IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No.9144 of 2011 Kailash Prasad Agrawal …..……. Defendant No.2/Petitioner Versus Rajendra Prasad Agrawal …………..……… Plaintiff/Respondent ******** For the Appellant : Mr. R.K.P. Sinha, Sr. Advocate For the Respondent : Mr. Kaushal Kumar, Advocate Dated : 28thday of July, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO O R D E R 28.07.2011. Heard the learned counsel, Mr. R.K.P. Sinha on behalf of the petitioner and the learned counsel, Mr. Kaushal Kumar on behalf of the respondent. (2) This writ application has been filed by the defendant No.2-petitioner against the order dated 07.01.2009 passed by Sri G.K. Srivastava, Munsif Ist, Begusarai in Title Suit No.121 of 1980 allowing the application filed by the respondent No.2 to 8 udner Order 1 Rule 10 (2) of the Code of Civil Procedure and adding them as co-plaintiff. It appears that the plaintiff- respondent No.1, Rajendra Prasad Aggrawal filed Eviction Suit under the Bihar Building (Least, Rent and Eviction) - 2 - Control Act, 1982 on the ground of personal necessity and default. The defendant No.1-respondent No.9, Raj Kumar Sahu, took the defence that plaintiff is not the real landlord rather his landlord is Kailash Prasad Agrawal (petitioner). It appears that subsequently, this petitioner was added as defendant No.2. (3) The intervener-respondents filed the aforesaid application for being added as co-plaintiff in the suit on the ground that they have purchased the suit land from the plaintiff on 23.12.1981 and stepped into the shoes of the vendor. The original plaintiff is not taking interest in pursuing the suit for evicting the tenant. (4) The learned Court below found that the plaintiff had sold the suit premises to the interveners. The suit was dismissed for default in the year 1991 and then it was restored in 21.11.2001. (5) The learned counsel, Mr. R.K.P. Sinha appearing on behalf of the petitioner submitted that the learned Court below has no jurisdiction to add the pendente lite purchasers as party in the suit and further that since last 125 years, the purchasers did not apply for being added as party. The learned counsel relied upon decisions :- (i) 1996 (5) Supreme Court cases 539 Sarbindar Singh Vs. Dalip Singh. (ii) A.I.R. 2004 (SC) 173 B.B. Jubeda Khatoon Vs. Nabi Hasan - 3 - (iii) A.I.R. 2004 (SC) 4390 Vijaylata Sharma Vs. Rajpal and submitted that the transfer in favor of the interveners is hit by Section 52 of the Transfer of Property Act and, therefore, they were not at all necessary or proper party. The learned counsel further submitted that as a matter of right, the interveners cannot ask the Court for their impediment. In view of the settled principles of law, the learned Court below acted beyond its jurisdiction and allowed the application and directed the interveners to be added as co-plaintiff. The learned counsel further submitted that since it is without jurisdiction, the impugned order is liable to be set aside. (6) On the other hand, the learned counsel appearing on behalf of the respondent submitted that the tenant has not filed this writ application. The tenant is not aggrieved of the order. This defendant No.2- petitioenr is claiming himself to be the real owner of the suit premises and is disputing the title of the landlord and subsequent transferee. According to the learned counsel at the instance of a third party, i.e., defendant No.2, the title of the landlord cannot be investigated in an eviction suit, particularly when the defendant is not objecting to the addition of the intervener as co-plaintiff and the likewise, the original landlord is also not objecting for their addition as co-plaintiff. The learned Court below has considered the fact that the plaintiff was not pursuing - 4 - the suit diligently and even allowed the suit to be dismissed for default because he has already sold the property to the present interveners. In view of the above facts, the interveners were compelled to file the application for being added as party. Considering the circumstances, the learned Court below has rightly exercised a discretionary jurisdiction vested in it by law; therefore, it cannot be interfered with in writ jurisdiction. (7) Admittedly, eviction suit was filed by the original plaintiff in the year 1980. In 1981, he sold the property to the present interveners. The eviction suit is being pursued for long period by the plaintiff and even allowed to be dismissed in 1992 which clearly indicate that the plaintiff was not pursuing the suit property. The interveners admittedly purchased the suit property from the original plaintiff. According to the learned counsel for the petitioner he is the landlord of the tenant. The defence of the tenant can be gone into in the final decision of the suit but at this stage, the application for being added as party cannot be rejected outrightly. So far applicability of Section 52 of the T.P. Act is concerned, the same will not come into play in the present case because this is a suit for eviction. Here, the only question to be decided is whether there is relationship of landlord and tenant between the plaintiff and the defendant No.1. In this suit, the complicated question of title between the - 5 - plaintiff and the defendant No.2 cannot be gone into. (8) The first two decisions relied upon by the learned counsel for the petitioner relates to regular title suit. In the case of A.I.R. 2004 (Supreme Court) 4390, the intervener was praying for being added as party on the basis of unprobated Will which was rejected. Here the registered sale deed is admitted. The plaintiff is admitting the fact that he executed the sale deed. In such circumstances, the presence of these interveners is essential for completely and effectively adjudicating the dispute and controversy between the plaintiff and the defendant No.1-tenant. At the instance of defendant No.2, the title of the plaintiff cannot be investigated in this suit. Moreover the learned Court below has exercised a discretionary jurisdiction. Considering the delay, he has awarded cost of Rs.1,000/- also. It cannot be said that the learned Court below has no jurisdiction at all. (9) In 2003 (6) Supreme Court Cases 675 Surya Dev Rai Vs. Ram Chander Rai, the Hon’ble Supreme Court considering the scope of Article 226 and 227 in relation to the amendment in Section 115 (1) proviso has given 9 proposition regarding the exercise of power in writ jurisdiction by the Supreme Court. Out of them, proposition No.4 and 7 are quoted hereinbelow : “(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate Court has - 6 - assumed a jurisdiction which it does nto have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and / or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. “ (10) This view of the Hon’ble Supreme Court has again been reiterated recently in 2011 (3) P.L.J.R. 46 Supreme Court, Kokkanda B. Poondacha & Ors. Vs. K.D. Ganapathi & Anr. (11) In view of the above settled principle of law in the present case, it cannot be said that the learned Court below assumed the jurisdiction which it does not have or that he acted in utter disregard of law or the rules of procedure or assumed jurisdiction which he does not possess. As stated above, the petitioner is claiming independent title to the property which cannot be gone into in this suit and he cannot be said to be aggrieved - 7 - person by the impugned order, particularly when the tenant is not objecting. Whether there is relationship of landlord and tenant or that the interveners will be able to obtain decree for eviction on the ground of personal necessity or default is a different matter which can only be gone into after trial. The merit cannot be decided at this stage. I, therefore, find that by the impugned order, neither gross failure of justice nor grave injustice has occasioned. Therefore, this is not a fit case where this Court should exercise supervisory jurisdiction under Article 227 of the Constitution of India. (12) Thus this writ application is dismissed. No order as to costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 28thday of July, 2011 Sanjeev/.A.F.R.