1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil Misc. Appeal No.503/1998. (Gyan Prakash & Another Vs. M/s Dhanraj Deo Kishan & Another) DATE OF JUDGMENT : April 13, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Mr. A.K. Rajvanshy for the appellants. Mr. J.K. Bhaiya for the respondents. BY THE COURT : Instant appeal has been filed under Section 104, read with Order 43 Rule 1(u), C.P.C. for challenging the order dated 30.05.1998 passed by Addl. District Judge No.2, Bikaner in Civil Appeal Decree No.66/84 (50/97), whereby, learned lower appellate Court remanded the case under Rule 23A of Order 41, C.P.C. for trial according to law. As per facts of the case, appellants' father late Onkar Dutta let out a shop and nohra, situated at Nokhamandi, Bikaner to respondents on rent at the rate of Rs.300/- per month. Onkar Dutta died on 2 10.10.1981 leaving behind the appellants, eldest son Durga Dutta and widow Smt. Suraj Devi. Brother of the appellants, Durga Dutta while claiming himself to be the landlord of the aforesaid premises filed suit No.44/82 against respondent Deo Kishan for eviction of the premises. Before the trial Court, the respondents denied title of Durga Dutta and pleaded that after death of Onkar Dutta they have attorned appellant Gyan Prakash and also had been paying rent to him even during lifetime of Onkar Dutta up to 10.10.1981 and, thereafter, they have paid rent to appellant Gyan Prakash up to March 1983. In the said civil suit No.44/82 filed by Durga Dutta against the respondents, trial Court determined provisional rent but the respondents did not pay the arrears of rent as determined by the Court nor they paid the monthly rent as per order of determination of rent, therefore, trial Court struck off defence. Respondent tenants filed civil suit No.57/83 under Order 35 Rule 1, C.P.C. for impleading the appellants as defendants. The appellants made an application under Rule 5 of Order 35, C.P.C. that respondents are admittedly tenants of the appellants, therefore, inter- 3 pleader suit filed by the respondents (herein) is not maintainable. Therefore, upon application filed under Rule 5 of Order 35, C.P.C. learned trial Court dismissed the suit vide order dated 29.10.1983. Being aggrieved by order dated 29.10.1983, whereby the trial Court dismissed suit No.57/83, the respondents preferred appeal on the ground that order has been passed under Order 7 Rule 11, C.P.C., therefore, even if no decree was drawn by the trial Court the appeal lay to District Judge. Said appeal was opposed by the appellants raising preliminary objection that order dated 29.10.1983 has been passed by the trial Court under Order 35 Rule 5, C.P.C., therefore, appeal against the order does not lie but the learned Addl. District Judge No.2, Bikaner did not consider the objection raised by the appellants and allowed the appeal vide order dated 30.05.1998 and remanded the case under Order 41, C.P.C. for trial according to law. In the present appeal, the appellants are challenging the validity of that order dated 30.05.1998 passed by Addl. District Judge No.2, Bikaner. Learned counsel for the appellants vehemently argued that the order under challenge is contrary to basic principles of law. The trial Court passed order on 4 29.10.1983 upon application filed by the appellants under Rule 5 of Order 35, C.P.C. and since the order was not passed under Order 7 Rule 11, C.P.C. learned lower appellate Court committed gross illegality in exercising jurisdiction of appeal. The learned Addl. District Judge has misled himself to understand the relevant provisions contained in Order 35 Rule 5, C.P.C. and Order 7 Rule 11, C.P.C. and impugned order has been passed arbitrarily in complete disregard of the established provisions of law. Learned counsel for the appellants invited my attention towards Order 35 Rule 5, C.P.C. and submits that the respondents being tenants cannot be permitted to file inter-pleader suit because for the premises in question another suit is already filed against them for eviction which is not in dispute. Therefore, the order impugned in this appeal dated 30.05.1998 deserves to be quashed and set aside and order passed by the learned trial Court deserves to be restored. Per contra, learned counsel appearing on behalf of the respondents vehemently argued that although they are tenants but the learned lower appellate Court while considering the provisions of Order 35 Rule 5, C.P.C. rightly remitted the case for trial to the trial Court while 5 quashing order dated 29.10.1983 in which there is no illegality. I have considered the rival submissions made by both the parties and perused order dated 29.10.1983 passed under Order 35 Rule 5, C.P.C. upon which objection was raised by the appellants before the trial Court and learned trial Court dismissed the suit. Rule 5 of Order 35 of the Code of Civil Procedure reads as under : “5.Agents and tenants may not institute interpleader suits.-Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim thjrough such principals or landlords.” Upon perusal of the facts, it is undisputedly suit for eviction against the respondent-tenants filed by Durga Dutta which is under adjudication and respondents being tenants preferred a separate inter- pleader suit under Order 35 Rule 1, C.P.C. against the appellants but, in view of Rule 5 of Order 35 of the Code of Civil Procedure mentioned above, in my opinion, the tenant cannot be permitted to file suit against the landlord and this aspect of the matter has not been considered by the lower appellate Court 6 although it is expressly provided under Order 35 Rule 5, C.P.C. that nothing in this order shall be deemed to enable the agents to sue their principals, or tenants to sue their landlords for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords. In this view of the matter, this appeal is allowed. Order impugned dated 30.05.1998 passed by Addl. District Judge No.2, Bikaner in Civil Appeal Decree No.66/84 (50/97) is quashed and set aside. Order dated 29.10.1983 passed by the trial Court is hereby restored. (Gopal Krishan Vyas) J. Ojha, a.