1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 411 OF 2009 The Dhulia Motor Owners Co-operative Consumers' Store Limited Dhule Through its Chairman Abdul Kadir Haji Rahimttula Umarani, Age 77 yrs. Occu. Transport, R/o. Lokhand Bazar, Sabir Nagar, Dhule, Taluka & District Dhule. ....Petitioner. Versus 1. Kishor Mohanlal Bafna, Age : Adult, Occu. Business, R/o. 1489, Parola Road, Tq. & Dist. Dhule. 2. M/s. Bharat Petroleum Corporation Ltd., a Body Corporate, registered under Companies Act, having its head office at Mumbai and Branches at various Places through out India. 3. The Territory Manager, M/s. Bharat Petroleum Corporation Ltd., at Manmad, Tq. Nandgaon, District Nasik. ...Respondents. Shri. Girish Rane, Advocate for appellant. Shri. S.V. Gangapurwala Advocate, h/f. Shri. Amol Savant, Advocate for respondent no. 1. Shri. S.D. Kulkarni, Advocate for respondent Nos. 2 and 3. 2 CORAM : R.K. DESHPANDE, J. [Date of reserving the Judgment on 24th of August 2009 Date of pronouncement of Judgment 14th of September 2009] ORAL JUDGMENT : 1. The appellant in this appeal is the 'Dhulia Motor Owners Co- operative Consumers Store Limited, Dhule,' a society registered under the Co-operative Societies Act, 1960 (hereinafter referred to as "the said society"), has filed the instant appeal, challenging the judgment and decree dated 12th of September 2008, passed by the learned Civil Judge, Senior Division, Dhule in Special Civil Suit No. 155/2005, filed by Shri. Kishore Mohanlal Bafna, the respondent No. 1 herein and, the original plaintiff. The respondent Nos. 2 and 3 M/s. Bharat Petroleum Corporation Ltd. and its Territory Manager, respectively, are the original defendant Nos. 1 and 2 in the Special Civil Suit No. 155/2005 filed by the plaintiff. The appellant was neither a plaintiff nor a defendant in the said civil suit. However, on obtaining leave from this Court by order dated 12.2.2009 the instant appeal has been preferred. The respondent Nos. 1, 2 and 3 herein, shall be referred to hereafter by their original status as "plaintiff and defendant Nos. 1 and 2" whereas appellant shall be referred to as "the society". 2. The respondent No. 1 plaintiff filed Special Civil Suit No. 155/2005 3 against the defendant Nos. 2 and 3, claiming the relief of direction to the defendants to surrender the vacant, peaceful possession of the suit property and further to pay damages along with interest. The plaintiff also claimed an inquiry into the mesne profit under Order 20, Rule 12 of Civil Procedure Code. The dispute in the said Special Civil Suit pertained to non-agricultural land bearing survey No. 484/1, admeasuring 28.33 R. situated at Dhule, Taluka and District Dhule. The plaintiff claimed the ownership of the suit property on the basis of registered sale deed executed by the legal representatives of the original owner and several release deeds executed by other co-owners in favour of plaintiff. The plaintiff alleged that the defendant No. 1 M/s. Bharat Petroleum Corporation Ltd. was the successor in title of the original lessee Burma Shell Oil Storage and Distribution Company of India Limited, from the predecessor in title of the plaintiff i.e. one Mahemood Abdul Majid, for the period of 20 years. It was alleged that by virtue of Burma Shell (Acquisition of Undertakings of India) Act, 1976 which was brought in to force from 24.9.1976, the business of petroleum product was nationalized and it was taken over by the Government of India through its Company i.e. the defendant No. 1 M/s. Bharat Petroleum Corporation Ltd. It became the tenant of original lessor. The plaintiff alleged that the defendant corporation was defaulter in payment of rent and by influx of time, the tenancy in respect of the suit property stood terminated. It was further alleged that the suit was filed on the basis of the notice issued under section 106 of the Transfer of Property Act for eviction of the 4 defendant and for delivering possession of the suit property to the plaintiff. 3. The defendants filed joint written statement on 18.8.2006. The defendant No. 1 is the lessee of the original lessor/landlord. However, they claimed that they have got the right of renewal of lease and hence, are entitled to retain the possession of the suit property and cannot, therefore, be evicted. The defendants further raised an objection that there are other co-owners of the suit property, who have not been joined as a plaintiff. Hence, the suit is liable to be dismissed for non joinder of necessary parties. The Trial Court framed the following issues and recorded its findings as under :- "I S S U E S F I N D I N G S 1. Whether the plaintiff proves his title over the suit property ? Yes. 2. Whether the plaintiff proves that the suit property is unauthorized and illegal possession of the defendant No. 1 since the year 1983 ? No. 3. Whether the plaintiff proves that the defendant is defaulter ? No. 3A. Whether the plaintiff further proves that the original lessor executed Power of Attorney in favour of Mujeeb Shaikh Mehmood and/or Mehmood Hussain Shaikh Ahmad ? No. 4. Whether the plaintiff is entitled for the possession of the suit property ? Yes. 5 5. Whether the plaintiff is entitled for damages of Rs. 2,25,000/- ? No. 6. Whether the plaintiff is entitled for future interest on the amount of Rs. 2,25,000/-. If so, at what rate ? No. 7. Whether the plaintiff is entitled for mesne profits ? Yes. 8. Whether the suit is barred by jurisdiction ? No. (Decided as per Judgment dated 12.12.2006) 9. Whether the suit is tenable ? Yes. (Decided as per Judgment dated 12.12.2006) 9A. Whether the suit is nullity ? No. (Decided as per Judgment dated 12.12.2006) 10. Whether the suit is bad for non joinder of necessary parties ? No. (Decided as per Judgment dated 12.12.2006) 10A. Whether the plaintiff further proves that he has cause of action to file suit under the Rent Act ? Yes. 11. Whether the suit is bad for want of notice to the defendant U/Sec. 80 of Code of Civil Procedure ? No. (Decided as per Judgment dated 12.12.2006) 12. Whether the suit is barred by principle of res-judicata in view of the judgment and decree passed in R.C.S.No. 481/82 ? No. 12A. Whether the plaintiff has properly valued the suit property ? Yes. 13. Whether the defendant has paid Rs. 47,779/- to the Government towards the No. 6 revenue of the suit property. If so, whether the defendant is entitled to apply that amount towards payment of rent of the suit property ? 14. Whether the defendant proves that they have exercised their contractual and statutory right of renewal of lease and on that ground the suit for eviction is premature ? No. 15. What order and decree ? As per final order. " 4. The objection regarding the non joinder of necessary party in respect of which issue No. 10 was framed pertained to non joinder of other co-owners of the suit property as plaintiffs in the suit. 5. Upon the application preferred by the defendants for deciding the preliminary issues first, the Trial Court decided the preliminary issues which were at Sr. Nos. 8, 9, 9A, 10 and 11, reproduced above, by its order dated 12.12.2006. The contention of the defendants that the suit was bad for non joinder of necessary parties i.e. the co-owners of the suit property, was answered in negative. This order dated 12.12.206 passed by the Trial Court was the subject matter of the Civil Revision Application No. 130/2007 which was ultimately dismissed on 26th November 2007. Thus, the preliminary issue regarding non joinder of the co-owners as party to the suit became final and binding on the parties. 6. The appellant Society, thereafter, moved an application under 7 Order 1, Rule 10 of Civil Procedure Code at Exh. 99 for joining as party defendant in the said special civil suit. The same was dismissed by reasoned order dated 19.4.2008 by the Trial Court. Being aggrieved by the said order, the appellant Society, preferred Writ Petition No. 3484/2008 before this Court which was dismissed by an order dated 9th of July 2009. Against this judgment, the appellant society preferred Special Leave Petition (S.L.P.) before the Hon'ble Apex Court. During the pendency of the S.L.P., the Special Civil Suit No. 155/2005 was decreed by judgment and order dated 12.9.2008 passed by the Trial Court. When the matter came up before the Apex Court on 17.11.2008 the Apex Court passed an order disposing of the said S.L.P. as under :- "Upon hearing counsel the Court made the following O R D E R Heard learned counsel for the petitioner. After some arguments, learned counsel appearing on behalf of the petitioner is permitted to withdraw the special leave petition as the Trial Court has passed decree for eviction. We may, however, observe that, against the decree, it will be open to the petitioner to prefer an appeal in accordance with law and make a prayer therein for grant of interim relief. The special leave petition is, accordingly, disposed of. " 7. In view of above order, the appellant society was granted leave by an order dated 12.2.2009 passed by this Court to prefer this appeal. 8. The learned counsel for the appellant Shri. Rane, relying upon the various clauses of the agreement dated 19th of August 1963, entered into 8 between the predecessor in title of the defendant Burma Shell Oil Storage and Distribution Company of India Limited and the appellant society for dispensing pump and selling license, urged that the appellant society was sub-lessee in respect of the suit property since August 1963 and it was in exclusive possession of the suit property. Shri. Rane, the learned counsel, urged that by virtue of the provisions of section 15(A) read with section 14(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and the provisions of section 7(15) of the Maharashtra Rent Control Act, 1999 read with section 7(c) of the Bombay General Clauses Act, the appellant Society became the deemed tenant of the original lessor and its tenancy was protected by the provisions of Maharashtra Rent Control Act, 1999. According to the learned counsel, no decree for eviction and possession can be passed against the appellant Society except in accordance with the provisions of Maharashtra Rent Control Act, 1999. According to the learned counsel, the appellant Society was necessary party to the Special Civil Suit No. 155/2005 and in the absence of the appellant Society being joined as the defendant in the said suit, the decree passed therein is rendered nullity and not binding upon the appellant Society. 9. Shri. Gangapurwala, the learned counsel appearing for the respondent plaintiff, by referring to various clauses of the agreement dated 9th of July 1963, regarding dispensing pumps and selling license, urged that it was merely a license to run the petrol pump and the 9 physical possession of the suit property was exclusively retained under the said agreement with the defendant M/s. Bharat Petroleum Corporation Ltd. He has further pointed out the stand of the defendant No. 1 in the written statement to the effect that it is in exclusive possession of the suit property which was in favour of the predecessor in title of M/s. Bharat Petroleum Corporation Ltd. Relying upon the provisions of section 7(9) of the Maharashtra Rent Control Act, 1999, the learned counsel contended that the premises means any building or part of the building let or given on license, which, according to him, does not include the open land. According to him, the lease in question was of the open land without any structure standing thereon. He further relied upon the provisions of section 15(A) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 to urge that the possession of at least one room is sine-qua-non for applicability of the said Act. According to him, the provisions of the said Act, therefore, are not applicable and consequently, the appellant Society, according to him, was not entitled to any protection under the provisions Maharashtra Rent Control Act 1999. 10. Both the learned counsel appearing for the respective parties have relied upon several judgments which are given below. (a) AIR 1987 Supreme Court 117(1), Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram; 10 (b) 2008 (3) Bom. C.R. 897, Hindustan Petroleum Corporation Ltd. Vs. Chandulal; (c) 1988 (1) Bom.C.R. 358, Goregaon Malayalee Samaj Vs. Popatlal Prabhudas and Sons; (d) AIR 1997 SCC 404, Nalanikant Vs. Tulasibai; (e) 1990 (1) Bom. C.R. 606, Mrs. Phatimabai Vs. Mohd. Khalil; (f) AIR 1981 SCC 1998, Ludhichem Agencies Vs. Ahmed R.V.; (g) AIR 1964 SCC 1889, Rupchand Gupta Vs. Raghuwanshi; (h) 2003 (5) Bom. C.R. 790, Hindustan Ferrodo Ltd. Vs. Hari Lachman Hasija; (i) 1989 (3) Bom. CR. 313, Tukaram SawantVs. Smt. Mangalalaxmi; (j) 1993 Mh.L.J. 1730, Mahebubsaheb Vs. Shri. Siddeshwar Sanstha. 11. The first question, which is required to be considered in the light of rival claims of the parties, is whether the appellant Society was the necessary party to the Special Civil Suit No. 155/2009. The second question, which needs consideration, is whether the grant of leave by this Court by order dated 12.2.2009 to the appellant Society, to file instant appeal confers upon the appellant a legal right to participate in the proceedings of the Special Civil Suit No. 155/2005 and to get his claim adjudicated. The third question which arises is regarding the protection as a tenant/deemed tenant, claimed by the appellant Society in the light of various provisions of the enactments referred to in earlier paras. 11 12. Before dealing with the first question regarding the appellant Society being necessary party to the Special Civil Suit No. 155/2005, certain undisputed factual position need to be looked in to. It is not in dispute that the appellant Society was not joined as a party in the Special Civil Suit No. 155/2005 and the decree for eviction and possession along with the future mesne profit, interest etc. has been passed against the original defendants only. The Special Civil Suit No. 155/2005 was instituted on the basis of the notice of terminancy of tenancy issued under section 106 of the Transfer of Property Act 1887 on the ground that the defendants/tenants were the defaulters in payment of rent and that the tenancy expired by influx of time. The defendants have not taken stand that they had created sub-lease in respect of the suit property in favour of the appellant Society and that the appellant Society was pursuant to any such agreement put in exclusive possession of the suit property. The defendants have also not raised an objection that the appellant Society was necessary party and that for non joinder of appellant Society to the Special Civil Suit No. 155/2005, the suit was bad and liable to be dismissed. 13. In the light of aforesaid factual position, the first question regarding non joinder of necessary parties needs to be considered. It cannot be disputed that the plaintiff is dominus litis and he cannot be forced to add the parties against whom he does not want to file unless it 12 is a compulsion of rule of law. It is the choice of the plaintiff to implead only those persons as defendants against whom he wishes to proceed. However, if the facts and circumstances of the case pleaded and reliefs claimed required any person to be joined as a party to the suit without whom no order can be made effectually, Order 1, Rule 10 (2) confers a discretion upon the Court to add at any stage of suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The question of impleadment of necessary party has to be decided on the touch stone of Order 1, Rule 10(2) of the Civil Procedure Code which is reproduced below :- "ORDER 1 "1. ........... 2. ........... ........... ........... 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 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 bana 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 13 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." 14. Bare perusal of the aforesaid rule 10(2) indicates that the Court may at any stage of proceedings, either upon or without application of either party, on such terms as may appear to the Court to be just, order 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. In the present case, none of the parties have raised objection that the appellant Society was necessary party to the proceedings of Special Civil Suit No. 155/2005. The issue regarding non joinder of necessary parties, framed at Sr. No. 10 raised by the defendants, pertained only to non joinder of co-owners of the suit property as necessary parties and not the appellant Society. The Trial Court by its order passed below Exh. 99 on 19.4.2008 has rejected the application filed by the appellant Society Under Order 1 Rule 10(2) of C.P.C. for joiner of the appellant as necessary party to the suit. The Trial Court has in exercise of its discretion ruled that the appellant plaintiff is not necessary party to the suit. This order as pointed out earlier was the subject matter of challenge in Writ Petition No. 3484/2008 which was dismissed by this Court on 9th of July 2008. The S.L.P. fled against this order has been withdrawn and the only observation made by the Apex Court was that it was open for 14 the appellant Society to prefer an appeal in accordance with the provisions of law. Thus, in my view, the order passed by the Trial Court on 19.4.2008 below Exh. 99 holding that appellant Society is not necessary party, has become final and cannot now be reopened. 15. Apart from that even otherwise in my opinion the appellant Society is not necessary party to the Special Civil Suit No. 155/2005 for the reasons that :- (i) The plaintiff is a dominus litis and cannot be forced to add the parties against whom he does not want to fight, (ii) Looking in to the nature of the controversy involved in the suit and the reliefs claimed, it is not necessary for the Court to order joining of the appellant Society as a necessary party to the suit to effectually and completely adjudicate upon and settle all the questions involved in the suit. There is no relief claimed against the appellant Society and the decree can be passed in the absence of the appellant, (iii) The addition of appellant society as a party defendant to the suit would enlarge the issue involved in the suit. 15 In this respect some of the judgments of the Apex Court may usefully be referred to and relied upon. The Apex Court in its decision reported in (1992) 2 SCC 524 Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay considered the question, whether the respondent No. 2 therein was necessary or proper party to be joined as defendant under Order 1, Rule 10 of the Civil Procedure Code in the suit instituted by the appellant against the respondent No. 1. The appellant, who was the original plaintiff was dealer of Hindustan Petroleum Corporation Ltd., the original lessee and was in possession of the service station erected on the land held by the respondent No. 2. The respondent No. 1 Municipal Corporation issued the notice of demolition of two chattels on the terrace on the ground that they were unauthorized constructions. The appellant dealer instituted the suit for injunction, restraining the Municipal Corporation from demolishing the constructions. The Hindustan Petroleum Corporation Ltd., who was the lessee, filed an application under Order 1, Rule 10 for joining as defendant in the suit and supported the stand of the Municipal Corporation. The trial Court as well as the High Court held that the Hindustan Petroleum Corporation Ltd. was necessary party to the suit, which was the subject matter of challenge in S.L.P. The Apex Court set aside the orders passed by the High Court as well as the Trial Court and it was held that the Hindustan Petroleum Corporation was not the necessary party in the suit. The Apex Court held that if the intervener has cause of action against the plaintiff relating to the subject matter of the 16 existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions. In para 14 and 15 of the said judgment, the Apex Court has held as under :- "14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally and is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael tuck & Sons Ltd., wherein after quoting the observations of Synn-Parry J. in Dollfus Mieg et Compagnie S.A. v. Bank of England, that their true test lies not so much in an analysis of what