Case Note & Summary
The petitioners, Kalpesh Babulal Jain and Rajkumar Khimchand Jain, claimed to be co-owners of a property that was the subject of RAE & R Suit No.1016 of 2016 pending in the Small Causes Court, Bombay. The suit was originally filed by respondents 1 and 2 (Sheikh Abdul Kased and Shaikh Santona Abdul Kased) against respondent 3 (Kishormal Bhabutmal) seeking eviction on the ground that they were exclusive owners and respondent 3 was a tenant. During the pendency of that suit, a title dispute arose between the petitioners and respondents 1 and 2, leading to another suit (S.C. Suit No.443 of 2015) in which an interim order was passed restraining the petitioners from acting on their sale deed. The petitioners filed three applications before the High Court, which were disposed of by a common order recording consent terms. One of the terms (clause 7) provided that respondents 1 and 2 may institute future eviction proceedings against any tenant or occupant only with prior leave of this Court, and that the appellants (petitioners) would be joined as parties to any eviction action filed by respondents 1 and 2, and vice versa. Relying on this consent term, the petitioners filed an application in the eviction suit seeking to be impleaded as defendants. The trial court rejected the application, holding that the consent terms required the petitioners to obtain prior leave of this Court before seeking impleadment. Aggrieved, the petitioners filed the present writ petition. The High Court examined the consent terms and held that the requirement of prior leave applied only to the institution of eviction proceedings, not to the joinder of parties. Since the petitioners were not instituting any proceeding but merely seeking to be joined as parties in an existing suit, no prior leave was required. The court further noted that the consent terms expressly contemplated that the petitioners would be joined as parties to any eviction action. Therefore, the trial court's order was set aside, and the petitioners were allowed to be impleaded as defendants in the eviction suit. The High Court directed the trial court to dispose of the suit expeditiously, preferably within six months.
Headnote
A) Civil Procedure - Impleadment of Co-owner - Order 1 Rule 10 CPC - Consent Terms - The petitioners, claiming 3/4th share in the suit property, sought impleadment in an eviction suit filed by respondents 1 and 2 against respondent 3. The trial court rejected the application, holding that the consent terms required prior leave of this Court for future eviction proceedings. The High Court held that the consent terms only required prior leave for instituting eviction proceedings, not for joining as a party. Since the petitioners were already co-owners and the consent terms contemplated their joinder, the trial court's order was set aside. (Paras 1-8) B) Civil Procedure - Interpretation of Consent Terms - Order 23 Rule 3 CPC - The consent terms recorded by this Court in earlier proceedings provided that the respondents may institute future eviction proceedings only with prior leave of this Court, and that the appellants (petitioners herein) would be joined as parties to any eviction action. The High Court interpreted that the requirement of prior leave applies only to the institution of eviction proceedings, not to the joinder of parties. The petitioners' application for impleadment did not require prior leave as they were not instituting any proceeding. (Paras 3-7)
Issue of Consideration
Whether the petitioners, claiming to be co-owners, are entitled to be impleaded as parties in the eviction suit (RAE & R Suit No.1016 of 2016) based on the consent terms recorded by this Court, and whether the trial court erred in rejecting their application for impleadment.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 19th February 2018, and directed that the petitioners be impleaded as defendants in RAE & R Suit No.1016 of 2016. The trial court was directed to dispose of the suit expeditiously, preferably within six months.
Law Points
- Impleadment under Order 1 Rule 10 CPC
- Consent terms binding on parties
- Right of co-owner to be joined in eviction proceedings
- Interpretation of consent terms
