Order 2

Order Details: Order on Exhibit
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CNR NO.MHSCA-30004312022
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.14
IN
R.A.E. SUIT NO.200 OF 2022
Mr. Kali Savak Suntoke . . Plaintiff.
Versus
Mr. Firoze Kaikhushroo Kanga . . Defendant.
Coram : A.S. Pandagle, Judge
C.R.No.32
Date : 31/7/2023.
ORAL ORDER :
1. Perused the application and say filed thereon.
2. Heard both sides.
3. Present application is filed on behalf of defendant for
dismissal of suit for non joinder of necessary party under Order 1
Rule 9 of the Code of Civil Procedure, 1908. By filing present
application it is contended that the plaintiff has filed present suit for
eviction of defendant who is a senior citizen, a statutory tenant of
the suit property. It is further contended that the suit property is
owned by the owner/landlord M/s. N.M. Wadia Charities as
admitted by the plaintiff in the suit, that it is M/s. N.M. Wadia
Charities who are the head lessors of the suit property. M/s. N.M.
Wadia Charities the owners/landlords of the suit property leased the
suit property to one Mrs.Khorshed S. Suntoke (deceased). It is
further contended that the defendant has only recently learned that
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the suit property as per record of M/s. N.M. Wadia Charities still
reflects Mrs. Khorshed S. Suntoke (deceased) name as the lessee of
the suit property and not the plaintiff. Therefore, no right, title or
interest of the suit property has been transferred on to the plaintiff
by M/s. N.M. Wadia Charities pursuant to Mrs. Khorshed S. Suntoke’
demise. However the plaintiff vide the suit has alleged that the
plaintiff is the present lessee and landlord of the leasehold suit
property. Although the plaintiff has failed to produce on record a
single document to ascertain his right, title and interest in the suit
property. M/s. N.M. Wadia Charities do not recognize the plaintiff as
their rightful lessee of the suit property. The plaintiff has
misrepresented himself as the present lessee and landlord of the
leasehold suit property and has coerced the defendant into paying
the rent and water taxes from April 2021 to March 2022.
4. It is further contended that as per the provisions of
Order 1 Rule 9 of the Code of Civil Procedure, 1908, a suit shall be
defeated for non joinder of necessary party. The plaintiff
intentionally not made M/s. N.M. Wadia Charities a necessary party
to the suit. Therefore, suit of the plaintiff is liable to be dismissed in
its entirety for non joinder of a necessary party.
5. On the other hand, plaintiff by filing reply below Exh.16
resisted the application and contended that the application is illegal,
improper, unjust, without any cause of action, not maintainable, bad
in law and therefore, liable to be rejected with costs. It is further
contended that the defendant is admittedly inducted as tenant of the
suit premises by Mrs. Khorshed S. Suntoke mother of the plaintiff
herein. The said Mrs. Khorshed S. Suntoke expired and all the other
legal heirs except the plaintiff herein have also expired as on date
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and accordingly plaintiff being the only surviving heir and legal
representative of the deceased Mrs. Khorshed S. Suntoke is the
present landlord of the tenant. The present suit is filed in 2022 by
the plaintiff (being landlord) against the defendant (being tenant) in
respect of the suit premises is maintainable under the law, the
defendant voluntarily paid the rent to the plaintiff and admitted the
facts of the plaint in respect of the suit property and now plaintiff is
illegally denied the title and entitlement of the plaintiff in respect of
suit property comprising the suit premises. It is further contended
that head lessor has not privity of contract and interest relating to
relationship/contract in between the plaintiff and the defendant and
hence, the said head lessor M/s. N.M. Wadia Charities are not
necessary and/or proper party to the present suit, therefore, the suit
is not hit by the proviso of Order 1 Rule 9 of the Code of Civil
Procedure, 1908, therefore, submitted that the application may be
rejected with costs.
6. Heard both sides. Ld. Advocate for the defendant, in
advance of argument relied upon the cited case laws in the case of
1] Vidur Impex and Traders Private Limited and Ors. Vs. Tosh
Apartments Private Limited and Ors. [(2012) 8 S.C.C.384], wherein
the Hon’ble Apex Court given broad principles which should govern
disposal of an application for impleadment of party. 2] J.S. Yadav
Vs. State of Uttar Pradesh and Anr. [(2011) 6 S.C.C. 570], wherein it
is observed by the Hon’ble Apex Court that, no order can be passed
behind the back of a person adversely affecting him and such an
order if passed, is liable to be ignored being not binding on such a
party as the same has been passed in violation of the principles of
natural justice. The principles enshrined in the proviso to Order 1
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Rule 9 of the Code of Civil Procedure, 1908, provide that
impleadment of a necessary party is mandatory and in case of non
joinder of necessary party, the plaintiff-petitioner may not be entitled
for the relief sought by him. The litigant has to ensure that the
necessary party is before the Court, be it a plaintiff or a defendant,
otherwise the proceedings will have to fail.
7. On the other hand, Ld. Advocate for the plaintiff in
advance of his argument relied upon the cited case law in the case of
Jagdishrai Shivnathrai Hora Vs. Prabhakar Balkrishna Mahanubhav
[2000 (4) Bom.C.R.778], wherein it is observed by the Hon’ble High
Court that, the petitioner has not set up plea as to title of the plaintiff
to file suit on the ground that the property belongs to Trust in lower
court and further his admission that the plaintiff was collecting rent
of the premises bring him in the definition of landlord under Section
5(3) of the Rent Act.
8. After hearing both sides, gone through the contents of
the application and reply filed thereon, also gone through the record
of the proceedings, present suit is filed by the plaintiff for eviction of
the defendant, the defendant himself in this application contended
that plaintiff coerced the defendant into paying the plaintiff
Rs.78,303/- which supposedly includes rent and taxes etc.
Rs.47,445/- and water tax Rs.30,858/- from April 2021 to March
2022. By way of this application it is contended by the defendant
that plaintiff has not joined M/s. N.M. Wadia Charities as a necessary
party in this suit, the suit property as per record of M/s. N.M. Wadia
Charities still reflects Mrs. Khorshed S. Suntoke (deceased) name as
lessee of the suit property and not plaintiff. On the other hand,
plaintiff contended in his reply that he is only the surviving heir and
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legal representative of the deceased Khorshed S. Suntoke is the
present landlord of the defendant and M/s. N.M. Wadia Charities are
not necessary or property party to the present suit. The present suit
is filed by the plaintiff against the defendant for eviction. As per the
provisions of the Maharashtra Rent Control Act, 1999, we are in no
way concerned with the issue of title in respect of the suit property
and it is enough for the Court to record finding that whether the
defendant is the tenant or whether the plaintiff is the landlord within
the meaning of the Maharashtra Rent Control Act, 1999. This Court
not deciding the title of the parties, therefore, in my opinion, M/s.
N.M. Wadia Charities is not proper and necessary party. The suit can
not be dismissed only on the ground of non joinder of parties, but if
the necessary and proper party is not impleaded in the suit, the suit
is liable to be dismissed. The cited case laws filed by the defendant
are not applicable to the present case. This is the suit for eviction
filed by the plaintiff against the defendant, therefore, application is
liable to be rejected. Hence, I proceed to pass the following order.
ORDER
1. Application is rejected.
2. Costs in cause.
Bandra - Mumbai. ( A.S. Pandagle )
Date : 31/7/2023. Judge, C. R. No.32.
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