Daughter-in-law is merely a licensee in house owned by in-laws

Necessary party to suit - Sec. 2 (s) of Protection of Women from Domestic Violence Act - Scope of definition of Shared Houshold - House property is exclusively own by father-in-law - After marriage daughter-in-law started to live in that house with her husband - Daughter-in-law started harassing her in-laws - father-in-law asked his son to vacate the house - Son alongwith wife left the house - After sometime daughter-in-law came bake and forcibly entered in that house and refused to vacate the house - Father-in-law filed a suit for eviction against his daughter in law without impleading his son as defendant.

• Is the son necessary party to eviction suit filed against daughter-in-law?

• Does the property owned by in-laws; in which their son was permitted to live with his wife, falls under the definition of Shared Household as defined u/s.2(s) of PWDV Act?

Held:

In-laws can evict Daughter-in-law from their house without seeking decree of eviction against their son. House exclusively owned by in-laws is not Shared Houshold under PWDV Act. Daughter-in-law is merely a licensee.

   In view of the settled law it is needless to say that a necessary party is a person who ought to have joined as a party in whose absence no effective decree could be passed at all by the court. A proper party is a party who may not be a necessary party but would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit though he may not be a person in whose favour or against whom a decree is to be made. Thus, it is clear that it cannot be said that by operation of law a particular person or category is a necessary party, unless statutorily provided in this regard. A reference may be made in the judgment of Hon'ble Supreme Court in Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and others 2010 (7) SCC 417. Paragraphs 13, 14 and 15 whereof are quoted as under:-

"13 . The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

"10. (2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.

15. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance."[Para no.21]

 This may be looked from another angle also. Order 1 Rule 9 CPC provides for mis-joinder and non-joinder of parties. Up till 1977 when a proviso was added by Act 104 of 1976 vide Section 52 w.e.f. 1.2.1977, the Rule 9 provided that no suit shall be defeated by reason of mis-joinder or non-joinder of parties. It is only by the aforesaid amendment proviso was added to the effect that "Provided that nothing in this rule shall apply to non-joinder of necessary party." Thus, it is clear that in an original suit, unless statutorily provided, it is the discretion of the plaintiff to implead any person as party or who may be joined as defendants for that matter. It is only under the provision of Rule 10 (2) a discretion is exercised by the court either on application of either of the parties or suo moto if it deems fit that any party is a necessary or proper party to the suit. Requirements of holding a person as a necessary party are strict in nature and as already held by Hon'ble Supreme Court in the above quoted judgment, a necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. Thus, in a suit for eviction or injunction, it is the discretion of the plaintiff to choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. In some of the enactments it is provided that in a suit certain party or parties are necessary party. Even in those cases, generally speaking, it has been statutorily provided and the necessary party is usually either the State or any other statutory authority and not a private person. For example, Section 176 (i) of the UP Zamindari Abolition and Land Reforms Act, 1950 (Section 116 of the UP Revenue Code, 2006) provides that a bhumidhar may sue for division of his holding. Sub-section (2) provides that to every such suit the Goan Sabha concerned shall be made a party. As already discussed, plaintiff is the dominus litis in a suit between the private parties, however, it has been left on the discretion of the court under Order 1 Rule 10 (2) CPC that the court may strike out or add parties. Even this discretion is to be exercised judiciously and not merely on whims or on mere asking of a party. A satisfaction is to be recorded by the court that addition of a party is for effectual and complete adjudication of all the questions involved in the suit. Thus, in a suit for eviction or injunction it is the discretion of the plaintiff to choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.[Para No.24]

   Under the similar circumstances where son, husband of the defendant had left the house and started residing somewhere else, it was held by me in Richa Gaur versus Kamal Kishore Gaur 2020 (1) AWC 667 that the status of defendant being that of a licensee she had no right to reside in the house after cancellation of the license. In the facts and circumstances of the case it was also held that house in question cannot be treated a shared household. Reliance was placed on S.R. Batra (supra) and Vimlaben Ajitbhai Patel (supra), which have already been quoted above extensively.[Para No.35]

   Thus, for the discussion made hereinabove, the answer to the substantial question of law framed in the present case is in negative and is that even considering the definition of shared household as provided under Section 2 (s) of the Act, 2005, the appellant daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on the 1st floor of the suit property after marriage of the son of the plaintiff with the appellant.[Para No.41]

Allahabad High Court

Sujata Gandhi

Vs.

S.B. Gandhi

Decided on 12/06/2020