CR No.346 of 2011 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.346 of 2011 (O&M) Date of Decision: 08.04.2011 Smt. Shanti Devi . . .Petitioner Versus Vijay Kumar Bansal and others . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Harsh Aggarwal, Advocate, for the petitioner. Mr.C.M. Makkar, Advocate, for respondent No.1. ***** RAKESH KUMAR JAIN, J (ORAL) The question involved in this revision petition is “as to whether legal heir of the tenant can be allowed to be impleaded as party on an application filed under Order 1 Rule 10 Code of Civil Procedure, 1908 (for short ‘CPC’) if the other legal heirs of the tenant are pursuing the eviction petition and have not done any act prejudicial to the interest of the applicant, who wanted to be impleaded as a party? In brief, the landlord filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) in order to seek eviction of Vinod Kumar Goyal and Satish Kumar Goyal from the demised premises (shop) which has been allegedly in possession of Shiv Charan Dass at a monthly rent of `20/-. The eviction petition was filed, inter alia, on the ground of arrears of rent and personal necessity. Eviction petition was contested by Vinod Kumar Goyal and Satish Kumar Goyal by filing written statement. When the eviction petition was at the stage of rebuttal evidence, an application was moved by Smt. Shanti Devi (petitioner) under Order 1 Rule 10 of the CPC for impleading herself to be a party on the ground that she has already inherited tenancy from CR No.346 of 2011 (O&M) - 2 - Shiv Charan Dass alongwith her sons. However, in the application, she did not allege a word that her interest is not being watched by her sons or their action is prejudicial to her interest in prosecuting the eviction petition. Application was contested by the landlord which was ultimately dismissed vide impugned order dated 8.1.2011. Hence the present revision petition has been filed. Learned counsel for the petitioner has argued that if the tenancy is the property then after the death of the tenant the property rights devolve upon the heirs of the tenant and accordingly the petitioner had also inherited the said tenancy rights along with her sons and should have been impleaded as a party in the eviction petition which has been filed after the death of original tenant. In support of his submission, he has relied upon a Single Bench judgment of this Court reported as “Paro Devi and others Vs. Sukh Devi” 1985(2) PLR 373. In reply, learned counsel for the respondents has submitted that the petitioner is neither a necessary party nor can become a party in the petition until and unless she alleges that her co-heirs are in collusion with the landlord or her interest is not being watched by them. He submits that had it been such a situation she would definitely have a right to be impleaded as a necessary party to protect her interest but as there is no averment in the application filed under Order 1 Rule 10 of the CPC alleging collusion or acting malafidely on the part of the other co- heirs, she is not entitled to be impleaded as a party. In support of his submissions he has relied upon “Surayya Begum (Mst) Vs. Mohd. Usman and others” 1991 (3) Supreme Court Cases 114, “Shakuntala Vasant Pahadi and others Vs. Purushottam Vasant Pethe and others” 2007(2) Rent Control Reporter 276 and Single Bench judgment of Himachal Pardesh High Court titled as “Leela Sood and others Vs. Manohar Lal” 2009(1) RCR 205. I have heard learned counsel for the parties and perused the record with their able assistance. In order to appreciate the controversy, it is worthwhile to refer to Order 1 Rule 10 of the CPC, which is invoked by the petitioner for the purpose of getting herself impleaded in the pending eviction petition. Order 1 Rule 10 of the CPC is reproduced as under: - “10. Suit in name of wrong plaintiff - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether CR No.346 of 2011 (O&M) - 3 - it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties – The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended – Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks, on the original defendant. (5) Subject to the provisions of the [Indian Limitation Act, 1877 (15 of 1877), Section 22] the proceedings as against any person added as CR No.346 of 2011 (O&M) - 4 - defendant shall be deemed to have begun only on the service of the summons.” The aforesaid provisions have three parts where it provides that if the suit has been instituted in the name of wrong person as plaintiff or where even it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit or if satisfied that there has been bona fide mistake and it is necessary for the determination of the matter in dispute so to do, can order for impleadment of any other person or may also order for the purpose of striking out the name of the person, who is wrongly arrayed in the array of the parties. The learned Rent Controller has carefully analysed the grounds as taken up in the application by the petitioner in order to do substantial justice between the parties for the purpose of finding out as to whether the presence of Smt. Shanti Devi (petitioner) is necessary or even proper before the Rent Controller in the eviction petition which has been filed by the landlord seeking eviction on the ground of non-payment of rent and personal necessity. Insofar as judgment relied upon by learned counsel for the petitioner in Paro Devi and others (Supra) it was held that a person who has also inherited tenancy right is a necessary party and is required to be impleaded in the eviction petition but thereafter judgment of Supreme Court has come in the case of Surayya Begum (Mst)(Surpa) in which it was held that if the co-heirs of a deceased tenant is not impleaded and his/her interest is being not watched properly by the other co-heirs or they are in collusion with the landlord or acting mala fide then the said person is entitled to be arrayed as a party respondent in the eviction petition otherwise if there is no such allegation in the application then the said person is not entitled to be impleaded as such. Similar view has been taken by the Supreme Court in other case Shakuntala Vasant Pahadi and others (Supra) and also followed by Himachal Pradesh High Court in the case of Leela Sood and others (Supra). In view of the above discussion and particularly in view of the fact that there is no allegation by the present petitioner against the other co-heirs of the tenant with regard to their collusion with the landlord or that sufficient interest is not being taken in the eviction petition which is otherwise hotly contested by other co-heirs, she is not entitled to be impleaded as party at the fag end of the case where the respondents are leading their own evidence. CR No.346 of 2011 (O&M) - 5 - In view thereof, I do not find any merit in the present revision petition and as such the same is hereby dismissed. No costs. (RAKESH KUMAR JAIN) APRIL 08, 2011 JUDGE Vivek