Interim Order 2

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT 16
IN
R.A.E. SUIT NO.129 OF 2024
(CNR : MHSCA3-000324-2024)
Mr. Jagdish Ladhuram Chawla … Plaintiff
V/s
Mrs. Revathi A. Salian ... Defendant
And
Narshing Ladhuram Chawla … Applicant
(Proposed defendant No.3)
Coram : D. P. Kasat,
Judge, C.R.No.32 (B.B.),
Date : 17.09.2025
ORAL ORDER :
By this application, the intervener / third party applicant
is contending that the plaintiff is his younger brother. Original
landlady Fulibai Ladhuram Chawla was his mother. The suit property
including suit premises was constructed by his father Ladhuram. After
the death of his father, his mother became owner of the suit premises.
His mother also died on 21.07.2012 leaving behind her sons and
daughters as her legal heirs and representatives. Prior to that his
mother has executed a Will. However, her property mentioned in the
Will is not yet partitioned between her legal heirs. However, the
plaintiff is in illegal possession of one room out of two rooms of his
mother and also has occupied one commercial shop and commercial
premises at plot No.168. Similarly some rooms and commercial
property is in possession of his deceased brother Bhagwandas. The
property of his mother at Jobner Rajasthan is transferred in the name
of three brothers. The plaintiff has filed this suit with intention to
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grab the suit premises. He is in need of rooms in the suit property for
his family. However, the plaintiff is intending to grab his right illegally
and forcibly. As such, being the heir of his mother Fulibai, he is
entitled in the undivided rights in respect of suit premises and
therefore, he is a necessary party to this suit. Accordingly, he prayed
for adding himself as defendant No.3 in this matter.
2. The plaintiff by filing say at Exh.17 resisted the
application by contending that the application is false and not
maintainable. The applicant is neither a proper nor a necessary party
to this suit. The suit is filed by him on the basis of landlord-tenant
relationship. If at all, the applicant is claiming his legal rights in
respect of suit property, he can file a separate suit in that regard. The
application is filed only with an intention to delay the proceeding.
The issue relating to title cannot be adjudicated in this suit. It is well
settled law that one of the co-owner and landlord can file suit against
tenant and therefore, presence of applicant in this suit is not
necessary. Even in absence of the applicant, the suit can be
adjudicated completely and effectively. As such, by denying all the
contentions in the application, he has prayed for rejection of the
application.
3. By filing rejoinder at Exh.19, the applicant has denied
the contentions raised by the plaintiff in his say.
4. Heard both sides. From the contentions raised in this
application, it appears that the applicant is one of the son of deceased
Fulibai and accordingly, is one of the co-owner of the suit property
and suit premises.
5. In this background, the learned advocate of plaintiff
placed his reliance on following case laws :
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1. Prakash Devchand Chavle v/s. Rajkumar Devchand Chavle
and anr., Writ Petition No.621 of 2018, 19.04.2018 ;
2. M/s. Sirsiwala Realty and ors. v/s. Gyasuddin Kifayatulla
Zariwala and ors., 2016 SCC OnLine Bom 13542 ;
3. N. B. Ashok Kumar and anr. v/s. Smt. Lakshmamma and ors.
Writ Petition 3348 of 2024, Karnataka High Court ;
4. Shahnaj Begum v/s. Taj Mohammad and ors.,
MANU/UP/1252/2019, dated 09.05.2019 ;
5. Jeet Kaur and anr. v/s. Balaji Builders and ors., 2019 SCC
OnLine ALL 7007 ;
6. Sh.Sri Ram Gupta (since deceased) through his legal heirs
Sh. Suimt Gupta and ors. v/s. Lalit Kumar and ors., CM(M)
595 of 2017 and CM Appl. 20278 of 2017 ;
7. Kanaklata Das and ors. v/s. Naba Kumar Das and ors., (2018)
2 SCC 352 ;
8. Kasthuri Radhakrishnan and ors. v/s. M. Chinniyan and anr.,
(2016) 3 SCC 296 ;
9. India Umbrella Manufacturing Co. and ors. v/s. Bhagabandei
Agarwalla (Dead) by LRs. Savitri Agarwalla (Smt.) and ors.,
(2004) 3 SCC 178 ;
10. Secretary, Department of Excise and Commercial Taxes and
ors. v/s. Sun Bright Marketing (P) Ltd., Chhattisgarh and
anr., (2204) 3 SCC 185 ;
11. Foolchand Nanhelal Parwar v/s. Shabbir Hussain Ali Bohra
and anr., (1997) 11 BOM CK 0023.
6. On the other hand, the learned advocate of applicant /
intervener placed his reliance on following case laws :
1. M. Chinniyan v/s. Kasthuri and ors., 2007(2) RCR RCC 619 ;
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2. Mangal Builders and Enterprises Limited and anr. v/s.
Williamson Magor and Company Ltd. and anr., 2020(1) RCR
(Rent) SC ;
3. S. P. Chengalvaraya Naidu (dead) by L.Rs. v/s. Jagannath
(dead) by L.Rs. and ors., JT 1993 (6) SC 331.
7. In the present matter, the plaintiff has filed suit by
contending himself as owner, landlord and rent controller in respect
of suit property. Accordingly, by relying on decision in the case of M.
Chinniyan (cited supra), the learned advocate of applicant contended
that though suit filed by one of the co-owners is maintainable, the
suit filed by co-owner by claiming himself to be an absolute owner is
not maintainable. So also, by relying on the decision in the case of
Mangal Builders and Enterprises Limited and anr. (cited supra), he
contended that the suit of eviction against tenant without consent of
co-owner is not maintainable. On the contrary, the learned advocate
of plaintiff placed his reliance on the decision in the case of Kanaklata
Das and ors. (cited supra) wherein Hon'ble Supreme Court has dealt
with a similar issue and laid down the law that in an eviction suit, the
question of title for the extent of share cannot be decided nor can be
made a subject matter for determination. It is further held that a co-
owner or co-landlord can file a suit for eviction against tenant and for
that purpose, all the co-owners or co-sharers are neither the
necessary parties nor the proper parties. It is clearly and categorically
held and observed that the suit for eviction can be decreed or
dismissed on merits even without the presence of other co-owners or
co-landlords. In such a suit only issue required to be dealt with is
whether there exists any relationship of landlord and tenant and
whether grounds pleaded in plaint for seeking eviction are
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established or not. For adjudication of these issues, the presence of
co-owner is not at all required. It is further clarified by Hon'ble
Supreme Court even if any finding is given by court in an eviction
suit touching to the question of title in respect of suit property, it
would not be binding upon the court which is dealing with an
independent civil suit in respect of partition and declaration of rights
of other co-owners. Similar law is laid down by Hon'ble Supreme
Court in the cases of Kasthuri Radhakrishnan and ors. and India
Umbrella Manufacturing Co. and ors. (cited supra). It is needless to
mention here that the law laid down by Hon'ble Supreme Court
would prevail over the law laid down by Hon'ble High Courts in
accordance with the provisions of Article 141 of the Indian
Constitution.
8. Accordingly, if the facts of present case are looked into, it
becomes crystal clear that the applicant is claiming himself to be a co-
owner in respect of suit property and on that basis, he is seeking to
add himself as a party to this suit. However, in view of the clear law
laid down in Hon'ble Supreme Court in above referred case laws, the
presence of co-owner in an eviction suit is neither necessary nor
proper. If at all, any grievance of co-owner is there, he can approach
the appropriate forum for its resolution. However, for that purpose,
there appears absolutely no necessity to implead the intervener /
applicant as a party to this suit. Therefore, the question of playing
any fraud by the plaintiff by filing this suit does not arise and
therefore, the law laid down in the case of S. P. Chengalvaraya Naidu
(dead) by L.Rs. (cited supra) is not applicable here. Consequently, in
view of all above discussion, following order is passed :-
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ORDER
The application stands rejected.
(D. P. Kasat)
Judge, C.R.No.32 (B.B.)
17.09.2025
Dictated on : 17.09.2025
Checked & signed on : 17.09.2025
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