Jugal Kishore and Others Vs. Bhagwan Dass and Others - Court Judgment

Excerpt:

.....appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a..........the suit was maintainable. according to the trial court, the provisions of o. 35, r. 5 of the code of civil procedure were not applicable to the facts of the present case. consequently, it was held that the suit of the plaintiff was maintainable in the present form. dissatisfied with the same, defendants nos. 1 to 3 have filed this petition in this court.5. the learned counsel for the petitioner submitted that in view of the provisions of o.35, r. 5, c.p.c., the present suit as such was not maintainable. according to the learned counsel yeshwant bhikaji's case (supra) has not been rightly interpreted by the trial court. rather it supports; his contention. he further cited sadashiv hirwe v. trimbak chitnis, air 1957 madh bha 171, in support of his contention. o.35, r. 5, c.p.c., reads as under:--'agents and tenants may not institute inter-pleader suits.-- nothing in this order shall be deemed to enable agents to sue their principles, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords'according to the said provisions, the tenant could not sue his landlords for.....

Judgment:

ORDER

1. This petition is directed against the order of the trial Court dated 4-10-1988 whereby the preliminary issue with regard to the maintainability of the interpleader suit has been decided against the defendant Jugal Kishore.

2. Bhagwan Dass tenant filed the present inter-pleader suit with the submissions that Jugal Kishore defendant No. 1 transferred hisrights in respect of the demised premises through a civil Court decree in favour of defendants Nos. 2 and 3. After the said transfer, the defendants Nos. 2 and 3 filed a petition under S. 4 of the Haryana Urban (Control of Rent and Eviction) Act, against the plaintiff and the rent was fixed at Rs. 80/-per month by the Appellate Authority vide its judgment dated 8-9-1987. The plaintiff then received a registered notice dated 11-12-1987 from defendants Nos. 4 to 19 claiming themselves to be the owners of shop in dispute and alleging Jugal Kishore defendant No. 1 to be their agent and Manager and he was having no right of ownership over the shop in dispute. They further claimed that future rent of the shop in dispute be not paid to defendants Nos. 1 to 3. On the other hand, defendants Nos. 1 to 3 are claiming themselves to be the owners of the shop in dispute and, therefore, the plaintiff being ignorant regarding the rights of the defendants filed the present inter-pleader suit to decide as to who is entitled to receive rent from him. According to the plaintiff-petitioner he is ready and wilting to pay the rent of the shop in dispute as may be directed by the Court. The suit was contested by defendants Nos. 1 to 3. They pleaded that they are the landlords and the plaintiff is a tenant under them. Defendants Nos. 4 to 19 were having no right to issue any notice to the plaintiff for payment of rent to them. Since the plaintiff has not denied the relationship of landlord and tenant between the plaintiff and defendants Nos. 1 to 3 and, therefore, the plaintiff was bound to pay rent to them and he has no locus standi to file the present suit.

3. Defendants Nos. 4 to 19 in their written statement claimed themselves to be the owners of the shop in dispute and denied the rights of defendants Nos. 1 to 3 and prayed that defendants Nos. 4 to 19 be declared as owners of the shop in dispute and defendants Nos. 1 to 3 be restrained from collecting any rent of the shop in dispute from the plaintiff and he be further directed to give rent to them. One of the preliminary issues framed was: 'whether the suit of the plaintiff is not maintainable in the present form? OPD'.

4. The learned trial Court, relying upon the judgment reported as Yeshwant Bhikaji Vilankar v. Sadashiv Govind Arekar, AIR 1940 Bom 414, came to the conclusion that the suit was maintainable. According to the trial Court, the provisions of O. 35, R. 5 of the Code of Civil Procedure were not applicable to the facts of the present case. Consequently, it was held that the suit of the plaintiff was maintainable in the present form. Dissatisfied with the same, defendants Nos. 1 to 3 have filed this petition in this Court.

5. The learned counsel for the petitioner submitted that in view of the provisions of O.35, R. 5, C.P.C., the present suit as such was not maintainable. According to the learned counsel Yeshwant Bhikaji's case (supra) has not been rightly interpreted by the trial Court. Rather it supports; his contention. He further cited Sadashiv Hirwe v. Trimbak Chitnis, AIR 1957 Madh Bha 171, in support of his contention. O.35, R. 5, C.P.C., reads as under:--

'Agents and tenants may not institute inter-pleader suits.-- Nothing in this Order shall be deemed to enable agents to sue their principles, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords'

According to the said provisions, the tenant could not sue his landlords for the purposes of compelling them to interplead with any persons other than persons making claim through such principals or landlords. Admittedly, in the present case defendants Nos. 4 to 19 are not claiming through the landlords defendants Nos. 1 to 3. They claim themselves to be the owners of the shop in dispute and have denied the rights of defendants Nos. 1 to 3. In these circumstances, the said provisions of O.35, R. 5, C.P.C., were clearly attracted and the tenant here could not maintain the suit against the landlords i.e. defendants Nos. 1 to 3 compelling them to interplead with defendants Nos. 4 to 19. In Yeshwant Bhikaji's case (AIR 1940 Bom 414) (supra), it was held that 'a tenant is not permitted to deny his lessor's title at thecommencement of the tenancy and, therefore, in order that an inter-pleader suit may lie, the claim of the party other than the landlord must be consistent with the title of the landlord at the commencement of the tenancy in question'.

6. In the present case, defendants Nos. 4 to 19 are claiming independent rights of ownership and, therefore, the said dispute between the parties inter se could not be decided in the present inter-pleader suit. In these circumstances, the view taken by the trial Court was wrong and illegal. No such inter-pleader suit was maintainable on behalf of the tenant. Defendants Nos. 4 to 19 may seek their remedy, if any, in accordance with law. The tenant is liable to pay rent to his landlords-defendants Nos.2 and 3. Consequently, this petition succeeds, the impugned order is set aside and the preliminary issue is decided in favour of the defendants and against the plaintiff. The parties are directed to appear in the trial Court on 15-3-1989.

7. Revision allowed.