1.0 Present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioner hereinthird partyoriginal applicant to quash and set aside the impugned order passed by the learned Civil Judge (J.D.), Kadi passed below Exh.87 in Regular Civil Suit No. 44 of 1992, by which, the learned trial Court has dismissed the said application preferred by the petitioner herein submitted under Order 1 Rule 10 of the Code of Civil Procedure, by which, it was requested to permit her to be joined as party defendant in the suit in exercise of powers under Order 1 Rule 10 of the Code of Civil Procedure.
2.0 The facts leading to the present Civil Revision Application in nutshell are as under:
2.1. That one Pasabhai Devabhai father of the applicant was the tenant of the suit property. That the original tenant Pasabhai died and at the time of his death respondent nos. 2 to 4 herein were in occupation and possession of the suit property as admittedly applicant herein at the time of death of the original tenant was married and was at her matrimonial house. Respondent no.1 herein original landlord instituted Regular Civil Suit No.44 of 1992 against the respondent nos. 2 to 4 herein as tenants being heirs and legal representatives of original tenant Pasabhai Devabhai residing along with original tenant at the time of his death for recovery of possession / eviction decree in the Court of learned Civil Judge (J.D.), Kadi and by judgment and decree dated 29.2.1996 the learned Civil Judge (J.D.), Kadi passed an eviction decree and directed respondent nos. 2 to 4 herein to handover the possession of the suit premises to the plaintiff.
2.2. Being aggrieved and dissatisfied with the judgment and order passed by the learned Civil Judge (J.D.), Kadi dated 29.2.1996 passed in Regular Civil Suit No.44 of 1992, respondent nos. 2 to 4 herein preferred Regular Civil Appeal No. 58 of 1996 before the learned Appellate Court and the learned 3rd Extra Assistant Judge, Mehsana by judgment and order dated 31.1.2000 allowed the said appeal and remanded the matter to the learned trial Court to frame the additional issue with respect to disclaimer of ownership/ title of the original plaintiff. Therefore, the matter came to be remanded the to the learned trial Court to decide and dispose of the said Regular Civil Suit No.44 of 1992 afresh as per the judgment and order passed by the learned Appellate Court dated 31.1.2000 passed in Regular Civil Appeal No.58 of 1996. That thereafter, on remand the said suit was taken up for hearing by the learned trial Court at that stage the petitioner herein third party married daughter of the original tenant who was already married at the time time of death of the original tenant and who was not residing along with original tenant at the time of his death, submitted application Exh.87 permitting her to be joined as party defendant in exercise of powers under Order 1 Rule 10 of the Code of Civil Procedure by submitting that earlier she was residing with her parents in the suit premises and she was brought up in the suit premises. That the learned trial Court by impugned order has rejected the said application by observing that learned Appellate Court has remanded the matter to the learned trial Court to decide the suit by framing additional issue with respect to disclaimer and also on the ground of delay, laches and also by observing that on merits also, the application is not tenable.
2.3. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court passed below Exh.87 in Regular Civil Suit No.44 of 1992 by which the learned trial Court has rejected the said application submitted by the petitioner to permit her to be joined as defendant in the suit under Order 1 Rule 10 of the Code of Civil Procedure, the petitioner herein third party has preferred Civil Revision Application under Section 115 of the Code of Civil Procedure.
3.0 Shri S.M. Shah, learned advocate for the petitioner has vehemently submitted that the learned trial Court has materially erred in rejecting the application Exh.87 and not permitting the applicant to be joined as defendant in the suit. It is submitted that the learned trial Court has materially erred in rejecting the application Exh.87 on the ground of delay and laches and on the ground that the learned Appellate Court has remanded the matter to the learned trial Court for determination of the issue with respect to disclaimer.
3.1. It is further submitted by Shri S.M. Shah, learned advocate for the petitioner that even otherwise on merits also the learned trial Court ought to have allowed the application submitted by the petitioner. It is submitted that the petitioner had claimed that she has interest in the suit property, the petitioner is required to be joined as party defendant may not be as necessary and proper party but even as interested party.
3.2. It is further submitted by Shri S.M. Shah, learned advocate for the petitioner that even as held by the Full Bench of this Court in the case of Babubhai & Jayantilal Kalyanbhai & Ors v. Shah Bharatkumar Ratilal & Ors reported in 1980 GLR 103 tenancy rights is inheritable and as such dispute is whether on the death of original tenant father of the applicant transmission of tenancy in favour of the applicant has to be examined by the learned trial Court. Therefore, it is submitted that keeping the aforesaid question open whether the tenancy is transmitted in favour of the applicant or not and whether the applicant has become tenant considering Section 5(11)(C) or not, the applicant may be permitted to be joined as party defendant in the suit and thereafter the question whether tenancy is transmitted in favour of the applicant has to be examined by the learned trial Court. Therefore, relying upon the decision of the Full Bench of this Court in the case of Babubhai & Jayantilal Kalyanbhai (supra) and keeping the aforesaid question open, it is requested to allow the present Civil Revision Application by permitting applicant to be joined as party defendant in the suit.
4.0 Heard Shri S.M. Shah, learned advocate for the petitioner at length. At the outset, it is required to be noted and it is not in dispute and even it is not the case on behalf of the petitioner that at the time of death of original tenant, the petitioner was residing in the suit premises along with original tenant. It is required to be noted that as such original plaintiff landlord instituted suit against respondent nos. 2 to 4 hereinoriginal defendants as they were residing along with original tenant at the time of his death. That the learned trial Court decreed the suit which was challenged before the learned Appellate Court and the learned Appellate Court allowed the said appeal quashed and set aside the judgment and decree passed by the learned trial Court and remanded the matter to the learned trial Court to frame the additional issue with respect to disclaimer and thereafter to decide the suit afresh. At that stage, when on remand, the learned trial Court was hearing the suit, the applicantdaughter of the original tenant who had married much prior to death of the tenant and residing at her matrimonial home had submitted the application Exh.87 permitting her to be joined as defendant in the suit under Order 1 Rule 10 of the Code of Civil Procedure by submitting that she has interest in the suit property as she was brought up in the suit property and staying with her parents earlier. The said application has been rejected by the learned trial Court on the ground of delay and laches and on the ground that learned trial Court has remanded the matter to frame the additional issue with respect to disclaimer and by also observing that on merits also the application deserves to be dismissed. Therefore, considering the application Exh.87, it appears that applicant submitted application under Order 1 Rule 10 of the Code of Civil Procedure submitting that she is interested in the suit property and not claiming to be the tenant and / or submitting that the tenancy is transmitted in her favour on the death of original tenant and / or contending that on the death of original tenant by succession she has inherited the tenancy and therefore, she is required to be joined as defendant. As stated above, the case on behalf of the applicant so stated in the application submitted below Exh.87 is that as she was brought up in the suit premises earlier and was residing along with her parents earlier she is interested in the suit property. The aforesaid can hardly be a ground to permit her to be joined as party in a suit for recovery of possession filed against the heirs of original tenant who were residing along with the original tenant at the time of his death. Admittedly, respondent nos. 2 to 4 herein original defendants were residing in the suit premises on the death of original tenant as well as subsequently, therefore, landlord was required to institute suit only against those persons. A person is required to be joined in the suit in exercise of powers under Order 1 Rule 10 of the Code of Civil Procedure if it is proved that he is necessary and proper party and in his/ her absence no decree can be passed. Considering the aforesaid facts and circumstance of the case, it cannot be said that the applicant can be said to be necessary and / or proper party in whose absence decree can be passed.
5.0 It is also required to be noted that initially when the suit was filed against the respondent nos. 2 to 4 herein original defendants and the same was decreed and even in an appeal the applicant did not come forward and submitted that she is interested in the suit property. Only after remand, when the learned Appellate Court quashed and set aside the judgment and decree passed by the learned trial Court and remanded the matter to the learned trial Court the applicant submitted application at a belated stage and the same is rightly rejected by the learned trial Court on that ground also.
6.0 Now, so far as reliance placed upon the decision of the Full Bench of this Court in the case of Babubhai & Jayantilal Kalyanbhai (supra) the said decision would not be of any assistance of the present applicant and / or same would not be applicable to the facts of the present case. It is required to be noted that in the present case this Court is not required to consider whether the applicant has inherited tenancy and / or tenancy is transmitted in favour of the applicant on the death of the original tenant or not. As stated above, by submitting application Exh.87 it was never the case of the applicant that she has inherited the tenancy and / or there is transmission of tenancy in her favour on the death of original tenant. It is required to be noted that even at the time of death, the applicant was already married and was / is residing at her matrimonial home. Therefore, the aforesaid decision would not be applicable to the facts of the present case.
7.0 In view of the above and for the reasons stated above, present Civil Revision Application fails and same deserve to be dismissed and is accordingly dismissed. Rule discharged. Adinterim relief, if any, stands vacated forthwith. Registry is directed to send the writ of this order to the learned trial Court immediately as original suit is of the year 1992 which was stayed pursuant to the interim order passed by this Court.
“kaushik”
sd/ ( M. R. Shah, J. )