Judgment:
ORDER
S.N. Bhargava, J.
1. This is a revsion petition against the order of the learned Civil Judge, Hindaun City, rejecting the application of the petitioner-applicant filed under Order 1 Rule 10 CPC.
2. The plaintiff non petitioner No. 1 filed a suit on 31-7-1984 for eviction against the defendant non petitioner No. 2 on several grounds including sub-letting the disputed shop to the petitioner. In para 5 of the plaint, it has been stated as under: --
^^mDr nqdku tksM+krHkh ls izfroknh us fcyk btktr oknh] fdlh eqds'k y?kq m|kksx fg.Mksu izksikbZVjlrh'k pUn tSu dks lcySV dj fn;k gS**
3. The suit was contested by the defendant and in reply of para 4 of the plaint, it has been submitted as under:--
^^izfroknh fnukad 31&3&81rd dk fdjk;k oknh dks ;Fkk le; vnk dj pqdk gS A blds ckn fnukad 1&4&81ls oknh us mDr tksM+k nqdku eqrnkfo'k esllZ eqds'k y?kq m|ksx fg.MksuizksizkbZVj lrh'k pUn iq= uRFkh yky tkfr tSu fuoklh fg.Mksu dks 200@&:i;kekgokj fdjk;s ij ns nh rFkk oknh fnukad 1&4&81 ls mDr eqds'k y?kq m|ksxfg.Mksu ls ekgokjh fdjk;k ysdj fdjk;k izkIrh dk bUnzkt ds uhps vius gLrk{kj djrsjgs A ckn esa 1&3&83 ds ckn ds fdjk;k vnk;xh ds vUnzkt ds uhps oknh usgLrk{kj ;g dg dj ugha fd;s fd vHkh rqels fyf[kr esa fdjk;kukek ugha fy[kk;k gSblfy;s vxyh ubZ lky ds 'kq: esa tc eqds'k y?kq m|ksx ds uke ls gh fdjk;k ukekfy[kokmxk rc fdjk;kukek ij tek dj fn;k d:axk bl izdkj mDr eqds'k y?kq m|ksx usoknh dks fn- 30&11&83 rd dk fdjk;k vnk dj fn;k gS mlds ckn dk fdjk;k mDreqd'k y?kq m|ksx ds }kjk ;Fkk le; ckj ckj VS.Mj djus ds ckotqn oknh us fdjk;kc<+kus dh uh;r ls Lohdkj ugha fd;kk A
4. Written statement was filed on 5-11-1984. The plaintiff filed a rejoinder to this part of the written statement on 23-4-1985 denying the allegations of the written statement.
5. During the pendency of the suit, the trial court determined the rent under Section 13(3) of the Act which order was confirmed in appeal by order dated 23-11-1989 where in also there is some discussion about this aspect. The trial court framed the issues. The petitioner filed an application under Order 1 Rule 10 C.P.C. On 23-1-1987 duly supported by an affidavit, to which a reply was also filed by the plaintiff on 16-1-1990, which is also supported by an affidavit of the plaintiff. Application of the petitioner filed under Order 1 Rule 10 CPC was dismissed by order dated 23-1-1990 and it is against this order that the present revision petition has been filed by the petitioner.
6. Meanwhile the trial court framed the issues in which Issue No. 3 reads as under:--
^^vk;k izfroknh us oknxzLr ifjlj eqds'k y?kqm|ksx fg.Mksu ds izksijkbVj lrh'k tSu dks lc&ysVdj; fn;k gS **
7. Learned counsel for the petitioner has very vehemently submitted that before filing the suit, a notice dated 16-1-1984 had been received from the plaintiff which was replied jointly on 15-2-1984 and in the written statement also, the case of the petitioner has been clearly stated. The petitioner thereafter had given a notice to the plaintiff on 26-3-1984, to know his bank account number so that the petitioner could deposit rent regularly every month, but the plaintiff vide its reply dated 31-3-84 wrote back that since the petitioner was not his tenant, it was not necessary for him (plaintiff) to give his bank account number. Thereafter, the petitioner deposited rent under Section 19A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the 'Rent Control Act'). He has drawn my attention to the original account book wherein the entries showing payment of rent made by the petitioner to the plaintiff had been signed by the plaintiff in token of having received the rent. Therefore, it was the duty of the plaintiff himself to have impleaded the petitioner as a party. The petitioner had also moved an application in the appellate court for impleading him as a party to the suit but the appellate court vide its order dated 9-10-1987 refused the application on the ground that the suit was pending in the trial court and it will be for the trial court to decide such an application. In this connection, learned counsel for the petitioner has placed reliance on South Asia Industries Private Ltd. v. S. Sarup Singh, AIR 1966 SC 346, which has been later on relied in Smt. Yamuna v. A. Rama Amin, AIR 1983 Kant. 27, wherein their Lordships have held that a sub-lessee should be impleaded as a party because he alone is interested in showing that the sub-letting was a valid one and thereby meeting the ground of eviction, otherwise if an eviction order against the direct tenant is binding on the sub-lessee, they would be liable to be condemned without hearing. It is no argument that the direct tenant would protect them. Direct tenant may be negligent or incompetent to defend or he may even collude with the landlord or he maynot just bother. This authority has also been relied in Benimadhab Mahrotra v. Howrah Flour Mills Ltd., AIR 1985 Cal 172 wherein a sub-lessee was added as a defendant. Similar view has also been taken in Mohammed Saleha v. Syed Nooruddin (1983) 1 Ren CJ (SN) 117.
8. He has also placed reliance on Changanlal v. Narsingh Pershad, AIR 1973 Andh Pra 1 (FB) wherein it has been held that a summary enquiry cannot be made as to whether relationship of landlord and tenant exists and therefore, at the time of deciding application under Order 1 Rule 10 CPC the trial court ought not to have dismissed the application summarily.
9. Learned counsel for the petitioner has further placed reliance on Harbans Singh v. E.R. Srinivasan, AIR 1979 Delhi 171 wherein the High Court, after detailed discussion and referring to several authorities, has held that it is true that the plaintiff in a suit is dominus litus and he cannot be made, against his consent, to fight a third party other than the defendant impleaded by him. But this is only the normal and general and not invariable rule and in an appropriate case a third party can be impleaded as a party. In an ejectment suit by the landlord against the tenant if the third person applies for getting himself impleaded as a defendant on the ground that he was the real tenant, he is entitled to be impleaded as a defendant as it would avoid and prevent multiplicity of proceedings and the question would be completely and effectively decided in the presence of all the parties.
10. The same view has been expressed again in Devi Dayal Dixit v. Rashtriya Electrical Engineering Co. AIR 1983 Delhi 432.
11. Learned counsel for the petitioner has also placed reliance on Sanwarmal v. Budh Mal 1983 Raj LW 240 wherein his Lordship, relying on South Asia Industries's case (AIR 1966 SC 346) (supra) and Harbans Singh's case (AIR 1979 Delhi 171) (supra) has held that a sub-tenant is a necessary party in a suit for ejectment on the ground of sub-letting and the revision petition was allowed, the judgment of the trial court was set aside on this count and the application of the petitioner under Order 1 Rule 10 CPC for being impleaded as a party was allowed.
12. On the other hand, learned counsel for the respondent has very vehemently submitted that no revision lies against the order passed on an application under Order 1, Rule 10 CPC. The revisional court should not interfere with the discretion exercised by the trial court in this regard. The plaintiff cannot be forced to implead a person against his wish. He has further submitted that even if the order of the trial court is not proper or legal, this Court cannot interfere in revisional jurisdiction unless the impugned order, if allowed to stand, would occasion a failure of justice or would cause irreparable injury to the party against whom it was made. In this connection on Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336, D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh (AIR 1971 SC 2324), Pandurang Dhondi Chougule v. Maruti Hari Jadhav, AIR 1966 SC 153, Managing Director (MIG) Hindustan Aeronautics v. Ajit Prasad AIR 1973 SC 76 and Kamlesh Kumar v. Shiv Ratan 1981 WLN 369 : (AIR 1982 NOC 93) (Raj) wherein it has been held that the trial court in refusing to implead sub-tenant as a party to ejectment suit has not failed to exercise jurisdiction and the revision is not maintainable. It has further been observed that a sub-tenant cannot be impleaded as a party.
13. He has further placed reliance on Mahesh Sewa Samiti Bhilwara v. U. I. T. Bhilwara 1984 Rajasthan LR 351 wherein it has been held that the trial Court in allowing application under Order 1 Rule 10 CPC even if wrong, still revision should not be entertained as there is no failure of justice or irreparable injury has occasioned by such an order.
14. He has also placed reliance on P.V. George v. Bank of Madura Ltd. (1986) Cur CC 328 (Kerala) wherein it has been observed that so long as it has not been established that impleading a third party is necessary for the proper and effective adjudication of the issues involved in the suit and for completely settling the controversy between the parties, additional party cannot be impleaded without the consent of the plaintiff.
15. Reliance has also been placed on Bhalle Singh Subhash Chand v. Ravi Datt (1985) 2 Ren. C. J. 185 (Punj & Har) where the High Court refused to interfere in revision with the finding that the landlord having accepted the alleged sub-tenant as his tenant, as these findings were based on appreciation of evidence.
16. Learned counsel for the respondent has also placed reliance on Samast Panch Kaum Helan, Udaipur v. Jameel Mohd., 1985 Rajasthan LR 477. In that case, the trial court had allowed the application of the Wakf Board for being impleaded as a party in a representative suit, for rendition of accounts, declaration, perpetual injunction and possession of shops situated outside Masjid, and the High Court dismissed the revision petition.
17. Reliance was also placed by learned counsel for the respondent on Mangal Singh v. State of Rajasthan 1986 Rajasthan LR 244 wherein also revision filed against the order of the trial court allowing application under Order 1 Rule 10 CPC was dismissed as the impugned order would not occasion failure of justice or the petitioner would not suffer irreparable injury.
18. He further placed reliance on Birendra Singh v. Narendra Kumar 1988 Raj LW 602 wherein this Court dismissed the revision petition in a case where an application for impleading as a party by the purchaser, in a suit for rent and ejectment was rejected.
19. I have given my thoughtful consideration to the whole matter. It is true that it is not open to the High Court in the exercise of its revisional jurisdiction under Section 115 C.P.C. to question a finding of fact, recorded by a subordinate court. It is also true that Section 115 C.P.C. applies to cases involving questions of jurisdiction i.e. questions regarding irregular exercise or non-exercise of jurisdiction or illegal assumption of jurisdiction by a courtand not against an order even though it is not perfectly legal or justified. It is further true that it is not competent for the High Court to correct even errors of fact or errors of law unless the said errors have relation to the jurisdiction of the court to decide the dispute. After the amendment in Section 115 CPC the High Court cannot interfere in revisional jurisdiction unless the impugned order, if allowed to stand, would occasion a failure of justice or shall cause irreparable injury to the party against whom it was made and therefore, it is necessary for us to examine the facts of the present case. Plaintiff Bhonrilal had filed a suit for rent and ejectment impleading Niranjan Lal only as a defendant. But before filing the suit, the plaintiff had given a notice both to the petitioner as well as Niranjan Lal and that notice was duly replied by them mentioning cleariy that Niranjan Lal was the tenant up to 31-3-1981 but from 1-4-1981, it was M/s. Mukesh Laghu Udyog, Prop. Satish Chand had become the tenant and it may be averred that rent is being received by the plaintiff from M/s. Mukesh Laghu Udyog. Mukesh Laghu Udyog had also given a notice asking for the number of the bank account so that the rent could be deposited in his account regularly. That notice was duly replied by the plaintiff but the number of the bank account was not supplied because according to the plaintiff it was only Niranjan Lal who was his tenant. Then later on M/s, Mukesh Laghu Udyog deposited the rent u/s. 19A of the Rent Control Act. The petitioner had also applied in the appellate court but the appellate court did not acceed to his request vide his order dated 9-10-1987. Thus, we find that the plaintiff was fully aware of the case of the petitioner that he was his direct tenant on and from 1-4-1981 and therefore, it was proper and necessary for the plaintiff to have impleaded the petitioner as the defendant No. 2. He having failed, the petitioner made an application under Order 1 Rule 10 C.P.C. but the trial court has dismissed that application. In his application filed under Order 1 Rule 10 CPC, the petitioner has further submitted that he has no faith in Niranan Lal that he will protect his interest. In the present case, one of the grounds ofejectment is also sub-letting by the original tenant Niranjan Lal to the petitioner. Their Lordships in South Asia Industries's case (AIR 1966 SC 346) (supra) has held that a sub-tenant is a necessary party, inasmuch as it is only the sub-tenant who is interested in defending the suit. That judgment of the Supreme Court has been followed by Karnataka High Court in Smt. Yamuna's case (AIR 1983 Kant 27) (supra), by Calcutta High Court in the case of Benimadhab Mahrotra (AIR 1985 Cal 172) (supra) and by the Delhi High Court in Harbans Singh's case (AIR 1979 Delhi 171) (supra). If a sub-tenant is not impleaded as a party in the suit for eviction and if a sub-tenant is liable to be evicted in an execution decree against the tenant, the subtenant will suffer an irreparable injury and this will occasion a failure of justice because he will be evicted without taking any defence because it may be that the tenant may be negligent or incompetent. He may be in collusion with the landlord or he may not just bother, as are the allegations here also in the appliction under Order 1 Rule 10 CPC. Therefore, a sub-lessee is also entitled to be heard to oppose a decree for eviction. The view was taken by our own High Court in Sanwar Mal's case (1983 Raj LW 240) (supra) with which I am in full agreement. -In that case, learned single Judge had referred to the earlier case of Kamlesh Kumar (AIR 1982 NOC 93) (Raj) relied by learned counsel for the respondents in this case and the said case was distinguished. Other cases relied on by the learned counsel for the respondents are distinguishable; some of them are cases where the application under Order 1 Rule 10 C.P.C. was allowed by the trial court and the High Court refused to interfere in revision because the order allowing addition of party would not cause failure of justice or irreparable injury, but in the present case things are different and application under Order 1 Rule 10 CPC filed by the sub-lessee according to the plaintiff, and direct tenant according to the petitioner, has been dismissed by the trial Court and if decree is passed without impleading him as a party, he is bound to suffer an irreparable injury and will also occasion failure of justice. Moreover, if the petitioner isallowed to be impleaded as a party, it would avoid multiplicity of proceedings. Even the Kerala High Court in the case of George (1986 (1) Cri CC 328) (supra), relied by the learned counsel for the respondent himself, has observed that a party can be impleaded if addition is necessary for the proper and effective adjudication of the issues involved in the suit and for completely settling the controversy between the parties. Moreover, in the present case, plea of the petitioner is that he is not the sub-tenant but a direct tenant and this was known to the plaintiff even before filing the present suit. Thus, I find that the petitioner was a necessary party and the learned court below has seriously erred in not exercising its jurisdiction in impleading the petitioner as a party by allowing the application under Order 1 Rule 10 CPC.
20. In this view of the matter, I am inclined to allow this revision petition and set aside the order of the trial court. Application under Order 1 Rule 10 CPC filed by the petitioner for being impleaded as a party is allowed. No order as to costs.