J. R. CHOPRA, J. - (1.) THIS revision petition is directed against the order dated January 6, 1987 of the learned Civil Judge, Jodhpur, whereby he has rejected the application filed by the petitioner Achalulal under O. l, r. 10 C. P. C. for impleading him as a party in the suit.
(2.) A few facts leading to this revision petition briefly stated are : that on 23. 8. 1985, the applicant-petitioner filed an application under O. l, r. loc P. C. in the court of the learned Civil Judge, Jodhpur pleading inter-alia, that the plaintiff-non-petitioner No. 1 filed a suit against the defendant-non-petitioner No. 2 about a house built on plot No. 82 in Sector-A Shastri Nagar, Jodhpur. He has claimed that he is the owner of the house and defendant is the tenant of the suit house. In fact, this house does not exclusively belong to the plaintiff. It is joint property of the plaintiff and the applicant and the plaintiff has been recovering rent of this house from the defendant and the receipt have been issued in the name of plaintiff or in the name of the father of the applicant and the plaintiff. He has, therefore, claimed that decision in this suit will effect the rights of the applicant about the suit property and, therefore, he is a necessary party to the suit and so, he should be impleaded as a party to the suit. A reply to the application was filed by the plaintiff-non-petitioner No. 1 on 26. 4. 1986, in which, he has pleaded that the applicant-petitioner has no right or title to the suit property. It is a simple suit between the landlord and the tenant about the eviction and so, in that suit, the applicant petitioner cannot be impleaded as a party to the suit. It was further pleaded that if the applicant-petitioner feels that he has some right or interest in the suit property, he must file a separate suit. In such suits for arrears of rent and ejectment filed by the landlord, a party cannot be allowed to raise complicated questions whereby the title between two persons is brought into focus about the property. After hearing both the parties, the learned Civil Judge held that originally, the house belonged to Shri Mohanlal Bhati, the father of the plaintiff as also of the applicant. It is allowed that Mohanlal executed a Will about this suit property and in that Will, he gave this property to the plaintiff-non-petitioner No. 1 and on the basis of this Will, the plaintiff-non-petitioner No. 1 Surendra Kumar obtained a Patta of this land from the U. I. T. The defendant-non-petitioner No. 2, who is the tenant of this suit property, also attorned to the plaintiff and paid rent to him in respect of the month of April, 1984 and, therefore, the plaintiff-non-petitioner No. 1 is entitled to maintain this suit and' the dispute whether this house exclusively belonged to plaintiff-non-petitioner No. 1 Surendra Kumar or it is a joint property should not be allowed to be agitated in such a simple suit for rent and ejectment, and, therefore, it has dismissed the application of the applicant-petitioner filed under 0. 1, r. 10 C. P. C. Hence this revision. The revision petition was finally argued at the admission stage after giving a notice to the non-petitioners and hence, it is being finally disposed of at the admission. I have heard Mr. Ram Ratan Nagori, learned counsel for the appellant petitioner and Mr. R. K. Thanvi, learned counsel for plaintiff-non-petitioner No. 1, I have carefully gone through the order under revision as also the record of the case.
(3.) MR. R. R. Nagori, learned counsel appearing for the applicant-petitioner has submitted that it has been, held by their lordships of the Supreme Court in Razia Begum Vs. Anwar Begum (1) that the question of addition of parties under r. 10 of 0. 1 of the Code of Civil Procedure is generally not one of the initial jurisdiction of the court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. Their lordships have further, observed that in a suit relating to property, in order that a person may be added as a, party, he should have a direct interest, as distinguished from a commercial interest in the subject - matter of the litigation. Where the subject -matter, of a, litigation is a, declaration as regards status or a legal character, the rule of present or direct interest may be relaxed, in a suitable case where the court is of the opinion, that by adding, that party,, it would be in a better position effectually, and completely to adjudicate, upon the controversy, MR. Nagori has admitted that the applicant-petitioner has a, direct interest in the property, because the property belonged to his father and now on the basis derivated title, the. plaintiff non-petitioner No. land the applicant-petitioner both have equal share in the property. The Will has not been probated. According to him, if the plaintiff i$ allowed to get possession of the property incase the suit is decreed against the tenant (defendant-non-petitioner No. 2), he will have to file a fresh suit to recover possession and so,. in order to effectively and completely adjudicate upon the controversy, the appllcant-petitioner's presence in the, suit isessential and that will save, him from filing a fresh suit. A similar view has been, taken by this Court in Gaud Shanker Vs Jabbar Singh (2), wherein it has been held that, to avoid the multiplicity of suits and to pass effective decree adjudicating question completely in the suits relating, to the property, a person having direct interest in, the subject matter of litigation should be impleaded as a party. Reliance was also placed on a, decision of this Court in. Paras Ram V. Ekling Singhji (3 ). That was a case, where, K, who was one of the creditors impleaded as a party in the suit has not been impleaded in appeal and, therefore, it was felt that the, appeal is not properly, constituted and. so, the appeal was dismissed. Here,it is not a case of that type and so, this ruling has no application to the facts and circumstances of this case. However, both the parties have placed reliance on a decision of this Court in Brij Mohan. Lal, Bhargava, Vs. Smt. Lila Bai (4) wherein it has been held that it is a settled principled law that a simple suit for recovery of rent between a landlord and a tenant should not ordinarily be converted into a suit for title in respect of the property of which the rent and possession is claimed. In that case, in a suit for ejectment and for recovery of arrears of rent, a third party (previous owner) made an application under O. I. r. 10 C. P. C. for being impleaded as a party defendant contending that the sale said to have been made by him in favour of the plaintiff was benami transaction and was made without consideration and was invalid and void for various reasons including fraud and that he still continued to be the owner and landlord of the premises in dispute and as such, he was a necessary party in that suit. This, contention was repelled by the learned single Judge of this Court and it was held that whether the alleged sale was benami or was without consideration or invalid and void for any other reason, including the fact that such transaction of sale was tainted by fraud, all such questions would necessarily involve long drawn out proceedings and intricate enquiries, in which the defendant tenant was not at all interested. The learned Judge has considered certain authori-ties in which this very fact that whether the plaintiff is landlord of the property or not may be disputed and in that case, the person claiming to be the real land lord may be impleaded as a party but that is not the case here. Here, in the application, that has been filed by Shri Achalulal, he has categorically admitted that he has been collecting rent on behalf of his father and the receipts have issued in the name of his father and the plaintiff Shri Surendra kumar. He nowhere claimed that the receipts have been issued in his name. If the rent is being collected on behalf of his father or for that matter his brother Surendra Kumar, then the suit for arrears of rent is maintainable by plaintiff Surendra kumar. Moreover, the plaintiff-non-petitioner No. 1 has set up the Will not in the suit but in reply to the application filed by applicant-petitioner Achalulal under O. l. r. 10,c. P. C. and he has claimed that the property has. been given to him by his father and onthe basis of that Will,, whether probated or not probated the U. I. T. has granted a Patta of this suit property in His favour. He has also claim-ed that the tenant (defendant-non-petitioner No. 2) has attorned to him and has also-paid the rent to him for the month of April, 1984 in his own name and, therefore, he is entitled to maintain the suit. The applicant-petitioner has claimed that the house belonged to Shri Mohanlal and the Will has not been probated: The Patta has been obtained from the U. l. T. by playing fraud on it. Such com-plicated question relating to title cannot be allowed to be agitated in such a simple suit for arrears of rent and ejectment: This is the view that has been taken by this Court in another decision in Taresh Kumar Vs Raghunandan (5), wherein it has been held that in a suit for arrears of refit and ejectment, the court will be required to determine whether the defendant is liable to pay the arrears of rent as payable to the plaintiff and whether he is liable to - - - - - - allowed to be impleaded is a party, the question about the title of the property would unnecessarily arise in such a simple suit for arrears of rent and ejectment and such a course has not been encouraged by this Court. Mr: R. K. Thanvi, learned counsel for the plaintiff-non-petitioner No. 1 has placed reliance on a decision of this Court in Hussain Vs. Shaft Mohammed (6), which has also been cited by Mr. R. R. Nagori, learned counsel for the applicant-petitioner, wherein it has been held by a learned single Judge of this Court that the plaintiff being generally dominus litus, he cannot be compelled to fight against some other litigant not of his own choice unless such a process required by a positive rule of law. Order I, r 10 (2) is applicable to two classes of cases only. One class is where he ought to have been joined as a plaintiff or a defendant and is not so joined. That is a case of a necessary party. The other class is • where without his presence the questions in the suit cannot be effectually and completely decided. In this case, where the plaintiff has claimed the arrears of rent and ejectment against the defendant, a person who claims title of the property ought not to have been joined and, therefore, he does not come in the category of a necessary party. It is also not a case where the court will not be able to decide without' his presence whether the defendant is the tenant of the plaintiff when he has already attorned to the plaintiff by paying monthly rent for the month of April 1984 to him and therefore, even in absence of Shri Achalulal, the appliciant-petitioner, the matter in controversy can be effectively and completely decided and, therefore, he does not come in any of these categories and, therefore, he is not a necessary to implead him as party even under the second count. ;