In this regard he relied upon a decision in the case of Narayan Chandra Garai & Ors. v. Matri Bhandar Pvt. Ltd & Anr., 1974 AIR(Cal) 358 and in the case of Niyamat All Molla v. Sonargon Housing Cooperative Ltd., 2008 AIR(SC) 225