Mr.Chandrakant Gangaram Varadkar v. Mrs Mildred Mendonca

Mr.Mohammed Ismail Raj Mohammed s/o Late Raj Mohammed Abdul Qadar, adult, residing at: Malari Chetti Chawl Room No.557, 6/10, Hariyali Village, Vikhroli (E) 2 Mumbai 400 083 3) Mr. Ayub Gani, s/o Late Mohammed Gani Raj, adult, residing at: room No.A-19, Kanti Welfare Sangh Nagar, Opp. Saibaba Mandir, Mumbai 400 093 .. Respondents Mr. Kunal Bhange, for the petitioners. Mr. V.S. Pandey i/b Shri E.K. Sasidharan, adv for respondent Nos 2 & 3. CORAM: A.S. OKA, J. DATED:25 th September, 2009. JUDGMENT

Submissions of the learned counsel for the parties were heard on the earlier date and today the petition is kept for dictation of Judgment.

2. The challenge in this petition under Article 227 of the Constitution of India is to the order dated 15th September, 2006, passed by the Court of Small Causes at Bombay. The said order has been passed on application made by the second and third respondents. The second and third respondents were ordered to be impleaded as party defendants to the suit filed by the petitioners. 3

The plaintiffs have filed suit against first respondent for eviction on various grounds set out in the plaint. Suit has been filed for eviction against first respondent-tenant under section 15 (2) of the Maharashtra Rent Control Act, 1999 (herein referred to as “said Act of l999”). According to petitioners, the first respondent is their tenant. An application was made by second and third respondents in the said suit purporting to be an application under Rule 10 (2) of Order I of the Code of Civil Procedure,

1908. The contention which is raised in the application is that the petitioners are not owners of the suit property and they are not the landlords of the suit property. It is contended that the second and third respondents are the owners and landlords in respect of the suit property and first respondent is their tenant. In the application it is contended that the petitioners have falsely contended on the basis of fabricated documents that they have acquired ownership rights in respect of the property from one Padmavati Chimanlal Shah. Thus, in substance the contention of the second and third respondents is that they are the owners and landlords of the suit premises. Reliance is placed on an interpleader suit filed by some of the tenants in the suit property. The learned Trial Judge while 4 passing the impugned order has observed that without impleading second and third respondents the suit cannot be effectively decided. The learned Judge held that the rights of the second and third respondents will be affected.

The learned counsel for the petitioners submitted that the impugned order has been passed without adverting to the limited scope of the suit under the said Act of 1999 and in such suit, the second and third respondents are neither necessary nor proper parties. Learned counsel for second and third respondents submitted that second and third respondents will be affected by the decree which may be passed in the eviction suit as the said respondents are claiming to be the owners and landlords in respect of the suit property.

I have carefully considered the submissions . Section 33 of the said Act of 1999 deals with the suits between a landlord and a tenant. The exclusive jurisdiction to decide such suits has been conferred on the Courts specified in the said section. Section 35 of the said Act of 1999 reads thus:

35. Nothing contained in sections 33 and 34 shaoll be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined from 5 suing in a competent court to establish, his title to such premises

In view of section 35 of the said Act, 1999, even assuming that an issue of title is decided in such a suit, that cannot prevent the second and third respondents from establishing their title by filing a suit in the Court of competent jurisdiction.

The only issue to be decided in the suit filed by the petitioner is whether they are the landlords and first respondent is their tenant and if the answer to the said issue is in favour of the petitioners, whether the ground for eviction is made out is the other question which needs to be decided. The dispute raised by the second and third respondent cannot be decided in a suit filed under section 33 of the said Act. Considering the limited scope of a suit covered by section 33 of the said Act, 1999 and considering section 35 thereof, it is obvious that second and third respondents are neither necessary nor proper parties to the suit for eviction. The impugned order is patently illegal and the same deserve to be quashed and set aside. It is, however, made clear that no adjudication has been made on the rights claimed by the second and third respondents.

The petition is allowed in terms of prayer clause 6 (a).

(A.S. OKA, J)