Neeraj Sharma Vs. the District Sangpur Khadi Gram Udyog Karya Karta Sangh and ors. - Court Judgment

Satish Kumar Mittal, J.

1. Initially, this petition was filed under Section 115 C.P.C., which in view of the proviso added to Section 115 C.P.C. is not maintainable. Hence, on the oral request of the counsel for the petitioner, this petition is treated as a petition under Article 227 of the Constitution of India.

2. The petitioner, Neeraj Sharma, who is one of the defendant in the inter pleader suit filed by respondent No. l under Section 88 C.P.C, has filed his petition for setting aside the order dated August 25, 200 passed by the Civil Judge (Jr. Division), Malerkotla vide which the application filed by the petitioner under Order 35 Rule 5 C.P.C. for dismissing the suit as not maintainable, has been dismissed.

3. In this case, the respondent society took the premises in dispute on rent from one Smt. Shanti Devi daughter of Thakur Dass, who was the owner of the same. Smt. Shanti Devi died in the year 1992, She was issueless. After her death, the petitioner Neeraj Sharma claiming himself to be the owner of the premises on the basis of the sale deed dated 26.7.1994, alleged to be executed in his favour by one Mahadev Singh son of Bhagwan Singh, who is turn claimed to be owner of the property of deceased Smt. Shanti Devi on the basis of the unregistered Will dated 3.4.1991, filed an application for ejectment of the respondent society under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act') i.e. Rent Petition No. 110 of 25.10.1994 on the ground of non payment of rent. Subsequently, the petitioner filed a second petition on the same ground on 11.4.1996. Thereafter, on 17.7.1996, the respondent society filed interpleader suit under Section 88 C.P.C. alleging therein that the Rotary Club, Malerkotla through its President served a legal notice dated 6.7.1996 through its Advocate upon the plaintiff claiming itself to be owner of the premises in dispute. In the said notice, he has advised the plaintiff not to pay rent to Neeraj Sharma as he is not the owner of the building in dispute and has also directed the plaintiff to pay the rent to the Rotary Club (Defendant No. 2 herein). In the notice, defendant No. 2 threatened to initiate proceedings under Section 13 of the Act. In the plaint it has also been averred that defendant No. 3 has also filed a rent application and civil suit with regard to the property in dispute though no detail has been given regarding the said application or suit filed by the said defendant regarding his claim on the suit property.

4. During the pendency of the above suit, one of the rent application has been adjourned sine die, and in another rent application filed by the petitioner, the tenant was directed to deposit the rent in the Court till the dispute is finally settled.

5. In the said suit, the petitioner filed an application under Order 35, Rule 5 C.P.C. pleading that the interpleader suit filed by the plaintiff-respondent is not maintainable as the landlord cannot be compelled to interplead with other defendants who are claiming independent right of ownership over the demised premises. The said application has been dismissed by the trial Court while observing as under:-

I have considered the contentions of learned Counsel for the parties. The provisions of Order 35 Rule 5 C.P.C. are not applicable to the present case, because in the present case, plaintiff do not point out particularly to anyone defendant to be his landlord. On the other hand, case of the defendants is that the plaintiff is not aware as to who is the real owner in order to avoid all legal complications. Subsequently, it would be in the interest of justice, if the defendants put forth their claim and other defendants be given opportunity to contest the same so that it could be ascertained as to who is real owner of the premises in dispute.

6. Counsel for the petitioner submitted that the interpleader suit filed by the plaintiff against the petitioner and respondents No. 2 and 3 is not maintainable in view of the bar under Order 35 Rule 5 C.P.C. which provides that - nothing in the Order shall be deemed to enable agents to sue their principal, 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. He submits that as far as the petitioner is concerned, after the death of original landlord Smt. Shanti Devi, he is claiming to be the owner of the property on the basis of a registered sale deed executed by a person, who claims the property on the basis of the Will executed by Smt. Shanti Devi. Thus, on the basis of the said registered sale deed, he has filed two ejectment applications against the tenants. However, so far as respondents No. 2 and 3 are concerned, though they are also claiming ownership of the demised premises, but not through the previous landlord. They are claiming the ownership of the premises independently. In that situation, the bar created under Rule 5 is applicable. According to the said Rule, a landlord cannot be compelled to interplead with the persons, who do not claim the property through such landlord. Learned Counsel further submitted that the plaintiff has not disclosed on what basis respondents No. 2 and 3 are claiming the property in question. It is not the case of both the respondents that they are claiming the property being legal heirs of the previous landlord or being transferee of the previous landlord. They are claiming the property independently. Thus, the suit filed by the tenant against the petitioner compelling him to interplead with the aforesaid two respondents is not maintainable. In support of his contention, learned Counsel for the petitioner relied upon a decision of this Court in Jugal Kishore and Ors. v. Bhagwan Dass and Ors., (1989-1)95 P.L.R. 530.

7. On the other hand, learned Counsel for respondent No. l submitted that there are three sets of claimants, who are claiming rent from the respondent-tenant. In that situation, the respondent, who is ready to pay the rent, sought declaration from the Court as to whom he has to pay the rent. Therefore, the interpleader suit has been rightly filed by the tenant. In support of his contention, learned Counsel for respondent No. l has placed reliance on a decision of this Court in Jagdish Rai and Anr. of Ludhiana v. Parminder Singh and Ors. (1990-2)98 P.L.R. 661.

8. After hearing the counsel for the parties and going through the copy of the plaint of the interpleader suit filed by respondent No. l and the impugned order, I am of the opinion that this petition filed by the petitioner deserves to be allowed and the interpleader suit filed by respondent No. l is not maintainable in view of the provisions contained in Order 35 Rule 5 C.P.C. Order 35 Rule 5 C.P.C. is reproduced below for ready reference:-

Agents and tenants may not institute interpleader suits:-Nothing in the Order shall be deemed to enable agents to sue their principals, 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.

9. According to the aforesaid provisions, a tenant cannot sue his landlord for compelling him to interplead with any persons other than persons making claim through such landlord. If the other person is claiming the property through the previous landlord and then asking for the rent from the tenant, then to settle such different claims by two or more persons, the tenant can file interpleader suit, but if the other person is claiming the right and interest in the property independently without any reference to the previous landlord and claiming the rent from the tenant, then the interpleader suit filed by the tenant is not maintainable.

10. In Jugal Kishore's case (supra), this Court has held that where certain parties were not claiming through the landlords of the tenant but claimed independent rights of ownership over the demised shop and had denied the rights of the landlords, the provisions of Order 35 Rule 5 C.P.C. were clearly attracted and the tenant could not maintain the interpleader suit against the landlords compelling them to interplead with the aforesaid parties. In that case, one Bhagwan Dass was the tenant, who filed the interpleader suit against Jugal Kishore, defendant No. l (the landlord) alleging therein that Jugal Kishore transferred his right in respect of the demised premises by a Civil Court decree in favour of the defendants. After the transfer, defendants No. 2 and 3 filed a petition under Section 4 of the Haryana Urban (Control of Rent and Eviction) Act against the plaintiff. The plaintiff then received a registered notice from defendants No. 4 to 19 claiming themselves to be owners of the demised shop alleging that defendant No. l was having no right to ownership and defendants No. 1 to 3 have no right to receive the rent. Defendants No. 4 to 19 claimed 'themselves to be owners of the shop and denied the rights of defendant Nos. l to 3. In that situation, this Court has held that defendants No. 4 to 19 were not claiming their ownership on the disputed shop through the original landlord. They have denied the right of the original landlord, therefore, the interpleader suit filed by the tenant in which defendants No. 4 to 19 were claiming independent rights of ownership was held to be not maintainable. Similarly in Jagdish Rai and Anr. v. Sada Nand (1993-2)104 P.L.R. 387 wherein it was held that interpleader suit filed by the tenant against the landlord as well as the Church claiming independent title of ownership in them, would be maintainable. In that case, Sada Nand was the tenant, who took the premises on rent from the predecessor of Jagdish Rai. The United Church of Northern India, Ludhiana issued a notice to Sada Nand, calling upon him to pay rent as it claimed to be the owner of the premises. Thereon, the tenant Sada Nand filed the interpleader suit impleading the Church as well as Jagdish Rai and another as defendants, The trial court dismissed the application filed by Jagdish Rai regarding maintainability of the suit. While flowing the petition, this Court observed as under:-

According to the aforesaid provision, the tenant could not sue his landlord for the purpose of compelling him to interplead with any person other than the person making claim through such landlord. In the case before me, the Church is not claiming that it derived title from Jagdish Rai and another or their predecessors. Both of them are setting up an independent title of ownership in them and, therefore, prohibition contained in Rule 5 of Order 35 of the Code of Civil Procedure is clearly attracted. No suit on behalf of the tenant would be maintainable against his landlord compelling him to interplead the Church. The learned Counsel for the tenant has strongly placed reliance upon a judgment of this Court in Om Parkash Kapoor v. Nirmala Devi, (1988-2)94 P.L.R. 148. This judgment is clearly distinguishable and is not attracted at all to the facts of the present case. In that case, on the death of landlord, two sets of people claimed ownership. One was a widow and another a son. In such circumstances the interpleader suit filed by the tenant was held to be maintainable. However, this is not the position as far as the present case is concerned.

11. In the instant case also, as far as the petitioner is concerned, he is claiming the property in question through the previous landlord. Even according to the plaintiff, the petitioner had purchased the property in question from one Mahadev Singh son of Bhagwan Singh, who is turn claimed ownership of the property on the basis of unregistered will. Thus, the petitioner is claiming the property through the previous landlord whereas as far as defendants No. 2 and 3 are concerned, they are claiming the property independently. In the interpleader suit, it has not been stated by the plaintiff at all on what basis the aforesaid two defendants were claiming the ownership of the property. Merely an averment has been made that the aforesaid two defendants are also claiming the rent of the demised premises on the basis of ownership, therefore, the claim of the aforesaid defendants is independent. It is not a case of the plaintiff that those defendants are claiming the property in question through the previous landlord. In Smt. Mohani Devi v. Shri Gokal Chand and Anr., (1991-1)100 P.L.R. 181, this Court has held that merely by raising the allegations that both the defendants are claiming rent would not justify the filing of the interpleader suit.

12. In view of the aforesaid, this petition is allowed and the impugned order is set aside, and the interpleader suit filed by respondent No. 1 is dismissed as not maintainable.