DWARKA PRASAD, J. - (1.) THE only question, which has been raised in this revision petition, is as to whether the petitioner is a proper party to the suit for eviction filed by Budhmal and Manak Chand against Radhakishan.
(2.) THE plaintiffs' case is that Radha Kishan was their tenant in respect of the suit shop and eviction of the tenant Radha Kishan is claimed in the suit on several grounds, inter alia that he has sub-let the shop in dispute to the petitioner Sanwar Mal (Sanwar Ram ). THE defendant Radha Kishan filed an application admitting the allegations made in the plaint and has not contested the suit. THE petitioner Sanwarmal filed an application in the trial court stating that he was the tenant of the plaintiffs in respect of the suit shop and that Radhakishan has nothing to do with the tenancy of the said shop and that the petitioner Sanwarmal was in possession of the suit shop as a tenant from the plaintiffs. THE petitioner prayed that he may be impleaded as a party to the suit being a proper party. THE application was dismissed by the learned District Judge, Churu by his order dated August 19, 1982 on the ground that the petitioner did not state in his application that he was a sub-tenant claiming under Radha Kishan, but he claimed an independent right of tenancy and as such he was not a peeper party. In this revision petition, learned counsel for the petitioner urged that the petitioner was a proper party to the suit inasmuch as a collusive decree for eviction is likely to be passed on the admissions made by Radhakishan and that decree would be sought to be executed against the petitioner on the basis that he was a sub tenant, of the suit premises. According to the learned counsel for the petitioner, the petitioner was a necessary party to the suit and he should be heard before a decree for eviction is passed on the ground of sub-letting. On the other hand, learned counsel for the non-petitioners urged that the plaintiffs should not be forced to add the petitioner as a party to the suit against their wishes, more-so as he was a sub-tenant inducted by Radhakishan. Learned counsel for the opposite party placed reliance on the decision of this Court in Kamlesh Kumar vs. Shiv Ratan (l ). It is well settled that a decree for eviction cannot be passed unless the existence of one of the grounds mentioned in Section 13 (1) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 is established by the plaintiff. Sub-letting of the premises or assignment thereof, without the consent of the landlord, may be one of the grounds on which a decree for ejectment can be passed, in accordance with the provisions of section 13 (1) of the Act. After the defendant Radha Kishan has made an admission regarding the allegations made in the plaint, the court will have to give a finding, which may be based on the admission of Radha Kishan that Radha Kishan has sub-let the shop in dispute to Sanwarmal. The petitioner in his application claims that he is a direct tenant from the plaintiffs themselves and he was not a sub-tenant claiming under Radha Kishan, as such the petitioner is very much interested in the decision of the question as to whether Radha Kishan has sub-let the shop to him, which would be the very basis for obtaining a decree for ejectment on the ground of sub-letting If the question of sub-letting by Radha Kishan without the consent of the landlord has to be decided by the court, as a prerequisite for passing a decree for ejectment even against Radha Kishan, then the petitioner Sanwarmal is in my view a proper party to the suit. It is for him to defend his interest and to show that he was not a sub-tenant claiming under Radha Kishan but that he was a direct tenant let in by the plaintiffs themselves. It maybe pointed out that in the present case, the plaintiffs themselves have admitted that Sanwarmal was in possession of the disputed shop and his capacity has been described by the plaintiffs as that of a sub-tenant. The petitioner's stand is that he is in possession of the suit shop but he is interested in contesting the allegations made by the plaintiffs that he was in possession of the suit shop in the capacity of a sub-tenant. The question whether the petitioner is a sub-tenant or not should not, in my opinion, be decided in the aforesaid circumstances in his absence and without affording him an opportunity of leading evidence, particularly when the petitioner's specific case is that he was a direct tenant from the plaintiffs themselves, meaning thereby that he was not a sub-tenant claiming under Radha Kishan. Kamlesh Kumar's case (1) is clearly distinguishable inasmuch as from the facts of that case as narrated in the judgement of this Court, it dose not appear as to whether the landlord had admitted that Kamlesh Kumar was in possession of the suit property in the capacity of a sub - tenant. Moreover, even this much is not clear that sub-tenancy was advanced as a ground for ejectment. A sub-tenant is bound by a decree for ejectment passed against the principal tenant and ordinarily a sub-tenant is more interested in exposing the felicity of the landlord's case, being in actual possession of the demised premises. Therefore, in a large majority of suits for ejectment between the landlord and a tenant, the subtenant is a proper party, more-so if he desires to be added as a party otherwise he would be condemned unheard. But in some of such cases, where the question of sub-tenancy may not arise for consideration the sub tenant may not be required to be added as a party to the suit for eviction filed by the landlord. Supposing a suit is filed only on the ground of non-payment of rent; unless there is a sub-tenant inducted on the premises with the consent of the landlord, the sub-tenant, if any, will be bound by the decree that may be passed against the tenant if the principal tenant is found to have been a defaulter in payment of rent, in accordance with law. It does not appear from the judgment of Kamlesh Kumar's case (1) as to what was the ground on which a decree for ejectment was claimed by the plaintiff in that case and, therefore, in my view, that decision cannot be taken as an authority for laying down a broad proposition that in any action for recovery of possession between the landlord and the tenant, the sub-tenant would not be a proper party to the suit. The question will have to be decided on the facts and circumstances of each case. In Messrs. Importers and Manufacturers Ltd. vs. Pheroze Framroze Taraporewala (2), a suit was filed by the landlord for possession and for arrears of rent against the tenant on the ground that he had illegally sub-let the premises without the consent of the landlord and the sub-tenant was impleaded as a party to the suit. In these circumstances, their lordships of the Supreme Court held that although the sub-tenant was not a necessary party, yet he was a proper party. The following observations of their Lordships of the Supreme Court are relevant: - "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 the 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. " In South Asia Industries Private Ltd. vs. S. Sarup Singh (3) their Lordships of the Supreme Court observed as under- "i am not unmindful of the fact that where an order for recovery of possession of any premises is made under S. 14 against a tenant assigning or sub-letting without the landlord's consent, that order would under S. 25 of the Act be binding on all persons in occupation of the premises except those who have independent title to them. This section does not however say that an order for recovery of possession against an assignee of a lessee cannot be made. It would not, therefore, support an argument that it was not intended that an order for recovery of possession could be made under S. 14 against an assignee or a sub-tenant. On the other hand, it seems to me that to an application under Cl. (b) of the proviso to sub-s. (1) of S. 14 an assignee or sub-tenant, as the case may be, should be a proper party. Under this provision an ejectment order can be made only when the assignment or sub-letting was without the consent of the landlord. If it was with such consent, the assignee or the sub-tenant would be protected by the Act. An assignee or a sub-tenant is, therefore, interested in showing that there was the requisite consent. They should hence be entitled to be made parties to the proceedings. Other wise, if under S. 25 an eviction order obtained against the direct tenant is binding on them, they would be liable to be condemned without a hearing. It is no argument against this view that the direct tenant would protect them, for they cannot be made to depend on him for the protection of their rights. The direct tenant may be negligent or incompetent in his defence; he may even collude with the landlord or he may just not bother. If the assignee or the sub-tenant is thus entitled to be heard to oppose the order for eviction, that would be another reason for saying that an order for eviction could be made against them also; if they could oppose the making of the order, it would be unnatural to say that the order could not be made against them. "
(3.) IT is no doubt true that in South Aisa Industries Case (3), their Lordships of the Supreme Court have not laid down a broad proposition that in all suits between a landlord and his tenant the sub-tenant is a necessary party; but in my humble view, their Lordships of the Supreme Court have definitely laid down that in a landlord's suit for ejectment against a tenant, the assignee or the sub-tenant is a proper party, in as-much as it has been held that an assignee or sub-tenant will have to be heard to oppose an order or decree for eviction obtained against a direct tenant; because otherwise such a person would be condemned without a hearing. Their Lordships made it amply clear in the aforesaid passage that the direct tenant is expected to protect the interest of the sub-tenant is no ground for refusing to make the sub-tenant or assignee a party to the suit, for he cannot be made to depend on the tenant-in chief for the protection of his rights. Supposing the direct tenant agreed to accept the case of the plaintiff and a collusive decree is passed against him. In such a case, the rights of the sub-tenant would be put in jeopardy and, therefore, their Lordships have held in the aforesaid case that a sub-tenant is a proper party though not a necessary party. In Harbans Singh v. E. R. Srinivasan (4), a suit was filed by the landlord against a tenant for ejectment and another person submitted an application for being impleaded as a party defendant to the suit on the ground that he was the real tenant. It was held that such a person was entitled to be impleaded as a defendant in the suit on the ground that it would prevent multiplicity of proceedings and the question arising in the suit between the landlord and the tenant, about the alleged sub-tenancy, could be completely and effectively decided in the presence of all the parties concerned. In that case, the applicant's case was that the plaintiff was trying to fight a mock action against an non-existent tenant in order to obtain a decree for possession of the disputed property, which would be utilised to the detriment of the applicant, who claimed to be in possession. In the present case, the significant fact is that the petitioner is admitted by the plaintiffs to be in possession of the disputed property and the only dispute between the parties, including the petitioner, is about the capacity in which the petitioner is in possession of the suit property. According to the plaintiffs, the petitioner was in possession of the suit property as a sub-tenant unlawfully put into possession by the principal tenant Radhakishan; while according to the petitioner he was not a sub-tenant under Radha Kishan but he was a direct tenant claiming under the plaintiffs. Thus, in order to completely and effectively decide the question which arises on the allegations made in the plaint itself, as to whether the petitioner Sanwarmal is a sub-tenant who has been unlawfully put into possession by the tenant Radha Kishan, the presence of the petitioner Sanwarmal would be proper, more-]so in order to avoid multiplicity of proceedings. The petitioner, in my view, is a proper party, although he may not be a necessary party, and it would, therefore, be proper to make him a party defendant in the suit. ;