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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.