IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. O.M.P. No. 212 of 2010 in Civil Suit No. 43 of 2009. Reserved on: 28.09.2010. Decided on: 26.10.2010. _____________________________________________________ Society for Health & Social Transformation, Rehabilitation, a Society registered under the Societies Registration Act having its registered office at Village Ghordour, P.O. Larankelo, Tehsil and District Kullu, H.P. through its President, Dr. Mother Wangmo. …Plaintiff/Non-applicant. -Versus- Kimtu Devi and others. …Defendants. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 __________________________________________________________ For the plaintiff/Non- applicant. : Mr. K.D. Sood, Advocate with Mr. Rajnish K. Lall, Advocate. For defendant No. 1/ applicant. : Mr. S.S. Mittal, Senior Advocate with Mr. Surinder P. Sharma, Advocate. For defendants/Non- Applicants No. 2 to 5. : Mr. Vikram Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Material facts necessary for adjudication of this application are that the Non-applicant/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake), has filed an interpleader suit under Order 7 Rules 1 and 2 read with Section 26 and Section 88 of the Code of Civil Procedure read with Sections 5 and 7 of the Delhi High Court Act, as applicable to Himachal Pradesh. 1 Whether the reporters of the local papers may be allowed to see the judgment? 2. The plaintiff is a Society registered under the Societies Registration Act, having its registered office at village Ghordour, P.O. Larankelo, Tehsil and District Kullu, H.P.. Plaintiff-Society had entered into lease deed (Memorandum of Understanding) dated 15th October, 1998 with applicant- defendant No.1 (hereinafter referred to as “defendant No. 1” for convenience sake), whereby she had agreed to lease double floor building alongwith land in village Ghorhdor, Post Office Larankelo, Kullu, H.P. for a period of five years at a rental of ` 2,10,000/- per annum w.e.f. 1st May, 1999, out of which, a sum of ` 1,30,000/- had been paid vide cheque No.RPJ 010931, drawn on Punjab National Bank, Naggar. This Memorandum of Understanding was followed by another agreement (lease deed), dated 4th January, 1999, followed by an agreement dated 1st July, 1999, by which certain funds were advanced by the plaintiff to defendant No. 1 for construction of the property. Another agreement of understanding was arrived at between the plaintiff and defendant No. 1 on 4th November, 1999, whereby the suit property was agreed to be leased out to the plaintiff for 99 years for consolidated amount of `50,00,000/-. It is further averred that Shri Gehru, son of Shri Biru was the owner-in- possession of the land comprising Khata Khatauni No. 596/1239, Khasra No. 36, 5048/52,6000/1364 and 46, Kite 4, measuring 08-12 bighas and Khata Khatauni No. 55 min, 55 min, 55 min, 55 min, Kite 5, measuring 31-5-0 Bighas according to the Jamabandi for the year 1970-71, situated in Phati Nathan Kothi Naggar, Tehsil and District Kullu, H.P. Shri Gehru through his wife and General Power of Attorney Smt. Shobi sold 28 bighas of land to Shri Charan Dass Dogra out of the above mentioned land comprising Khasra No. 64, 604/55, 6042/55, 36, 484/52 and 58 according to the Jamabandi for the year 1976-77. Defendant No. 1 instituted a Civil Suit No. 63 of 1983, titled as Kimtu versus Rama Dogra and others in this Court, claiming herself to be the next friend of Gheru, challenging the sale deeds made in favour of Charan Dass Dogra. The same was dismissed by this Court on 10th January, 1997. The defendant No. 1 preferred Regular First Appeal bearing No. 355 of 1997, challenging the judgment and decree dated 10th January, 1997. The same was allowed by this Court and in execution of the decree dated 25.02.1997, the possession of the land was delivered to Kimtu. There was a litigation between Kimtu, Sheela Devi and Lacchmi Devi. Regular Second Appeals No. 127 of 1994 and 269 of 1993 preferred by defendant No. 1 were dismissed by this Court. Plaintiff received notice from defendants/non- applicants No. 2 to 4 claiming themselves to be the owner of the property and that she was not entitled to sell, transfer and encumber the property or receive any rent etc. and they are the owners of the property having been inherited by them from their father, Shri Charan Dass Dogra. The defendant No. 1 had instituted a suit bearing No. 28 of 2007 for possession and recovery of `3,25,000/- in the Court of Civil Judge, Senior Division, Kullu against the plaintiff. The same is still pending. According to the plaintiff, defendant No. 1 and her husband Kapoor Singh Thakur had been interfering with the hospital staff and causing doctors and workers not to work in the hospital. The plaintiff has prayed for the following relief: “The plaintiff, therefore, prays that interpleader suit may be entertained and decreed and the adverse claims of defendants inter se them regarding the property, the money due from the plaintiff and the right of the defendants to get the possession of the property and enforcement of the respective obligations determined against all the claimants as also the decision as to whom the payment or delivery of the property has to be made by the plaintiff and the plaintiff’s society is indemnified and it is not vest various litigations. A decree for injunction restraining the defendants from interfering with the possession and running of the hospital in the building and the land in possession of the plaintiff comprised in Khasra No. 56, 55/2 in Up Mohal Ghodour, P.O. Larankelo, Tehsil and District Kullu, H.P. be also passed in favour of the plaintiff and against the defendants. Such other relief which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case be also passed in favour of the plaintiff and plaintiff be also allowed costs of the suit.” 3. Plaintiff has also filed O.M.P. No. 264 of 2009 under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. This Court directed the parties to maintain status vide order dated 20.07.2009. 4. The defendant No. 1 has filed written statement to the plaint. She has taken the preliminary objection that the plaintiff had taken on lease the disputed property standing on Khasra No. 56 & 55/2 from her and accepted her as the owner of the property. The Society had been dealing with the property as the property of the defendant No. 1. It is further stated that she is daughter of Gehru. She was put in possession in execution of the decree passed in Civil Suit No. 31 of 1981. On merits, it is admitted that the plaintiff and defendant No. 1 had entered into various agreements with regard to suit property. However, it is denied that any final agreement was executed between the parties for lease of suit property for 99 years. 5. Defendant No. 2 has also filed a separate written statement. She has also taken preliminary objection to the effect that this suit is bad for non-joinder of necessary parties. She has relied upon the judgments rendered by this Court in R.S.A. No. 127 of 1994 and R.S.A. No. 269 of 1993. It is also averred that Smt. Shobi was the legally wedded wife of Shri Gehru and he has given his power of attorney to his wife Smt. Shobi. The power of attorney was registered in the office of Sub-Registrar, Kullu on 28.08.1962. Smt. Shobi has sold 28 bighas of land to Shri Charan Dass Dogra and the land was comprised in Khasra No. 64,604/55, 6042/55,36, 484/52 and 58 as per Jamabandi for the year, 1976- 77. Thereafter, Shri Charan Dass Dogra has developed the land and planted an apple orchard over the aforesaid property. 6. The defendant No. 1 has filed the present application under Order 7 Rule 11-A read with Section 151 of the Code of Civil Procedure with a prayer that the plaint may be rejected. The plaintiff has filed reply to the same. 7. Mr. S.S. Mittal, learned Senior Advocate with Mr. Surinder P. Sharma, Advocate has strenuously argued that the interpleader-suit is not maintainable under Section 88 read with Order 35 Rule 5 of the Code of Civil Procedure and Section 116 of the Indian Evidence Act. According to him, the plaintiff being tenant is estopped from challenging the title of landlord, i.e., defendant No. 1. 8. Mr. K.D. Sood and Mr. Vikram Thakur, Advocates have vehemently argued that the interpleader-suit is maintainable. 9. I have heard the learned counsel for the parties and gone through the pleadings carefully. 10. It will be apt at this stage to refer to Section 88 of the Code of Civil Procedure, 1908, which reads thus: “88. Where interpleader-suit may be instituted.- Where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself: Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.” 11. Order 35 Rule 5 of the Code of Civil Procedure reads thus: “5. Agents and tenants may not institute interpleader suits.- Nothing in this Order shall be deemed to enable agents to sue their principles, 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. 12. Section 116 of the Indian Evidence Act, 1872 reads thus: “116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.” 13. It is evident from the pleadings that the plaintiff has entered into various agreements with defendant No. 1. Plaintiff has recognized the defendant No. 1 as landlord. The defendant No. 1 has instituted a Civil Suit No. 63 of 1983 in this Court. The learned Single Judge has dismissed the same. The defendant No. 1 preferred an appeal against the judgment and decree passed by the learned Single Judge. The R.S.A. was accepted and the judgment and decree of the learned Single Judge was set aside. Thereafter, in execution, the defendant No. 1 was put in possession over the suit property. Plaintiff has no concern as far as R.S.A.No. 127 of 1994 and R.S.A. No. 269 of 1993, decided by this Court on 23.04.2008 are concerned. It is evident that the present suit is collusive in nature. It lacks the basic characteristics of interpleader suit. It is clear that the notice has been issued to the plaintiff by defendants No. 2 to 4 after the judgments and decrees rendered by this Court in R.S.A. No. 127 of 1994 and R.S.A. No. 269 of 1993, decided on 23.04.2008. 14. Defendant No. 1 had already instituted a Civil Suit No. 28 of 2007 for possession and recovery of `3,25,000/- in the Court of Civil Judge, Senior Division, Kullu. This suit is still pending. The interpleader suit can be instituted only as per the phraseology employed in Section 88 of the Code of Civil Procedure, where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself. The present suit has not been instituted as per Section 88 of the Code of Civil Procedure. The plaintiff has prayed for injunction restraining the defendants from interfering with the possession and running of the hospital in the building and the land in possession of the plaintiff comprised in Khasra No.56, 55/2 in Up Mohal Ghodour, P.O. Larankelo, Tehsil and District Kullu, H.P. Plaintiff has also obtained an interim order on 20.07.2009. Once the plaintiff has recognized the defendant as landlord and had been dealing with her as landlord, he is estopped from instituting an interpleader suit. A bare perusal of Order 35 Rule 5 of the Code of Civil Procedure makes it abundantly clear that nothing in this Order shall be deemed to enable agents to sue their principles, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principles or landlords. It is also evident from the language of Section 116 that the tenant cannot challenge the title of landlord. 15. A Division Bench of Bombay High Court in Yashwant Bhikaji Vilankar Versus Sadashiv Govind Arekar and another, A.I.R. 1940 Bombay 414 have held that a tenant is not permitted to deny his lessor’s title at the commencement of the tenancy, and therefore, in order that an interpleader suit may lie, the claim of the party other than the land lord must be consistent with the title of the landlord at the commencement of the tenancy in question. Their Lordships have held as under: “The basis of the English rule is the principle underlying S. 116, Evidence Act. A tenant is not permitted to deny his lessor's title at the commencement of the tenancy, and therefore in order that an interpleader suit may lie, the claim of the party other than the landlord must be consistent with the title of the landlord at the commencement of the tenancy in question. The plaintiff therefore is in this dilemma. Either defendant 1 has no title at all, in which case he cannot be said to be claiming through defendant 2, or he acquired his title before the lease and his claim in consisistent with the title of the lessor.” 16. The learned Single Judge of Madras High Court in Mariyala Sambayya Versus Narala Bala Subba Reddi and another, A.I.R. 1952 Madras 564 has held that where the plaintiff in the interpleader suit is found to have any interest in the subject-matter of the suit or where he is found to have colluded with one of the claimants, then the right to file an interpleader suit cannot be availed of by him. The learned Single Judge has held as under: “(3). The question now is whether this interpleader suit could be entertained and whether there is sufficient justification for allowing the respondent to file the suit. This suit is obviously filed under S. 88 of the Civil P.C. Mr. Neti Subramaniam the learned counsel for the petitioner has invited my attention to the decision reported in 'HARI KARMARKAR v. J.A.ROBIN'. 4 Rang 465, which is more or less on facts similar to those contained in the present petition. In that decision it has been held that if the plaintiff in the inter- pleader suit was found to have any interest in the subject-matter of the suit or that if he was found to have colluded with one of the claimants, then the right to file an inter-pleader suit could not be availed of by him. On the facts of the present case it is evidence both from the written statement filed by the 1st respondent as also the plaint filed by him in the inter-pleader suit that he has sufficient interest in seeing that the claim of the petitioner is defeated. The contents of the written statement as well as the plaint would point out only to that fact. Besides there is also ample evidence to show that the 1st respondent is in collusion with one of the claimants, namely, the adopted son. In this view I do not thing that there is enough justification for allowing the 1st respondent to file the interpelader suit. In this connection Mr. Subramaniam has also invited my attention to a decision in NATIONAL INSURANCE CO. LTD v. DHIRENDRA NATH', AIR (25) 1938 Cal 287. The principle laid therein is that in order to enable a party to file an inter-pleader suit the party should be in a position to walk out of the suit with a mere claim for costs and shall not be entitled to have any other matter of contest between himself and the claimants. In this case the fact that the 1st respondent is claiming to have paid Rs. 200 already to the original promisee and is also raising contentions which have to be gone into at length to find out whether the transfer is valid, whether the petitioner is a holder in due course and so forth will certainly not bring the inter-pleader suit within the scope of S. 88 of the Civil P.C.. On the other hand, Mr. Kothandaramiah appearing for the respondent has referred to a decision in 'SECRETARY OF STATE V.MIR MUHAMMAD', 1 Mad H C R 360. I do not think the facts of that case apply to the facts in the present case. In my view the requirements of S. 88 are not satisfied in the present case so as to enable the 1st respondent to file the inter-pleader suit. The learned District Munsif, therefore is not right in having allowed the 1st respondent to file the suit. The order of the lower Court is set aside. This revision petition is, therefore, allowed with costs. 17. The learned Single Judge of Punjab and Haryana High Court in Jugal Kishore and others Versus Bhagwan Dass and others, AIR 1990 Pubjab and Haryana 82 has held that according to the provisions of O. 35, R. 5, the tenant cannot sue his landlords for the purposes of compelling them to interplead with any persons other than persons making claim through landlords. The learned Single Judge has held as under: “5. The learned counsel for the petitioner submitted that in view of the provisions of O. 35, R. 5, CP.C., the present suit as such was not maintainable. According to the learned counsel Yeshwant Bhikaji’s case (supra) has not been rightly interpreted by the trial Court. Rather it supports his contention. He further cited Sadasshiv Hirwe V. Trimbak Chitnis, AIR 1957 Madh Bha 171, in support of his contention. O. 35, R. 5, C.P.C., read as under:- “Agents and tenants may not institute inter-pleader suits.-Nothing in this order shall be deemed to enable agents to sue their principles, 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.” According to the said provisions, the tenant could not sue his landlords for the purposes of compelling them to interplead with any persons other than persons making claim through such principals or landlords. Admittedly, in the present case defendants Nos. 4 to 19 are not claiming through the landlords defendants Nos. 1 to 3. They claim themselves to be the owners of the shop in dispute and have denied the rights of defendants Nos. 1 to 3. In these circumstances, the said provisions of O. 35, R. 5, C.P.C., were clearly arrracted and the tenant here could not maintain the suit against the landlords i.e., defendants Nos. 1 to 3 compelling them to interplead with defendants Nos. 4 to 19. In yeshwant Bhikaji’s case (AIR 1940 Bom 414) (supra), it was held that “a tenant is not permitted to deny his lessor’s title at the commencement of the tenancy and, therefore, in order that an inter-pleader suit may lie, the claim of the party other than the landlord must be consistent with the title of the landlord at the commencement of the tenancy in question.” 18. The learned Single Judge of Kerala High Court in M/s. National Insurance Co. Ltd. Versus Antony T. George & others, Current Civil Cases 1990 (1) has held that when there is no dispute or when the dispute is settled or pending settlement or could be decided in a pending litigation, an interpleader suit cannot be filed. Plaintiff is bound to state in the plaint or at least make it clear that he claims no interest otherwise than for charges or costs and that rival claims were raised by the defendants severally and there is no collusion between himself and any of the defendants. A plaintiff who is contesting the claim or pleading that time for payment has not come cannot file such a suit. The learned Single Judge has held as under: “7. As the proviso to S. 88 C.P.C. shows an interpleader suit could be filed only when it is absolutely necessary. When there is no dispute or when the dispute is settled or pending settlement or could be decided in a pending litigation, an inter- pleader suit cannot be filed. Plaintiff is bound to state in the plaint or at least make it clear that he claims no interest otherwise than for charges or costs and that rival claims were raised by the defendants severally and there is no collusion between himself and any of the defendants. A plaintiff who is contesting the claim or pleading that time for payment has not come cannot file such a suit. In this case, one of the contentions of the appellant was that time for payment has not come since defendants 1 to 3 did not forward a loss voucher which is a condition precedent for admitting the claim and making the payment. If that was the stand plaintiff could have awaited garnishee proceedings in execution to raise his contention instead of filing a suit. The fact that he was not a party to the decree which is binding on the defendants who alone are the possible claimants or the further fact that the whole claim is not admitted will not justify an interpleader suit. Plaintiff was not a necessary party to the suit filed by the 4th defendant. After the decree which has admittedly become final he was not justified in assuming that a dispute as to who is the rightful claimant still subsists enabling an interpleader suit.” 19. The learned Single Judge of Punjab and Haryana High Court in Raj Kumari Alias Raj Rani Versus Surjit Singh Alias Bilu and others , Punjab Law Reporter Vol. 121 1999 (1) 161 has held that Order 35, Rule 5 of the Code of Civil Procedure prohibits the tenant to bring a suit against his landlord for the purpose of compelling him to interplead with any person other than the person making claim through such landlord. The learned Single Judge had held as under: “4. After hearing the counsel for the parties and going through the record , I am of the view that there is no merit in the appeals. Order 35, Rule 5 of the Code of Civil Procedure, prohibits the tenant to bring a suit against his landlord for the purpose of compelling him to interplead with any person other than the person making claim through such landlord. In the case before me, after the death of Rajbans Kaur and Bhagwan kaur the tenant started paying rent to M.S. Judge and at no stage Surjit Singh claimed himself to be landlord of the property, qua the plaintiff. In fact, no evidence has been brought on record by the tenant to show that Surjit Singh initiated any proceedings either in regard to ejectment of plaintiff or recovery of rent from the plaintiff. In this situation, interpleader suit by the tenant denying the title