- (1.) THIS petition seeks the quashing of the order dated 2nd December, 2010 passed by the Court of Small Causes by which the application filed by the petitioner under Order 1 Rule 10(2) of the Code of Civil Procedure (hereinafter referred to as the 'CPC') for impleadment as a defendant in SCC Suit No.5 of 2005, was rejected. The petitioner has also sought the quashing of the judgment and order dated 8th December, 2011 by which the Revision filed by the petitioner for setting aside the aforesaid order was dismissed. It transpires that SCC Suit No.5 of 2005 was instituted by the plaintiffs Ram Kumar, Naresh and Bela Devi against Dr. Rajendra Kumar Sharma for ejectment and for recovery of arrears of rent. It was alleged that the defendant was the tenant of the shop on a monthly rent of Rs.150/- and that the tenancy of the defendant was terminated on the expiry of the period mentioned in the notice sent under Section 106 of the Transfer of Property Act. It is in this SCC Suit that the petitioner had filed an application under Order VII Rule 10(2), CPC for impleadment as a defendant with the allegation that the applicant was the owner of the property.
(2.) IT transpires that the defendant Dr. Rajendra Kumar Sharma had earlier also filed application 12-C for impleadment of the petitioner as a defendant in the SCC Suit but the said application was rejected by the Court of Small Causes by the order dated 17th September, 2007 and the Revision filed by the defendant for setting aside the aforesaid order was also dismissed by the order dated 30th November, 2007. IT is after the dismissal of the said Revision that the petitioner filed an application under Order 1 Rule 10(2), CPC on 5th February, 2008 for impleadment and this application was rejected by the order dated 2nd December, 2010. The Revision filed for setting aside the aforesaid order was also dismissed by the judgment and order dated 8th December, 2011. IT is stated that earlier, the petitioner had filed Original Suit No.210 of 2001 (Smt. Krishan Vs. Gyan Chand & Ors.) in which Ram Kumar and Naresh who are plaintiff nos. 1 and 2 in SCC Suit No.5 of 2005 were arrayed as defendant nos. 3 and 4 and in Original Suit No.210 of 2001, the Trial Court granted temporary injunction on 10th August, 2001 directing the parties to maintain status quo which injunction is still continuing. The application was filed by the petitioner under Order 1 Rule 10(2), CPC for the reason that the plaintiffs of SCC Suit No.5 of 2005 are not the owners of the property and the petitioner is the owner of the property. The Courts below have rejected the application filed under Order 1 Rule 10(2), CPC for impleadment of the petitioner for the reason that the ownership of the property is not required to be decided in the SCC Suit and all that has been seen is that whether the relationship of the landlord and tenant is existed between the parties. In this connection, reliance has been placed on the decision of this Court in Ghulam Mustafa @ Munshi Nanhey Vs. Malik Jamil Ahmad, Advocate & Anr. 2009 (1) ARC 166. It is the submission of learned counsel for the petitioner that the impleadment of the petitioner was necessary in order to avoid multiplicity of the proceedings, particularly when the petitioner had filed Original Suit No.210 of 2001 for injunction in which the plaintiffs of SCC Suit No.5 of 2005 were defendants in Original Suit No.210 of 2001. In support of this contention, he has placed reliance on the decision of this Court in Rakesh Kumar Vs. Smt. Madhu Gupta 2006 (2) AWC 1814. It is also his submission that the decision of this Court in Ghulam Mustafa (supra) is not applicable to the facts of the present case. I have considered the submissions advanced by the learned counsel for the petitioner. What needs to be noticed in this case is that the defendant-Dr. Rajendra Kumar Sharma had also earlier moved an application under Order 1 Rule 10(2), CPC for impleadment of the petitioner as a defendant in SCC Suit No.5 of 2005 but this application was rejected by the Court of Small Causes on 17th September, 2007 and the Revision filed by the defendant for setting aside the aforesaid order was also dismissed on 30th November, 2007. Soon thereafter, the petitioner moved an application under Order 1 Rule 10(2), CPC on 5th February, 2008 for impleadment as a defendant in SCC Suit No.5 of 2010. The petitioner claims to be the owner of the property and it is his contention that the plaintiffs of SCC Suit No.5 of 2005 are not the owners. The Courts below have observed that the question of title is not required to be seen in the summary proceedings before the Court of Small Causes as only the relationship of the landlord and tenant is required to be examined and in case the petitioner claims title, the appropriate remedy is to seek reliefs in the competent Court. This Court in Ghulam Mustafa (supra), observed as follows:- "3. In the present case, undisputed position is that JSCC Suit No.43 of 2000 had been filed against defendant-respondent No.1 for recovery of arrears of rent and ejectment. In the said suit, defendant-respondent No. 1 filed written statement, denying landlord-tenant relationship. The case in hand has to be decided on the basis of the facts disclosed in the plaint. Merely because Shakil Ahmad claims that he is owner of the property and he has filed suit for declaration of his rights, then ipso facto, it is not necessary to implead him as party in JSCC suit, which has to be decided on its own merit. Revisional Court has clearly erred in law in directing impleadment of Shakil Ahmad in JSCC suit. JSCC suit has to be decided on its own merit as to whether there existed any landlord-tenant relationship inter se parties. In case petitioner fails to substantiate the said fact that he is not landlord, his suit would fail. Revision has been wrongly allowed."
(3.) EVEN otherwise, finding on the question of title to immovable property rendered by a Court of Small Causes will not operate as res judicata in a regular Civil Suit as has been held by the Supreme Court in Rameshwar Dayal Vs. Banda (dead) through his L.Rs. & Anr. 1993 (1) ARC 249 (SC). The relevant observations are :- "15. We are, therefore, more than satisfied that the bar of res judicata is not applicable to the determination of the issue with regard to the title to the property in the present suit. It is for these reasons that we do not think it necessary to discuss in detail the decisions cited on both sides. However, we may refer to a decision of this Court Gangabai w/o Rambilas Gilda v. Chhabubai who Pukharajji Gandhi [1982] 1 SCR 1176, which has a direct bearing on the question as to when a finding on the question of title to immovable property rendered by a Small Causes Court would operate as res judicata. After discussing various decisions on the point, this Court has held there as follows : "when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. A question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised." In Rakesh Kumar (supra), question of title was not in issue and what was urged was that the applicant was a tenant and the decree passed by the Court will also bind the tenant. This is not in issue in the present case. It also needs to be noticed that Dr. Rajendra Kumar Sharma, defendant of SCC Suit No.5 of 2005, has not been impleaded as a respondent. The Courts below, therefore, committed no illegality in rejecting the application filed by the petitioner under Order 1 Rule 10(2), CPC. The writ petition is, accordingly, dismissed.;