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CASE NO.:

Appeal (civil) 2565 of 2001

PETITIONER:

Ruma Chakraborty

RESPONDENT:

Sudha Rani Banerjee & Anr.

DATE OF JUDGMENT: 04/10/2005

BENCH:

Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT:

J U D G M E N T

Dr. AR. Lakshmanan, J.

The appellant, who is an unsuccessful intervenor in both the courts below, is the

divorced wife of the recorded sole tenant (second respondent herein) who is also the

sole defendant in the suit filed by the first respondent herein \026 Sudha Rani Banerjee.

The instant appeal is against the judgment and order dated 26.09.2000 passed

by the High Court of Calcutta in C.O. No. 582 of 2000 rejecting the appellant's

application for being added as a party defendant under Order 1 Rule 10 (2) of the

C.P.C. The High Court concurred with the judgment and order dated 02.02.2000

passed by the IIIrd Civil Judge, Alipore. The High Court rejected the plea of the

appellant that she is directly interested in the tenanted suit premises by way of her

entitlement towards maintenance which includes residence as per the Hindu Adoptions

and Maintenance Act, 1956.

The facts of the case, in brief, are as follows:-

As already stated the action arises out of a suit for ejectment filed on 28.03.1992

on the ground of default, subletting without the prior written consent of the contesting

first respondent herein (plaintiff landlady). Her case, very briefly, is that after dissolu

tion

of the marriage, the appellant is no longer a part of the proforma respondent's family

having the status of a rank outsider/stranger and she was in illegal occupation of the

suit premises in contravention of the statutory provisions of the West Bengal Premises

Tenancy Act, 1956 (hereinafter referred to as 'the Act'). The proforma

respondent/husband has admittedly effaced himself from the suit premises long prior to

the institution of the suit retaining any control of suit premises. It is the case of the

contesting respondent that the appellant is in illegal occupation without the prior written

consent of the landlady and, therefore, has attracted the provisions of Section 13 (1)(a)

of the Act and has become liable for eviction.

The sole defence taken in the suit is that the son and daughter are entitled to the

tenancy right and virtually can step into the shoes of the recorded tenant who is still

alive and contesting the suit who is long back walked out of the suit premises parting

with exclusive legal possession to the appellant.

The appellant filed application under Order 1 Rule 10 (2) C.P.C. for being

impleaded as a party defendant before the Civil Judge, Alipore on 17.12.1999 almost 8

years after the institution of the suit. The Civil Judge dismissed the appellant's

application on 02.02.2000. The appellant, thereafter, moved the High Court in civil

revisional jurisdiction and the High Court, by its judgment and order dated 26.09.2000,

rejected the appellant's application concurring with the finding of the courts below and

finding no infirmity therein. Being aggrieved, the appellant has preferred the above

appeal in this Court.

We heard Ms. Kamini Jaiswal, learned counsel for the appellant and Mr. Rana

Mukherjee, learned counsel for the respondents.

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Learned counsel for the respective parties took us through the pleadings,

annexures and the orders passed by the courts below and other relevant records.

Ms. Kamini Jaiswal, learned counsel for the appellant, made the following

submissions:-

1) that the appellant being the divorced wife continues to enjoy the status

akin to that of licensee under her husband in respect of tenancy of her

husband pursuant to the provisions of Sections 3 and 18 of the Hindu

Adoptions and Maintenance Act, 1956;

2) that by precluding the appellant from contesting the suit, the suit would

be decreed ex parte to the detriment of the appellant and her minor

children who even after the said decree of divorce continue to have a

right of residence in the suit premises and cannot be dispossessed

except in accordance with law;

3) that the High Court has failed to appreciate that even after the passing

of a decree of divorce even though the marital status of the husband

and wife is brought to an end, the divorced wife still has a right of

maintenance which right includes right of residence. Consequently,

the appellant had a right of her residence vis-`-vis her husband and

consequently her stay in the rented accommodation of her husband

could not be treated as illegal.

Ms. Kamini Jaiswal, learned counsel for the appellant, invited our attention to the

documents filed and, in particular, the notice dated 18.12.1989 which was issued after

the decree of divorce by the landlady and also took us through the averments made in

the plaint and in the written statement. In support of her contention, she cited the

following decisions:-

1. Hochtief Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa

and Ors., [1964] 7 SCR 596

2. Khetrabasi Biswal vs. Ajaya Kumar Baral and Others, (2004) 1 SCC

317

3. Dattatreya and Others vs. Mahaveer and Others, (2004) 10 SCC 665

4. Hutchinson vs. Hutchinson, 1947 (2) All ER 792

5. Middleton vs. Baldock, 1950 (1) All ER 708

6. Old Gate Estates, Ltd. Vs. Alexander and Another, 1949 (2) All ER

822

7. Brown vs. Draper, 1944 (1) All ER 246

Mr. Rana Mukherjee, learned counsel for the respondents, made the following

submissions by way of reply:-

1) the view taken by the High Court is highly justified in the facts and

circumstances of the case and does not deserve any interference by

this Court;

2) That Order 1 Rule 10(2) of the C.P.C. envisages addition of

defendants only in two specified cases:

a) parties who ought to have been joined as necessary parties;

b) whose presence is necessary for complete and effective

adjudication of all the questions involved in the suit as proper

parties;

3) That the Court does not have the jurisdiction or the power to add

parties who do not fall under either of these two categories.

4) Who are necessary parties have been made clear by the Act itself. Only

notifying sub-tenants are to be made parties under Section 13(2) of the

Act. Only when the tenant obtains the prior written consent of the

landlord under Section 14 of the Act and both the tenant and the sub-

tenant have notified under Section 16(1) that the sub-tenancy may be

said to be perfected and the subtenant a notifying sub-tenant. Admittedly

this is not the case of the appellant.

Therefore, he submitted that the appellant cannot be impleaded as a

necessary party.

5) So far as proper party is concerned, he submitted that the law is firmly

established that the intervenor has to show a direct legal interest as

opposed to commercial or indirect interest in the subject matter of

litigation especially in a suit relating to immoveable property. The

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intervenor has to show that in her absence some order is to be passed

which will affect her legal right. It was submitted that the appellant not

being a party to the contractual tenancy is not able to claim any right, title

or interest through her divorced husband and that she has totally failed to

demonstrate any legal interest which would entitle her to be impleaded as

a proper party also.

6) The appellant being neither a necessary nor a proper party, there is no

machinery available at law to implead the appellant as party defendant.

In support of his contention, he relied on the following decisions:-

1. Dr. H.S. Rikhy and Others vs. The New Delhi Municipal Committee,

[1962] 3 SCR 604

2. Razia Begum vs. Sahebzadi Anwar Begum and Others, AIR 1958 SC 886

3. Kumar Jagdish Chandra Sinha and Others vs. Eileen K. Patricia

D'Rozarie (Mrs) (1995) 1 SCC 164

4. B.P. Achala Anand vs. S. Appi Reddy and Another, (2005) 3 SCC 313

5. Bibi Zubaida Khatoon vs. Nabi Hassan Saheb and Another, (2004) 1

SCC 191

6. India Umbrella Manufacturing Co. and Others vs. Bhagabandei

Agarwalla and Ors. (2004) 3 SCC 178

7. Vijay Lata Sharma vs. Raj Pal and Another, (2004) 6 SCC 762

8. Balvant N. Viswamitra and Others vs. Yadav Sadashiv Mule and Others,

(2004) 8 SCC 706.

9. Dr. A.K. Roy vs. J.C. Roy Choudhury and Another, AIR 1982 Calcutta 8

We have carefully gone through the pleadings and other records and also the

judgments relied on by both the parties including the provisions of law under the West

Bengal Premises Tenancy Act, 1956.

Section 2(d) of the Act defines 'landlord' as follows:

"'landlord' includes any person who, for the time being, is entitled to receive

or but for a special contract, would be entitled to receive the rent of any

premises, whether or not on his own account."

Section 2(h) of the Act defines 'tenant' as follows:

"'tenant' means any person by whom or on whose account or behalf, the

rent of any premises is , or but for a special contract would be, payable and

includes any person continuing in possession after the termination of his

tenancy or in the event of such person's death, such of his heirs as were

ordinarily residing with him at the time of his death but shall not include any

person against whom any decree or order for eviction has been made by a

Court of competent jurisdiction."

The only question for consideration in this appeal is whether the appellant has a

right to be impleaded as party defendant. As per the appellant's own averment, the

proforma respondent has divested himself of physical possession. While dissolving

marriage under Section 13-B of the Hindu Marriage Act, 1955, the matrimonial court

with the consent of the parties ordered the proforma respondent to pay a sum of

Rs.200/- p.m. for maintenance of the minors only. The appellant, in our opinion, by

such consent order has expressly waived her right to maintenance.

Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 reads thus:

""maintenance" includes-

(i) in all cases, provision for food, clothing, residence, education and

medical attendance and treatment;

(ii) in the case of an unmarried daughter, also the reasonable

expenses of and incident to her marriage;"

Section 18 of the Hindu Adoptions and Maintenance Act, 1956 reads as follows:-

"18. Maintenance of wife.- (1) Subject to the provisions of this section, a

Hindu wife, whether married before or after the commencement of this Act,

shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without

forfeiting her claim to maintenance,-

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(a) if he is guilty of desertion, that is to say, of abandoning her without

reasonable cause and without her consent or against her wish, or of

wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable

apprehension in her mind that it will be harmful or injurious to live with

her husband;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or

habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separartely.

(3) A Hindu wife shall not be entitled to separate residence and

maintenance from her husband if she is unchaste or ceases to be a Hindu

by conversion to another religion."

Section 23 of the Hindu Adoptions and Maintenance Act, 1956 reads as follows:-

"Amount of maintenance.- (1) It shall be in the discretion of the Court to

determine whether any, and if so what, maintenance shall be awarded

under the provisions of this Act, and in doing so, the Court shall have due

regard to the considerations set out in sub-section (2) or sub-section (3), as

the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a

wife, children or aged or infirm parents under this Act, regard shall be had

to-

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether the claimant is justified in

doing so;

(d) the value of the claimant's property and any income derived from such

property, or from the claimant's own earnings or from any other source;

(e) the number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenance, if any, to be awarded to a

dependant under this Act, regard shall be had to-

(a) the net value of the estate of the deceased after providing for the

payment of his debts;

(b) the provision, if any, made under a will of the deceased in respect of the

dependant;

(c) the degree of relationship between the two;

(d) the reasonable wants of the dependant;

(e) the past relations between the dependant and the deceased;

(f) the value of the property of the dependant and any income derived from

such property, or from his or her earnings or from any other source;

(g) the number of dependants entitled to maintenance under this Act."

Section 25 of the Hindu Marriage Act, 1955 reads as follows:-

"25. Permanent alimony and maintenance.-(1) Any Court exercising

jurisdiction under this Act may, at the time of passing any decree or at any

time subsequent thereto, on application made to it for the purpose by either

the wife or the husband, as the case may be, order that the respondent shall

pay to the applicant for her or his maintenance and support such gross sum

or such monthly or periodical sum for a term not exceeding the life of the

applicant as, having regard to the respondent's own income and other

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property, if any, the income and other property of the applicant, the conduct

of the parties and other circumstances of the case, it may seem to the Court

to be just, and any such payment may be secured, if necessary, by a charge

on the immoveable property of the respondent.

(2) If the Court is satisfied that there is a change in the circumstances of

either party at any time after it has made an order under sub-section (1), it

may, at the instance of either party, vary, modify or rescind any such order

in such manner as the Court may deem just.

(3) If the Court is satisfied that the party in whose favour an order has been

made under this section has remarried or, if such party is the wife, that she

has not remained chaste, or, if such party is the husband, that he has had

sexual intercourse with any woman outside wedlock, it may at the instance

of the other party vary, modify or rescind any such order in such manner as

the Court may deem just."

A perusal of Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956

would clearly show that the intention of the legislature by including food, clothing,

residence etc. was to provide a real maintenance and not a bare or starving

maintenance. The intention of the legislature is further indicative from the words "also

the reasonable expenses of" appearing in clause (ii) of Section 3(b), clearly meaning

thereby that an unmarried daughter besides the expenses of food, clothing, residence

etc. is also entitled to the expenses of and incident to her marriage. The intention of

the legislature becomes absolutely clear and lucid from the heading and contents of

Section 23 of the Hindu Adoptions and Maintenance Act, 1956 which speaks of amount

of maintenance. Therefore, it can safely be said that what is implicit under Section 3 is

made explicit in Section 23. In the instant case, while dissolving the marriage under

Section 13(b) of the Hindu Marriage Act, 1955, the court ordered maintenance for

minors only with mutual consent.

According to Ms. Kamini Jaiswal, learned counsel for the appellant,

maintenance includes residence and, therefore, the appellant is entitled to stay on in

the suit premises as a licensee under her husband. The fact remains otherwise. The

husband parted with legal possession and not retaining any control thereof whatsoever

without complying with the statutory provisions of the Act which attract the provisions of

Section 13(1)(a) of the Act. Section 13(1)(a) of the Act is attracted where the tenant

without the prior written consent of the landlord transfers, assigns or sublets in whole or

in part of the suit premises. The contesting respondents case in the suit in para 4

reads as follows:-

"The defendant left the suit premises by inducting some strangers outsiders

sometime in the month of November, 1989. It may be mentioned that the

defendant took the tenancy for residential purposes and in fact was

occupying the same with the members of his family that is to say his wife

and children. All of a sudden without the consent of the plaintiff the

defendant inducted some strangers outsiders in the suit premises in

contravention of the terms of tenancy and allowed the said stranger

outsiders to occupy a portion of the suit premises along with the members of

his family and the defendant himself left the same allowing the said stranger

outsiders to continue in occupation of the same illegally and without any

authority whatsoever."

The husband of the appellant filed written statement. Para 7 of the written

statement reads as follows:-

"That with regard to the contention made in paragraph 4 of the plaint, it is

emphatically denied that any strangers and/or outsiders were ever inducted

in the suit premises by the defendant at any time or at all. As admitted by

the plaintiff the defendant took tenancy of the suit premises for the purpose

of residing there with his family. It is totally false to say as stated by the

plaintiff that any stranger and/or outsider was ever allowed to occupy a

portion of the suit premises. The defendant for his own business and

professional activities has to live outside the suit premises keeping the

members of his family viz. his son and daughter in the suit premises in the

care and custody of the mother of the children, who has since been

divorced by a decree by mutual consent. The said divorced wife i.e. the

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mother of the children has been staying in the suit premises only as the

custodian of the said minor son and daughter of this defendant. The

defendant as the father of those minor children did never sever his

connection with those children. As such the defendant had no obligation to

handover the possession of the suit premises to the plaintiff, particularly

when his dearest and nearest ones i.e. the children of his own both having

the right and claim of any property including this tenancy right unless

divested by the defendant or under any law in force. The defendant has

already obtained a decree of divorce on mutual consent from a competent

court of law. Under the said decree, the children born out of the wedlock

were handed over to the custody of the wife and the defendant was directed

to pay a sum of Rs.200/- every month to the wife for the maintenance of

these minor children. The wife, by virtue of the said divorce decree may not

be the member of the defendant's family, but the children cannot lose their

right to remain in occupation of the suit premises as the members of the

family of this defendant. This defendant, it is reiterated even at the cost of

reputation never allowed his ex-wife qua ex-wife to occupy the suit

premises. She is therein the suit premises only as the custodian of the

minor children of the defendant, the monthly rents payable are being paid

on account and/or behalf of the defendant. In no stretch of imagination the

lady can be said to be in occupation of the suit premises instead of or in

place of the defendant. She is there only as the custodian of the minor

children of the defendant who have every right to continue in possession of

the suit premises as members of the family of the defendant. It is once

again emphatically denied that the defendant did ever or at all induct any

stranger/outsider in the suit premises or in any part thereof."

It is thus seen from the above averment in the written statement that the

husband has never allowed his wife to occupy the suit premises and that she is in

possession of the suit premises only as a custodian of the minor children of the

defendant and that the monthly rents payable are being paid on account and on behalf

of the defendant. The husband also entered appearance in the suit and is contesting

the suit by filing a written statement and, therefore, the appellant has no locus standi to

be impleaded in the suit either as a necessary or a proper party in whose presence the

suit ought to be or should be heard.

The trial Judge also in his order arrived at the following conclusion:-

a) that the mere payment of money cannot create a jural

relationship of landlord and tenant;

b) the appellant is neither a necessary nor a proper party which is

in conformity with the provisions of the West Bengal Premises

Tenancy Act, 1956 and the well settled principles of law

governing addition of proper parties;

c) that the appellant could not continue as a joint tenant after

dissolution of marriage;

d) since the original tenant was alive and contesting the suit, the

question of representing the interest of the minor son could not

arise.

On these findings, the trial Judge dismissed the appellant's application for being

impleaded as a party defendant.

The High Court of Calcutta, vide its judgment which is under challenge,

concurred with the findings of the trial Court and has held that the trial Court did not

commit any jurisdictional error nor acted with material irregularity in dismissing the

appellant's application under Order 1 Rule 10(2) C.P.C.

We shall now refer to the decisions cited by counsel for both the parties.

Though very many decisions were cited, we feel that it is not necessary to load this

judgment by referring to all the citations. It is also not necessary to multiply citations

in

this regard.

Ms. Kamini Jaiswal, learned counsel for the appellant relied on the following

judgments:-

1. Khetrabasi Biswal vs. Ajaya Kumar Baral and Others, (2004) 1 SCC 317.

This is a case of filing of a writ petition filed by the selectees whose names were

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omitted by the State Government while purporting to interpret the service rules,

preparing a fresh list without issuing notices to the candidates prejudiced

thereby. This Court remitted the matter to the High Court for decision afresh

after giving opportunity to implead all necessary parties. This case will have no

application for the case on hand because the writ petition was filed in this case

by the selectees whose names are omitted by the State Government.

Therefore, this Court set aside the order under challenge and remit the matter to

the High Court for decision on merits after giving an opportunity to the writ

petitioners to implead all necessary parties in the writ petition.

2. Dattatreya and Others vs. Mahaveer and Others, (2004) 10 SCC 665

This case deals with non-impleadment of proper party. In this case, the material

facts were not brought to the notice of the Court and the persons who were

ultimately to be affected were avoided to be impleaded as parties. This Court

held that it was merely not a question of non-impleadment of necessary parties

technically and strictly in accordance with the provisions of the Code of Civil

Procedure, rather was very much a question of proper parties being there before

the Court particularly in the proceedings under Article 226 of the Constitution of

India. This case has no application to the case on hand and distinguishable on

facts and law.

3. Hutchinson vs. Hutchinson, 1947 (2) All ER 792

The King's Bench Division held as under:-

"The parties were married in 1924 and a son was born in 1929. In 1932 the

husband bought a house in his own name, and the parties resided there as

their matrimonial home until the husband left to live with another woman.

The wife obtained a decree of judicial separation and the husband made

payments for the support of his wife and son. The husband applied under

s.17 of the Married Women's Property Act, 1882, for an order for

possession of the house.

Held: the court had a discretion under s.17 which was not affected by the

fact that a decree for judicial separation had been obtained, and in the

circumstances it would be unjust to make an order for possession."

4. Middleton vs. Baldock, 1950 (1) All ER 708

The Court of Appeal held as under:-

"(i) where a husband had deserted his wife and the wife remained in the

matrimonial home she was lawfully there and the husband remained in

occupation by her; possession of a dwelling-house to which the Rent

Restrictions Acts applied could only be ordered on one of the grounds

specified in the Acts, and a tenant could not by agreement waive the

statutory protection afforded by the Acts; and, therefore, the orders for

possession were wrongly made."

Denning, L.J., observed as under:-

"The reason [why the husband cannot give possession] is because the wife

has a very special position in the matrimonial home. She is not the sub-

tenant or licensee of the husband. It is his duty to provide a roof over her

head. He is not entitled to tell her to go without seeing that she has a

proper place to go to. He is not entitled to turn her out without an order of

the court: see Hutchinson v. Hutchinson (5). Even if she stays there against

his will, she is lawfully there, and, so long as she is lawfully there, the house

remains within the Rent Acts and the landlord can only obtain possession if

the conditions laid down by the Acts are satisfied."

5. Old Gate Estates, Ltd. Vs. Alexander and Another, 1949 (2) All ER 822

The Court of Appeal held as under:-

"A statutory tenant living with his wife in a flat which constituted the

matrimonial home left the premises following a quarrel with his wife, and

purported to surrender them to the landlords by agreement. His wife

remained in occupation with the use of his furniture. On the wife's refusing

to quit the premises, the husband gave her written notice revoking any

authority which she might have from him to occupy the flat. In proceedings

by the landlords against the tenant and his wife for possession,

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Held: the tenant had not given up possession, as he remained in occupation

through his wife and furniture, and, accordingly, his statutory tenancy had

not been terminated."

6. Hochtief Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa and Ors.,

[1964] 7 SCR 596

The matter arises under the Industrial Disputes Act and, therefore, the judgment

is not adverted to.

All the above judgments, in our opinion, will be of any assistance to the case on

hand and all the judgments are distinguishable on facts and on law.

Mr. Rana Mukherjee, learned counsel for the respondents relied on the following

judgments:-

1. Dr. H.S. Rikhy and Others vs. The New Delhi Municipal Committee,

[1962] 3 SCR 604

This case was cited for the proposition that mere payment of rent creates no

jural relationship.

2. Razia Begum vs. Sahebzadi Anwar Begum and Others, AIR 1958 SC 886

This case was cited for the proposition of law that the question of addition of

parties under Order 1 Rule 10 of C.P.C. is generally not one of initial jurisdiction

of the court but of the judicial discretion which has to be exercised in view of all

the facts and circumstances of a particular case.

3. Dr. A.K. Roy vs. J.C. Roy Choudhury and Another, AIR 1982 Calcutta 8

In this case, the High Court held as under:

"Where the application under O.1, R.10 was filed by the wife of real tenant

to be added as a defendant to the suit for ejectment in absence of her

husband and her father-in-law, the ostensible tenant was the benamidar of

the real tenant, the wife could be impleaded as a party to the suit for the

ends of justice as the rules relating to the joinder of parties are based on the

principles of avoiding multiplicity of suits and also preventing possible

conflict of decisions."

This is a case prior to the coming into force of the Benami Transactions

Prohibition Act, 1988. It was held that in the case of alleged Benami, the real

tenant who had not entered appearance in the suit and was not contesting the

same could be represented by his wife. In this case, matrimonial suit was

pending. At page 9 of para 9, it has been stated that in the absence of the real

owner, the wife can represent his interest till the marriage is dissolved by a

decree of divorce. In our view, both the courts below were just and right to

ignore this decision as it instead of holding the appellant comes to the direct aid

of the contesting respondent.

4. Bibi Zubaida Khatoon vs. Nabi Hassan Saheb and Another, (2004) 1

SCC 191

This case deals with the case of transfer pendente lite without leave of

the Court. This Court held such a transferee cannot as of right seek

impleadment in the suit though normally joinder based on transfer pendente lite

is permitted to enable the transferee to protect his interest. This Court held the

application under Order 1 Rule 10 was rightly rejected.

5. Vijay Lata Sharma vs. Raj Pal and Another, (2004) 6 SCC 762,

In this case, it was alleged that on the death of the original owner the

appellant became the owner of the property. The respondent-tenant, in his

written statement, has stated that the property was not let out to him in his

individual capacity but to his firm and that the rent was paid to the appellant

on behalf of the firm. At this stage, a third party made an application for

impleadment as a party respondent alleging that the original owner had

executed a Will bequeathing the property to the temple. This Court held that

the party seeking impleadment on the basis of Will was neither a necessary

nor proper party to the release proceedings. This Court also held that the

question of title could not be decided by the prescribed authority under the

Act.

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6. Balvant N. Viswamitra and Others vs. Yadav Sadashiv Mule and Others,

(2004) 8 SCC 706.

In this case, this Court held that a sub-tenant in a suit for possession by

landlord against tenant is merely a proper party and not a necessary

party and, therefore, it was not necessary for the plaintiffs to join the

respondents as defendants. This Court held as follows:

"A necessary party is one without whom no order can be made

effectively; a proper party is one in whose absence an effective order

can be made but whose presence is necessary for a complete and final

decision on the question involved in the proceeding."

A very recent judgment of this Court in B.P. Achala Anand vs. S. Appi Reddy

and Another, (2005) 3 SCC 313 was strongly relied on by counsel for both sides. This

Court considered the right of deserted wife to stay in the tenancy premises. This Court

also considered the right of the deserted wife to contest the eviction suit. Both the

parties relied on paras 32-35 of the said judgment. They are reproduced hereunder:

32. In our opinion, a deserted wife who has been or is entitled to be in

occupation of the matrimonial home is entitled to contest the suit for eviction

filed against her husband in his capacity as tenant subject to satisfying two

conditions: first, that the tenant has given up the contest or is not interested

I n contesting the suit and such giving up by the tenant-husband shall

prejudice the deserted wife who is residing in the premises; and secondly,

the scope and ambit of the contest or defence by the wife would not be on a

footing higher or larger than that of the tenant himself. In other words, such

a wife would be entitled to raise all such pleas and claim trial thereon, as

would have been available to the tenant himself and no more. So long as

by availing the benefit of the provisions of the Transfer of Property Act and

rent control legislation, the tenant would have been entitled to stay in the

tenancy premises, the wife too can continue to stay exercising her right to

residence as a part of right to maintenance subject to compliance with all

such obligations including the payment of rent to which the tenant is subject.

This right comes to an end with the wife losing her status as wife

consequent upon decree of divorce and the right to occupy the house as

part of right to maintenance coming to an end.

33. We are also of the opinion that a deserted wife in occupation of the

tenanted premises cannot be placed in a position worse than that of a sub-

tenant contesting a claim for eviction on the ground of sub-letting. Having

been deserted by the tenant-husband, she cannot be deprived of the roof

over her head where the tenant has conveniently left her to face the peril of

eviction attributable to default or neglect of himself. We are inclined to hold

\026 and we do so \026 that a deserted wife continuing in occupation of the

premises obtained on lease by her husband, and which was their

matrimonial home, occupies a position akin to that of an heir of the tenant-

husband if the right to residence of such wife has not come to an end. The

tenant having lost interest in protecting his tenancy rights as available to him

under the law, the same right would devolve upon and inhere in the wife so

long as she continues in occupation of the premises. Her rights and

obligations shall not be higher or larger than those of the tenant himself. A

suitable amendment in the legislation is called for to that effect. And, so

long as that is not done, we, responding to the demands of social and

gender justice, need to mould the relief and do complete justice by

exercising our jurisdiction under Article 142 of the Constitution. We hasten

to add that the purpose of our holding as above is to give the wife's right to

residence a meaningful efficacy as dictated by the needs of the times; we

do not intend nor do we propose the landlord's right to eviction against his

tenant be subordinated to the wife's right to residence enforceable against

her husband. Let both the rights coexist so long as they can.

34. We have dealt with all the abovesaid aspects of the law as it was urged

on behalf of the landlord, Respondent 1 that Smt Achala, the appellant has

no right to contest or defend herself in these proceedings nor a right to file

and prosecute this appeal as there is no privity of contract between the

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appellant and landlord and the appellant is neither a tenant nor so

recognised ever by Respondent 1 landlord. We cannot agree. We feel that

the appellant was rightly \026 in the facts and circumstances of the case \026

permitted by the High Court to be joined as a party to the proceedings. She

was also rightly allowed to contest the suit and deposit the rent in the court

for payment to the landlord for and on behalf of the tenant-husband.

35. So far as a deserted wife, whose status as wife has not come to an end

by a decree of divorce or by decree for annulment of marriage, is

concerned, we have made the position of law clear as above. However, the

case of a divorced wife stands on a little different footing. Divorce is

termination of matrimonial relationship and brings to an end the status of

wife as such. Whether or not she has the right of residence in the

matrimonial home, would depend on the terms and conditions in which the

decree of divorce has been granted and provision for maintenance

(including residence) has been made. In the event of the provision for

residence of a divorced wife having been made by the husband in the

matrimonial home situated in the tenanted premises, such divorced wife too

would be entitled to defend, in the eviction proceedings, the tenancy rights

and rights of occupation thereunder in the same manner in which the

tenant-husband could have done and certainly not higher or larger than that.

She would be liable to be evicted in the same manner in which her husband

as tenant would have been liable to be evicted."

The case on hand is a case of divorced wife. It is true that divorced wife is also

a wife. We have already dealt with the case of the appellant and her right to contest or

defend herself in the pending eviction proceedings. We have already held that she has

no right to contest or defend herself nor a right to file and prosecute the eviction

proceedings. There is no privity of contract between the appellant and the landlady.

The tenancy is in favour of the appellant's husband. The Family Court has granted a

decree for divorce on payment of certain sum by way of maintenance. As a matter of

fact, the appellant's husband, the tenant is contesting the Rent Control proceedings

and has filed a written statement denying the claim of the landlady. It was argued by

Ms. Kamini Jaiswal on behalf of the appellant that the appellant was recognised by the

landlady as a sub-tenant. In support of the said submission, she placed reliance on the

letter written by the landlady to the appellant on 18.12.1989. This letter, in our opinion,

will be of any aid or assistance to the appellant. It has been stated in that letter that t

he

appellant has been paying the rent on behalf of one Duttas and occupying the said

accommodation. The appellant was requested to get a confirmation in writing that he

has no interest in the ground floor accommodation of the house in question and

surrender the possession of the same to the landlady so that the agreement could be

entered into with the appellant on fresh terms if the appellant proposed to continue to

stay there. The letter was concluded by saying that until these formalities are

completed the occupation of the ground floor accommodation by the appellant is

unauthorised and illegal.

We, therefore, cannot agree with the submission of learned counsel for the

appellant that the landlady has so recognized the appellant as sub-tenant. In para 35

above, this Court deals with the case of a divorced wife. We have already extracted

para 35.

For the foregoing discussion, we are of the opinion that the Court has no

jurisdictional power to add a person as a party who is neither a necessary party nor a

proper party. The appellant in the status of divorcee cannot claim interest in the suit

premises either independently or through her erstwhile husband and as such she

cannot be held to say that she is a party without whose presence the court cannot

adjudicate and pass the decree. She is, therefore, not a necessary party. The

appellant is also not a person whose presence is necessary to enable the Court

effectually and completely to adjudicate all the questions involved with the suit.

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In view of the discussion made above, we find merit and substance in the

submission made by counsel for the respondents. We are of the opinion that the trial

Court and the High Court did not commit any jurisdictional error nor acted with material

irregularity in dismissing the application under Order 1 Rule 10 C.P.C. filed by the

appellant.

The impugned orders, therefore, does not call for any interference. The present

appeal is dismissed without any order as to costs.