SHISHIR KUMAR,J. - (1.) HEARD learned counsel for petitioner and learned counsel for respondents.
(2.) THIS writ petition has been filed against the orders passed by authorities below by which application filed by petitioner for impleadment in a suit filed by respondent-landlord against respondent No.2 who is brother of petitioner has been rejected and revision filed by petitioner has also been rejected. It appears that father of petitioner was tenant and after his death tenancy devolve upon petitioner and respondent No.2. SCC suit was filed impleading brother-respondent No.2 before the Judge, Small Causes Court for arrears of rent and ejectment. When petitioner came to know, he made an application under Order 1 Rule 10 of Civil Procedure Code that he is a necessary party to be impleaded in the suit and it has also been pleaded that respondent No.2 has been prevailed upon respondent No.1, therefore, he will not contest the suit properly but prescribed Authority has rejected the said application that petitioner being a joint tenant it is not necessary to be impleaded as a party. Revision filed by petitioner has also been rejected.
(3.) LEARNED counsel for petitioner has submitted that as brother of petitioner has colluded with landlord, therefore, correct fact will not come, in that circumstances petitioner is a necessary party to be impleaded. He has placed reliance upon a judgment of the Apex Court reported in AIR 1953 Supreme Court, 73 M/s Importers and Manufacturers Ltd. Vs. Pheroze Framroze Taraporewala and others and reliance has been placed upon para 3 of the said judgment. The same is being quoted below:- "3. The respondents (the plaintiffs) do not contend that the appellant (the second defendant) is a "tenant" as defined in S. 5(11) of the Act. The appellant, on the other hand, does not and, indeed, cannot deny that, as between the plaintiffs and the first defendant, the suit is one between a landlord and a tenant and as such the Small Causes Court is, under S. 28 of the Act, the only Court competent to entertain the suit. Section 28 confers jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of the premises but also "to deal with any claim or question arising out of this Act or any of its provisions." There is no reason to hold that "any claim or question" must necessarily be one between the landlord and the tenant. In any case, once there is a suit between a landlord and a tenant relating to the recovery of rent or possession of the premises the Small Causes Court acquires the jurisdiction not only to entertain that suit but also "to deal with any claim or question arising out of the Act or any of its provisions" which may properly be raised in such a suit. The plaintiffs in this suit claimed that the purported subletting by the first defendant to the second defendant was unlawful both because it was a breach of the terms of the tenancy and also because as the statutory tenant after the determination of the contractual tenancy the first defendant was not entitled to create a sub-tenancy and they questioned the validity of the second defendant's claim to any protection under the Act. The claim or question as to the respective rights of the plaintiffs and the second defendant thus raised in the plaint certainly arises out of the Act and the language of S. 28 appears to be wide enough to cover the same. Apart from that Section, under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. The non-joinder of such a person does not render the decree any the less binding on him. It is in this sense, therefore, that he is not a necessary party to an ejectment suit against the tenant. It is, however, recognised that such a person is, nevertheless, a proper party to the suit in order that the question whether the lease has been properly determined and the landlord plaintiff is entitled to recover possession of the premises may be decided in his presence so that he may have the opportunity to see that there is no collusion between the landlord and the tenant under or through whom he claims and to seek protection under the Act, if he is entitled to any, Such a person may be joined as a party to the suit from the beginning of the suit or at any later stage of the suit if the Court thinks fit to do so. The joinder of such a proper party cannot alter the character of the suit and does not make the suit any the less a suit between the landlord and the tenant or take it out of S. 28 of the Act. To hold otherwise will be to encourage multiplicity of suits which will result in no end of inconvenience and confusion. In our view the decision and the reasoning of Chagla, C. J., are substantially correct and this appeal must fail. We, therefore, dismiss the appeal with costs." ;