LexRUMA CHAKRABORTY versus SUDHA RANI BANERJEE AND ANR.
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RUMA CHAKRABORTY A v. SUDHA RANI BANERJEE AND ANR. OCTOBER 4, 2005 [DR. AR. LAKSHMANAN AND ALTAMAS KABIR, JJ.] B Code of Civil Procedure, 1908-0rder /, Rule 10(2)-Addition of defendants-Requirement of being either a necessary party or a proper party-- Eviction suit on ground of sub-letting-Landlady alleging that appellant, the C divorced wife of tenant, was in illegal occupation without prior written consent-Tenant not residing in the suit premises-But contesting the suit pleading that appellant was residing in the suit premises only as custodian of his minor children-Application filed by appellant for impleadment as a party defendant-Maintainability of-Held, not maintainable-There was no privity of contract between appellant and the landlady-Appellant had no locus standi D to be impleaded as a necessary or a proper party-Tenancy-West Bengal Premises Tenancy Act, 1956-Sections 2(d), 2(h) and /3(1)(a). Hindu Adoptions and Maintenance Act, 1956-Sections 3(b), 18 & 23- Hindu Marriage Act, 1955-Sections 25 and I 3B-Divorced wife-Entitlement to maintenance (including residence)-Terms and conditions of the divorce E decree'-E.ffect of-On facts, while dissolving marriage, Matrimonial Court with consent of the parties had ordered the husband to pay for maintenance of the minor children only-Held: Wife by such consent order expressly waived her right to maintenance. Respondent no.I-landlady filed eviction suit alleging that after F dissolution of marriage of the tenant (Respondent No.2), his divorced wife was reduced to the status of a rank outsider/stranger and that she was in illegal occupation of the suit premises without prior written consent of the landlady, hence became liable to eviction under S.13(l)(a) of the West Bengal Premises Tenancy Act, 1956. Respondent No.2 had effaced himself G from the suit premises long prior to the institution oi the suit. He contested the suit by filing written statement. He contended that the appellant was residing in the suit premises only as the custodian of his minor children who had every right to continue in possession of the suit premises as 1051 H 1052 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R. • , A members of his family. Appellant, the divorced wife of the tenant, filed application under Order 1, Rule 10(2) for being impleaded as a party defendant almost 8 years after institution of the suit. Trial Court dismissed the application. B High Court concurred with the decision of Trial Court. In appeal to this Court the question which arose for consideration is whether the appellant is directly interested in the tenanted suit premises by way of her entitlement towards maintenance which includes residence and had a right to be impleaded as a party defendant in the said eviction c suit as a necessary or a proper party. # Dismissing the appeal, the Court HELD: 1.1. The Trial Court and the High Court did not commit any jurisdictional error nor acted with material irregularity in dismissing the D application under Order l Rule 10 C.P.C. filed by the appellant. (1072-A-B( 1.2. 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 E 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 in the suit. (1071-F-G-HJ F 1.3. Respondent No.2. contested the eviction suit by filing written statement from which it is seen that he never allowed the appellant to occl!PY the suit premises and that she is in possession of the suit premises only as a custodian of the minor children of respondent no.2 and that the G monthly rents payable are being paid on account and on behalf of respondent no.2. 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 appellant 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 ~ H and the landlady. (1064-A-B;
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