Ruma
Chakraborty Vs. Sudha Rani Banerjee & Anr [2005] Insc 531 (4 October 2005)
Dr. AR. Lakshmanan & Altamas Kabir Dr. AR. Lakshmanan, J.
The appellant, who is an unsuccessful intervenor in both the courts below,
is the divorced wife of the recorded sole tenant (second respondent herein) who
is also the sole defendant in the suit filed by the first respondent herein Sudha
Rani Banerjee.
The instant appeal is against the judgment and order dated 26.09.2000 passed
by the High Court of Calcutta in C.O. No. 582 of 2000 rejecting the appellant's
application for being added as a party defendant under Order 1 Rule 10 (2) of
the C.P.C. The High Court concurred with the judgment and order dated
02.02.2000 passed by the IIIrd Civil Judge, Alipore. The High Court rejected
the plea of the appellant that she is directly interested in the tenanted suit
premises by way of her entitlement towards maintenance which includes residence
as per the Hindu
Adoptions and
Maintenance Act, 1956.
The facts of the case, in brief, are as follows:- As already stated the
action arises out of a suit for ejectment filed on 28.03.1992 on the ground of
default, subletting without the prior written consent of the contesting first
respondent herein (plaintiff landlady). Her case, very briefly, is that after
dissolution of the marriage, the appellant is no longer a part of the proforma
respondent's family having the status of a rank outsider/stranger and she was
in illegal occupation of the suit premises in contravention of the statutory
provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred
to as 'the Act'). The proforma respondent/husband has admittedly effaced
himself from the suit premises long prior to the institution of the suit
retaining any control of suit premises. It is the case of the contesting
respondent that the appellant is in illegal occupation without the prior written
consent of the landlady and, therefore, has attracted the provisions of Section
13 (1)(a) of the Act and has become liable for eviction.
The sole defence taken in the suit is that the son and daughter are entitled
to the tenancy right and virtually can step into the shoes of the recorded
tenant who is still alive and contesting the suit who is long back walked out
of the suit premises parting with exclusive legal possession to the appellant.
The appellant filed application under Order 1 Rule 10 (2) C.P.C. for being
impleaded as a party defendant before the Civil Judge, Alipore on 17.12.1999
almost 8 years after the institution of the suit. The Civil Judge dismissed the
appellant's application on 02.02.2000. The appellant, thereafter, moved the High
Court in civil revisional jurisdiction and the High Court, by its judgment and
order dated 26.09.2000, rejected the appellant's application concurring with
the finding of the courts below and finding no infirmity therein. Being
aggrieved, the appellant has preferred the above appeal in this Court.
We heard Ms. Kamini Jaiswal, learned counsel for the appellant and Mr. Rana
Mukherjee, learned counsel for the respondents.
Learned counsel for the respective parties took us through the pleadings,
annexures and the orders passed by the courts below and other relevant records.
Ms. Kamini Jaiswal, learned counsel for the appellant, made the following
submissions:- 1) that the appellant being the divorced wife continues to enjoy
the status akin to that of licensee under her husband in respect of tenancy of
her husband pursuant to the provisions of Sections 3 and 18 of the Hindu Adoptions and
Maintenance Act, 1956;
2) that by precluding the appellant from contesting the suit, the suit would
be decreed ex parte to the detriment of the appellant and her minor children
who even after the said decree of divorce continue to have a right of residence
in the suit premises and cannot be dispossessed except in accordance with law;
3) that the High Court has failed to appreciate that even after the passing
of a decree of divorce even though the marital status of the husband and wife is
brought to an end, the divorced wife still has a right of maintenance which
right includes right of residence. Consequently, the appellant had a right of
her residence vis-`-vis her husband and consequently her stay in the rented
accommodation of her husband could not be treated as illegal.
Ms. Kamini Jaiswal, learned counsel for the appellant, invited our attention
to the documents filed and, in particular, the notice dated 18.12.1989 which
was issued after the decree of divorce by the landlady and also took us through
the averments made in the plaint and in the written statement. In support of
her contention, she cited the following decisions:-
1. Hochtief Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa and Ors.,
[1964] 7 SCR 596
2. Khetrabasi Biswal vs. Ajaya Kumar Baral and Others, (2004) 1 SCC 317
3. Dattatreya and Others vs. Mahaveer and Others, (2004) 10 SCC 665
4. Hutchinson vs. Hutchinson, 1947 (2) All ER 792
5. Middleton vs. Baldock, 1950 (1) All ER 708 822
7. Brown vs. Draper, 1944 (1) All ER 246 Mr. Rana Mukherjee, learned counsel
for the respondents, made the following submissions by way of reply:- 1) the
view taken by the High Court is highly justified in the facts and circumstances
of the case and does not deserve any interference by this Court;
2) That Order 1 Rule 10(2) of the C.P.C. envisages addition of defendants
only in two specified cases:
a) parties who ought to have been joined as necessary parties;
b) whose presence is necessary for complete and effective adjudication of
all the questions involved in the suit as proper parties;
3) That the Court does not have the jurisdiction or the power to add parties
who do not fall under either of these two categories.
4) Who are necessary parties have been made clear by the Act itself. Only
notifying sub-tenants are to be made parties under Section 13(2) of the Act.
Only when the tenant obtains the prior written consent of the landlord under
Section 14 of the Act and both the tenant and the sub- tenant have notified
under Section 16(1) that the sub-tenancy may be said to be perfected and the
subtenant a notifying sub-tenant. Admittedly this is not the case of the
appellant.
Therefore, he submitted that the appellant cannot be impleaded as a
necessary party.
5) So far as proper party is concerned, he submitted that the law is firmly
established that the intervenor has to show a direct legal interest as opposed
to commercial or indirect interest in the subject matter of litigation
especially in a suit relating to immoveable property. The intervenor has to
show that in her absence some order is to be passed which will affect her legal
right. It was submitted that the appellant not being a party to the contractual
tenancy is not able to claim any right, title or interest through her divorced
husband and that she has totally failed to demonstrate any legal interest which
would entitle her to be impleaded as a proper party also.
6) The appellant being neither a necessary nor a proper party, there is no
machinery available at law to implead the appellant as party defendant.
In support of his contention, he relied on the following decisions:-
1. Dr. H.S. Rikhy and Others vs. The New Delhi Municipal Committee, [1962] 3
SCR 604
2. Razia Begum vs. Sahebzadi Anwar Begum and Others, AIR 1958 SC 886
3. Kumar Jagdish Chandra Sinha and Others vs. Eileen K. Patricia D'Rozarie
(Mrs) (1995) 1 SCC 164
4. B.P. Achala Anand vs. S. Appi Reddy and Another, (2005) 3 SCC 313
5. Bibi Zubaida Khatoon vs. Nabi Hassan Saheb and Another, (2004) 1 SCC 191
6. India Umbrella Manufacturing Co. and Others vs. Bhagabandei Agarwalla and
Ors. (2004) 3 SCC 178
7. Vijay Lata Sharma vs. Raj Pal and Another, (2004) 6 SCC 762
8. Balvant N. Viswamitra and Others vs. Yadav Sadashiv Mule and Others,
(2004) 8 SCC 706.
9. Dr. A.K. Roy vs. J.C. Roy Choudhury and Another, AIR 1982 Calcutta 8 We
have carefully gone through the pleadings and other records and also the
judgments relied on by both the parties including the provisions of law under
the West Bengal Premises Tenancy Act, 1956.
Section 2(d) of the Act defines 'landlord' as follows:
"'landlord' includes any person who, for the time being, is entitled to
receive or but for a special contract, would be entitled to receive the rent of
any premises, whether or not on his own account." Section 2(h) of the Act
defines 'tenant' as follows:
"'tenant' means any person by whom or on whose account or behalf, the
rent of any premises is , or but for a special contract would be, payable and
includes any person continuing in possession after the termination of his
tenancy or in the event of such person's death, such of his heirs as were
ordinarily residing with him at the time of his death but shall not include any
person against whom any decree or order for eviction has been made by a Court
of competent jurisdiction." The only question for consideration in this
appeal is whether the appellant has a right to be impleaded as party defendant.
As per the appellant's own averment, the proforma respondent has divested
himself of physical possession. While dissolving marriage under Section 13-B of
the Hindu
Marriage Act, 1955, the matrimonial court with the consent of the parties
ordered the proforma respondent to pay a sum of Rs.200/- p.m. for maintenance
of the minors only. The appellant, in our opinion, by such consent order has
expressly waived her right to maintenance.
Section 3(b) of the Hindu Adoptions
and Maintenance Act, 1956 reads thus:
""maintenance" includes- (i) in all cases, provision for
food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and
incident to her marriage;" Section 18 of the Hindu Adoptions
and Maintenance Act, 1956 reads as follows:- "18. Maintenance of
wife.- (1) Subject to the provisions of this section, a Hindu wife, whether
married before or after the commencement of this Act, shall be entitled to be
maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband
without forfeiting her claim to maintenance,- (a) if he is guilty of desertion,
that is to say, of abandoning her without reasonable cause and without her
consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separartely.
(3) A Hindu wife shall not be entitled to separate residence and maintenance
from her husband if she is unchaste or ceases to be a Hindu by conversion to
another religion." Section 23 of the Hindu Adoptions
and Maintenance Act, 1956 reads as follows:- "Amount of maintenance.-
(1) It shall be in the discretion of the Court to determine whether any, and if
so what, maintenance shall be awarded under the provisions of this Act, and in
doing so, the Court shall have due regard to the considerations set out in sub-section
(2) or sub-section (3), as the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a
wife, children or aged or infirm parents under this Act, regard shall be had
to- (a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified
in doing so;
(d) the value of the claimant's property and any income derived from such
property, or from the claimant's own earnings or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a
dependant under this Act, regard shall be had to- (a) the net value of the
estate of the deceased after providing for the payment of his debts;
(b) the provision, if any, made under a will of the deceased in respect of
the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from
such property, or from his or her earnings or from any other source;
(g) the number of dependants entitled to maintenance under this Act."
Section 25 of the Hindu Marriage
Act, 1955 reads as follows:- "25. Permanent alimony and
maintenance.-(1) Any Court exercising jurisdiction under this Act may, at the
time of passing any decree or at any time subsequent thereto, on application
made to it for the purpose by either the wife or the husband, as the case may
be, order that the respondent shall pay to the applicant for her or his
maintenance and support such gross sum or such monthly or periodical sum for a
term not exceeding the life of the applicant as, having regard to the
respondent's own income and other property, if any, the income and other
property of the applicant, the conduct of the parties and other circumstances
of the case, it may seem to the Court to be just, and any such payment may be
secured, if necessary, by a charge on the immoveable property of the
respondent.
(2) If the Court is satisfied that there is a change in the circumstances of
either party at any time after it has made an order under sub-section (1), it
may, at the instance of either party, vary, modify or rescind any such order in
such manner as the Court may deem just.
(3) If the Court is satisfied that the party in whose favour an order has
been made under this section has remarried or, if such party is the wife, that
she has not remained chaste, or, if such party is the husband, that he has had
sexual intercourse with any woman outside wedlock, it may at the instance of
the other party vary, modify or rescind any such order in such manner as the
Court may deem just." A perusal of Section 3(b) of the Hindu Adoptions
and Maintenance Act, 1956 would clearly show that the intention of the
legislature by including food, clothing, residence etc. was to provide a real
maintenance and not a bare or starving maintenance. The intention of the
legislature is further indicative from the words "also the reasonable
expenses of" appearing in clause (ii) of Section 3(b), clearly meaning
thereby that an unmarried daughter besides the expenses of food, clothing,
residence etc. is also entitled to the expenses of and incident to her
marriage. The intention of the legislature becomes absolutely clear and lucid
from the heading and contents of Section 23 of the Hindu Adoptions
and Maintenance Act, 1956 which speaks of amount of maintenance. Therefore,
it can safely be said that what is implicit under Section 3 is made explicit in
Section 23. In the instant case, while dissolving the marriage under Section
13(b) of the Hindu
Marriage Act, 1955, the court ordered maintenance for minors only with
mutual consent.
According to Ms. Kamini Jaiswal, learned counsel for the appellant,
maintenance includes residence and, therefore, the appellant is entitled to
stay on in the suit premises as a licensee under her husband. The fact remains
otherwise. The husband parted with legal possession and not retaining any
control thereof whatsoever without complying with the statutory provisions of
the Act which attract the provisions of Section 13(1)(a) of the Act. Section
13(1)(a) of the Act is attracted where the tenant without the prior written
consent of the landlord transfers, assigns or sublets in whole or in part of
the suit premises. The contesting respondents case in the suit in para 4 reads as
follows:- "The defendant left the suit premises by inducting some
strangers outsiders sometime in the month of November, 1989. It may be
mentioned that the defendant took the tenancy for residential purposes and in
fact was occupying the same with the members of his family that is to say his
wife and children. All of a sudden without the consent of the plaintiff the
defendant inducted some strangers outsiders in the suit premises in
contravention of the terms of tenancy and allowed the said stranger outsiders
to occupy a portion of the suit premises along with the members of his family
and the defendant himself left the same allowing the said stranger outsiders to
continue in occupation of the same illegally and without any authority
whatsoever." The husband of the appellant filed written statement. Para 7
of the written statement reads as follows:- "That with regard to the
contention made in paragraph 4 of the plaint, it is emphatically denied that
any strangers and/or outsiders were ever inducted in the suit premises by the
defendant at any time or at all. As admitted by the plaintiff the defendant
took tenancy of the suit premises for the purpose of residing there with his
family. It is totally false to say as stated by the plaintiff that any stranger
and/or outsider was ever allowed to occupy a portion of the suit premises. The
defendant for his own business and professional activities has to live outside
the suit premises keeping the members of his family viz. his son and daughter
in the suit premises in the care and custody of the mother of the children, who
has since been divorced by a decree by mutual consent. The said divorced wife
i.e. the mother of the children has been staying in the suit premises only as
the custodian of the said minor son and daughter of this defendant. The
defendant as the father of those minor children did never sever his connection
with those children. As such the defendant had no obligation to handover the
possession of the suit premises to the plaintiff, particularly when his dearest
and nearest ones i.e. the children of his own both having the right and claim
of any property including this tenancy right unless divested by the defendant
or under any law in force. The defendant has already obtained a decree of
divorce on mutual consent from a competent court of law. Under the said decree,
the children born out of the wedlock were handed over to the custody of the
wife and the defendant was directed to pay a sum of Rs.200/- every month to the
wife for the maintenance of these minor children. The wife, by virtue of the
said divorce decree may not be the member of the defendant's family, but the
children cannot lose their right to remain in occupation of the suit premises
as the members of the family of this defendant. This defendant, it is
reiterated even at the cost of reputation never allowed his ex-wife qua ex-wife
to occupy the suit premises. She is therein the suit premises only as the
custodian of the minor children of the defendant, the monthly rents payable are
being paid on account and/or behalf of the defendant. In no stretch of
imagination the lady can be said to be in occupation of the suit premises
instead of or in place of the defendant. She is there only as the custodian of
the minor children of the defendant who have every right to continue in
possession of the suit premises as members of the family of the defendant. It
is once again emphatically denied that the defendant did ever or at all induct
any stranger/outsider in the suit premises or in any part thereof." It is
thus seen from the above averment in the written statement that the husband has
never allowed his wife to occupy the suit premises and that she is in
possession of the suit premises only as a custodian of the minor children of
the defendant and that the monthly rents payable are being paid on account and
on behalf of the defendant. The husband also entered appearance in the suit and
is contesting the suit by filing a written statement and, therefore, the
appellant has no locus standi to be impleaded in the suit either as a necessary
or a proper party in whose presence the suit ought to be or should be heard.
The trial Judge also in his order arrived at the following conclusion:- a)
that the mere payment of money cannot create a jural relationship of landlord
and tenant;
b) the appellant is neither a necessary nor a proper party which is in
conformity with the provisions of the West Bengal Premises Tenancy Act, 1956
and the well settled principles of law governing addition of proper parties;
c) that the appellant could not continue as a joint tenant after dissolution
of marriage;
d) since the original tenant was alive and contesting the suit, the question
of representing the interest of the minor son could not arise.
On these findings, the trial Judge dismissed the appellant's application for
being impleaded as a party defendant.
The High Court of Calcutta, vide its judgment which is under challenge,
concurred with the findings of the trial Court and has held that the trial
Court did not commit any jurisdictional error nor acted with material
irregularity in dismissing the appellant's application under Order 1 Rule 10(2)
C.P.C.
We shall now refer to the decisions cited by counsel for both the parties.
Though very many decisions were cited, we feel that it is not necessary to
load this judgment by referring to all the citations. It is also not necessary
to multiply citations in this regard.
Ms. Kamini Jaiswal, learned counsel for the appellant relied on the
following judgments:- 1. Khetrabasi Biswal vs. Ajaya Kumar Baral and Others,
(2004) 1 SCC 317.
This is a case of filing of a writ petition filed by the selectees whose
names were omitted by the State Government while purporting to interpret the
service rules, preparing a fresh list without issuing notices to the candidates
prejudiced thereby. This Court remitted the matter to the High Court for
decision afresh after giving opportunity to implead all necessary parties. This
case will have no application for the case on hand because the writ petition was
filed in this case by the selectees whose names are omitted by the State
Government.
Therefore, this Court set aside the order under challenge and remit the
matter to the High Court for decision on merits after giving an opportunity to
the writ petitioners to implead all necessary parties in the writ petition.
2. Dattatreya and Others vs. Mahaveer and Others, (2004) 10 SCC 665 This
case deals with non-impleadment of proper party. In this case, the material
facts were not brought to the notice of the Court and the persons who were
ultimately to be affected were avoided to be impleaded as parties. This Court
held that it was merely not a question of non-impleadment of necessary parties
technically and strictly in accordance with the provisions of the Code of Civil
Procedure, rather was very much a question of proper parties being there before
the Court particularly in the proceedings under Article 226 of the Constitution
of India. This case has no application to the case on hand and distinguishable
on facts and law.
3. Hutchinson vs. Hutchinson, 1947 (2) All ER 792 The King's Bench Division
held as under:- "The parties were married in 1924 and a son was born in
1929. In 1932 the husband bought a house in his own name, and the parties
resided there as their matrimonial home until the husband left to live with
another woman.
The wife obtained a decree of judicial separation and the husband made
payments for the support of his wife and son. The husband applied under s.17 of
the Married Women's Property Act, 1882, for an order for possession of the
house.
Held: the court had a discretion under s.17 which was not affected by the
fact that a decree for judicial separation had been obtained, and in the
circumstances it would be unjust to make an order for possession."
4. Middleton vs. Baldock, 1950 (1) All ER 708 The Court of Appeal held as
under:- "(i) where a husband had deserted his wife and the wife remained
in the matrimonial home she was lawfully there and the husband remained in
occupation by her; possession of a dwelling-house to which the Rent
Restrictions Acts applied could only be ordered on one of the grounds specified
in the Acts, and a tenant could not by agreement waive the statutory protection
afforded by the Acts; and, therefore, the orders for possession were wrongly
made." Denning, L.J., observed as under:- "The reason [why the
husband cannot give possession] is because the wife has a very special position
in the matrimonial home. She is not the sub- tenant or licensee of the husband.
It is his duty to provide a roof over her head. He is not entitled to tell her
to go without seeing that she has a proper place to go to. He is not entitled
to turn her out without an order of the court: see Hutchinson v. Hutchinson
(5). Even if she stays there against his will, she is lawfully there, and, so
long as she is lawfully there, the house remains within the Rent Acts and the
landlord can only obtain possession if the conditions laid down by the Acts are
satisfied." The Court of Appeal held as under:- "A statutory tenant
living with his wife in a flat which constituted the matrimonial home left the
premises following a quarrel with his wife, and purported to surrender them to
the landlords by agreement. His wife remained in occupation with the use of his
furniture. On the wife's refusing to quit the premises, the husband gave her
written notice revoking any authority which she might have from him to occupy
the flat. In proceedings by the landlords against the tenant and his wife for
possession, Held: the tenant had not given up possession, as he remained in
occupation through his wife and furniture, and, accordingly, his statutory
tenancy had not been terminated."
6. Hochtief Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa and Ors.,
[1964] 7 SCR 596 The matter arises under the Industrial Disputes Act and,
therefore, the judgment is not adverted to.
All the above judgments, in our opinion, will be of any assistance to the
case on hand and all the judgments are distinguishable on facts and on law.
Mr. Rana Mukherjee, learned counsel for the respondents relied on the
following judgments:-
1. Dr. H.S. Rikhy and Others vs. The New Delhi Municipal Committee, [1962] 3
SCR 604 This case was cited for the proposition that mere payment of rent
creates no jural relationship.
2. Razia Begum vs. Sahebzadi Anwar Begum and Others, AIR 1958 SC 886 This
case was cited for the proposition of law that the question of addition of
parties under Order 1 Rule 10 of C.P.C. is generally not one of initial
jurisdiction of the court but of the judicial discretion which has to be
exercised in view of all the facts and circumstances of a particular case.
3. Dr. A.K. Roy vs. J.C. Roy Choudhury and Another, AIR 1982 Calcutta 8 In
this case, the High Court held as under:
"Where the application under O.1, R.10 was filed by the wife of real
tenant to be added as a defendant to the suit for ejectment in absence of her
husband and her father-in-law, the ostensible tenant was the benamidar of the
real tenant, the wife could be impleaded as a party to the suit for the ends of
justice as the rules relating to the joinder of parties are based on the
principles of avoiding multiplicity of suits and also preventing possible
conflict of decisions." This is a case prior to the coming into force of
the Benami Transactions Prohibition Act, 1988. It was held that in the case of
alleged Benami, the real tenant who had not entered appearance in the suit and
was not contesting the same could be represented by his wife. In this case,
matrimonial suit was pending. At page 9 of para 9, it has been stated that in
the absence of the real owner, the wife can represent his interest till the
marriage is dissolved by a decree of divorce. In our view, both the courts
below were just and right to ignore this decision as it instead of holding the
appellant comes to the direct aid of the contesting respondent.
4. Bibi Zubaida Khatoon vs. Nabi Hassan Saheb and Another, (2004) 1 SCC 191
This case deals with the case of transfer pendente lite without leave of the
Court. This Court held such a transferee cannot as of right seek impleadment in
the suit though normally joinder based on transfer pendente lite is permitted
to enable the transferee to protect his interest. This Court held the
application under Order 1 Rule 10 was rightly rejected.
5. Vijay Lata Sharma vs. Raj Pal and Another, (2004) 6 SCC 762, In this
case, it was alleged that on the death of the original owner the appellant
became the owner of the property. The respondent-tenant, in his written
statement, has stated that the property was not let out to him in his
individual capacity but to his firm and that the rent was paid to the appellant
on behalf of the firm. At this stage, a third party made an application for
impleadment as a party respondent alleging that the original owner had executed
a Will bequeathing the property to the temple. This Court held that the party
seeking impleadment on the basis of Will was neither a necessary nor proper
party to the release proceedings. This Court also held that the question of
title could not be decided by the prescribed authority under the Act.
6. Balvant N. Viswamitra and Others vs. Yadav Sadashiv Mule and Others,
(2004) 8 SCC 706.
In this case, this Court held that a sub-tenant in a suit for possession by
landlord against tenant is merely a proper party and not a necessary party and,
therefore, it was not necessary for the plaintiffs to join the respondents as
defendants. This Court held as follows:
"A necessary party is one without whom no order can be made effectively;
a proper party is one in whose absence an effective order can be made but whose
presence is necessary for a complete and final decision on the question
involved in the proceeding." A very recent judgment of this Court in B.P.
Achala Anand vs. S. Appi Reddy and Another, (2005) 3 SCC 313 was strongly
relied on by counsel for both sides. This Court considered the right of
deserted wife to stay in the tenancy premises. This Court also considered the
right of the deserted wife to contest the eviction suit. Both the parties
relied on paras 32-35 of the said judgment. They are reproduced hereunder:
32. In our opinion, a deserted wife who has been or is entitled to be in
occupation of the matrimonial home is entitled to contest the suit for eviction
filed against her husband in his capacity as tenant subject to satisfying two
conditions: first, that the tenant has given up the contest or is not
interested I n contesting the suit and such giving up by the tenant-husband
shall prejudice the deserted wife who is residing in the premises; and
secondly, the scope and ambit of the contest or defence by the wife would not
be on a footing higher or larger than that of the tenant himself. In other
words, such a wife would be entitled to raise all such pleas and claim trial
thereon, as would have been available to the tenant himself and no more. So
long as by availing the benefit of the provisions of the Transfer of Property
Act and rent control legislation, the tenant would have been entitled to stay
in the tenancy premises, the wife too can continue to stay exercising her right
to residence as a part of right to maintenance subject to compliance with all
such obligations including the payment of rent to which the tenant is subject.
This right comes to an end with the wife losing her status as wife
consequent upon decree of divorce and the right to occupy the house as part of
right to maintenance coming to an end.
33. We are also of the opinion that a deserted wife in occupation of the
tenanted premises cannot be placed in a position worse than that of a sub-
tenant contesting a claim for eviction on the ground of sub-letting. Having
been deserted by the tenant-husband, she cannot be deprived of the roof over
her head where the tenant has conveniently left her to face the peril of
eviction attributable to default or neglect of himself. We are inclined to hold
and we do so that a deserted wife continuing in occupation of the premises
obtained on lease by her husband, and which was their matrimonial home,
occupies a position akin to that of an heir of the tenant- husband if the right
to residence of such wife has not come to an end. The tenant having lost
interest in protecting his tenancy rights as available to him under the law,
the same right would devolve upon and inhere in the wife so long as she
continues in occupation of the premises. Her rights and obligations shall not
be higher or larger than those of the tenant himself. A suitable amendment in
the legislation is called for to that effect. And, so long as that is not done,
we, responding to the demands of social and gender justice, need to mould the
relief and do complete justice by exercising our jurisdiction under Article 142
of the Constitution. We hasten to add that the purpose of our holding as above
is to give the wife's right to residence a meaningful efficacy as dictated by
the needs of the times; we do not intend nor do we propose the landlord's right
to eviction against his tenant be subordinated to the wife's right to residence
enforceable against her husband. Let both the rights coexist so long as they
can.
34. We have dealt with all the abovesaid aspects of the law as it was urged
on behalf of the landlord, Respondent 1 that Smt Achala, the appellant has no
right to contest or defend herself in these proceedings nor a right to file and
prosecute this appeal as there is no privity of contract between the appellant
and landlord and the appellant is neither a tenant nor so recognised ever by
Respondent 1 landlord. We cannot agree. We feel that the appellant was rightly in
the facts and circumstances of the case permitted by the High Court to be
joined as a party to the proceedings. She was also rightly allowed to contest
the suit and deposit the rent in the court for payment to the landlord for and
on behalf of the tenant-husband.
35. So far as a deserted wife, whose status as wife has not come to an end
by a decree of divorce or by decree for annulment of marriage, is concerned, we
have made the position of law clear as above. However, the case of a divorced
wife stands on a little different footing. Divorce is termination of
matrimonial relationship and brings to an end the status of wife as such.
Whether or not she has the right of residence in the matrimonial home, would
depend on the terms and conditions in which the decree of divorce has been
granted and provision for maintenance (including residence) has been made. In
the event of the provision for residence of a divorced wife having been made by
the husband in the matrimonial home situated in the tenanted premises, such
divorced wife too would be entitled to defend, in the eviction proceedings, the
tenancy rights and rights of occupation thereunder in the same manner in which
the tenant-husband could have done and certainly not higher or larger than that.
She would be liable to be evicted in the same manner in which her husband as
tenant would have been liable to be evicted." The case on hand is a case
of divorced wife. It is true that divorced wife is also a wife. We have already
dealt with the case of the appellant and her right to contest or defend herself
in the pending eviction proceedings. We have already held that she has no right
to contest or defend herself nor a right to file and prosecute the eviction
proceedings. There is no privity of contract between the appellant and the
landlady.
The tenancy is in favour of the appellant's husband. The Family Court has
granted a decree for divorce on payment of certain sum by way of maintenance.
As a matter of fact, the appellant's husband, the tenant is contesting the Rent
Control proceedings and has filed a written statement denying the claim of the
landlady. It was argued by Ms. Kamini Jaiswal on behalf of the appellant that
the appellant was recognised by the landlady as a sub-tenant. In support of the
said submission, she placed reliance on the letter written by the landlady to
the appellant on 18.12.1989. This letter, in our opinion, will be of any aid or
assistance to the appellant. It has been stated in that letter that the
appellant has been paying the rent on behalf of one Duttas and occupying the
said accommodation. The appellant was requested to get a confirmation in
writing that he has no interest in the ground floor accommodation of the house
in question and surrender the possession of the same to the landlady so that
the agreement could be entered into with the appellant on fresh terms if the
appellant proposed to continue to stay there. The letter was concluded by
saying that until these formalities are completed the occupation of the ground
floor accommodation by the appellant is unauthorised and illegal.
We, therefore, cannot agree with the submission of learned counsel for the
appellant that the landlady has so recognized the appellant as sub-tenant. In
para 35 above, this Court deals with the case of a divorced wife. We have
already extracted para 35.
For the foregoing discussion, we are of the opinion that the Court has no
jurisdictional power to add a person as a party who is neither a necessary
party nor a proper party. The appellant in the status of divorcee cannot claim
interest in the suit premises either independently or through her erstwhile
husband and as such she cannot be held to say that she is a party without whose
presence the court cannot adjudicate and pass the decree. She is, therefore,
not a necessary party. The appellant is also not a person whose presence is
necessary to enable the Court effectually and completely to adjudicate all the
questions involved with the suit.
In view of the discussion made above, we find merit and substance in the
submission made by counsel for the respondents. We are of the opinion that the
trial Court and the High Court did not commit any jurisdictional error nor
acted with material irregularity in dismissing the application under Order 1 Rule
10 C.P.C. filed by the appellant.
The impugned orders, therefore, does not call for any interference. The
present appeal is dismissed without any order as to costs.
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