Allahabad High Court
Sheel Chand Jain vs Arun Kumar Tadaiy And Others on 2 January, 2014
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - A No. - 31995 of 2007 Petitioner :- Sheel Chand Jain Respondent :- Arun Kumar Tadaiy And Others Counsel for Petitioner :- Pankaj Agarwal Counsel for Respondent :- S.P. Tiwari,K.P. Tiwari,S.C.,Sanjiv Kumar,V.S.Kushwaha Hon'ble Sudhir Agarwal,J.
1. Heard Sri Pankaj Agawal, learned counsel for the petitioner and Sri Sanjiv Kumar, learned counsel for the respondent no.1.
2. The writ petition is directed against order dated 30.11.2000 passed by Prescribed Authority releasing accommodation in question in favour of respondent no.1-landlord by allowing application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") and order dated 25.05.2007 dismissing petitioner's appeal.
3. The dispute relates to House No.25, Civil Lines, Lalitpur wherein part of premises is under tenancy of petitioner. The respondents are co-owners of house in dispute. Release application, however, was preferred by respondent no.1, Arun Kumar Tadaiya impleading co-owners as defendant no.2 to 9 in his application registered as P.A. Case No.9 of 1992 before Prescribed Authority/Civil Judge, Senior Division, Lalitpur. The ground set up is that accommodation is needed for residence and advocate's chamber of his son Anurag and Anupam. It was also pleaded that defendant no.1 i.e. present petitioner-tenant already had another residential accommodation i.e. house no.800 constructed at Aajadpura, Lalitpur, in which tenant is residing along with family and therefore, the building should be released.
4. The Prescribed Authority accepted the claim set up by landlord on both the questions namely bona fide need and comparative hardship and vide judgment dated 30.11.2000, allowed release application and thereagainst petitioner's Rent Control Appeal No.7 of 2000 has been dismissed by District Judge, Lalitpur vide impugned judgment dated 25.5.2007.
5. It is contended that since only one of the co-landlords has come up for seeking release of accommodation in question and other landlords have not joined him, therefore, Courts below erred in law in allowing release application.
6. The submission is thoroughly misconceived. In the context of co-owner, it has been held that a suit filed by co-owner would not fail merely because other co-owners are not arrayed as party in the suit.
7. In Sri Ram Pasricha Vs. Jagannath and others, AIR 1976 SC 2335 a similar dispute came to be considered before a three Judge Bench of Apex Court. Relying on certain earlier decisions of Calcutta, Madras and Bombay High Courts, it was argued that one of the co-owner without impleading other co-owners cannot maintain a suit for eviction under Section 13(1)(f) of West Bengal Premises Tenancy Act, 1956. The argument in particular based on the decisions in Bollye Satee and Anr. Vs. Akrarn Ally and Ors. (1879) I.L.R. 4 Cal. 961; Kattusheri Pishareth Kanna Pisharody Vs. Vallotil Manakel Narayanan Somayajipad and Ors. (1878) I.L.R. 3 Mad. 234; Balakrishna Sakharam Vs. Mow Krishna Dabholkar (1897) I.L.R. 21 Bom. 154; and, Dwarka Nath Mitter and Ors. v. Tara Prosunna Roy and Ors. (1890) I.L.R. 17 Cal. 160. The Apex Court found none of the aforesaid decisions fortify the above submission. Rejecting the same, in para 11, the Court observed, that, relations between parties being that of landlord and tenant, only a landlord can terminate the tenancy and institute suit for eviction. The tenant in such a suit is estopped from questioning title of landlord by virtue of Section 116 of the Evidence Act. Under general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-impleading of other co-owners as such. Reliance placed on English authorities was also negatived by Apex Court observing that English principle is abhorrent to the Indian conception and structure of social life of our country with its benign sensitivity and ties, which is not based on pure individualism. Having said so, the Apex Court approved a passage on the concept of ownership from the celebrated authority of "Jurisprudence" of Salmond in para 24 of the judgment and said that jurisprudentially, it would not be correct to argue that a co-owner of a property is not its owner. In legal parlance, a co-owner owns every part of the composite property along with others (co-owners). It cannot be said that an individual co-owner is only a part owner or a fractional owner of the property. Such a situation may arise only when there is a partition between the co-owners by metes and bounds. In this background and legal perception, it cannot be said that plaintiff, admittedly a landlord and co-owner of premises, can be non-suited on the ground that other co-owners are not impleaded or that he is not the sole owner of premises.
8. The above decision came to be considered again in Kanta Goel Vs. B.P. Pathak and others, AIR 1977 SC 1599 by another three Judge Bench in the context of proceedings initiated for eviction of a tenant with reference to Sections 14-A(1) and 25-B of Delhi Rent Control Act, 1958. Here also, it was argued that other heirs of deceased landlord are necessary parties and without impleading them, eviction proceedings cannot continue. The Apex Court refers to definition of "landlord" and "tenant" under Section 2(e) and (l) of Delhi Rent Control Act and found that rent was paid to Sri B.P. Pathak, the first respondent, who initiated eviction proceedings and thus he satisfies the definition of landlord. It also observed that there is no doubt that appellant, Kanta Goel was tenant in premises. Having said so, the Court observed that in case of co-owners, if one person is dealing with tenant, it means that he together with other co-owners would constitute the body of landlords and by consent, implicit or otherwise, of the plurality of landlord, one of them representing them all, was/is collecting rent and for all practical purposes, he would be a landlord, entitling to institute proceedings qua landlord. Having said so, the Court also referred to and relied on its earlier decision in Sri Ram Pasricha (supra).
9. However, one aspect left open for consideration, was a situation where some of the co-owners want to continue the tenant contrary to relief claimed by one co-owner, instituting proceeding.
10. Both the above decisions have been considered and followed in Pal Singh Vs. Sunder Singh and others, AIR 1989 SC 758. The Court, however, explained the situation and said other co-owner when did not object to eviction, one co-owner can maintain an action for eviction, even in absence of other co-owners. This is evident from para 10 of the judgment where the Court said:
"This in our opinion falls within the ratio of Kama Goel v. B.P. Pathak (supra) where this Court clearly held that when the other co-owner did not object to the eviction one co-owner could maintain an action for eviction even in the absence of other co-owner. Here also Smt. Sham Kaur and her heirs did not object to the claim for eviction made by the respondents herein. In that view of the matter and in the circumstances of this case, we are of the opinion that the ratio of the said case will apply and this suit will be maintainable even in the absence of all the owners to the eviction proceedings."
10. The dictum in Sri Ram Pasricha (supra) was followed in Subhendu Prosad Roy Choudhury and others Vs. Kamala Bala Roy Choudhury and others, AIR 1978 SC 835 in the context of quit notice given by one co-owner (landlord) to tenant and the Court said:
"Even assuming that notice was not given on behalf of one of the co-owner landlords, the decision of this Court is Sri Ram Pasricha v. Jagannath and Ors. Would show that yet the notice was good and valid."
12. A Division Bench of this Court followed the above dictum in Rang Nath Vs. State of U.P., 1984 ARC 642 and the correctness of aforesaid decision was considered by Full Bench in Gopal Das and another Vs. Ist Additional District Judge, Varanasi and others, AIR 1987 All 261. The Full Bench approved dictum laid down in Rang Nath (supra) by observing in para 11 as under:
"11. In view of these decisions, there can, therefore, be little doubt as to the maintainability of the action for eviction brought by one co-owner without impleading the other co-owners. The view taken in Devi Charan's case 1980 UPLT NOC 143 cannot be said to have laid down the correct law and it is overruled. The view taken in Ranga Nath's case (1984 All LJ 455 is correct and we reiterate the same."
13. It is also worthy to notice that Rule 15(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the "Rules, 1972") provids, if there are more than one landlord, the application shall be signed by all the landlords. Construing the aforesaid provision in the context of co-owners, the Full Bench in para 16 of the judgment said, if this Rule is to be pressed in the case of co-owners, it shall be invalid since even one co-owner is competent to sign application and filed it. The relevant part of para 16 reads as under:
"However, we may point out that the requirement of Rule 15(2) that an application for release of premises owned by co-owners should be signed by all co-owners would be invalid. One co-owner is competent to maintain an action of eviction of the tenant of the entire premises, since he can be considered as a landlord within the meaning of Section 3(i) of the Act. One co-owner alone would be competent to sign such an application."
14. In other words when one comes to seek some relief, the law in presenti, is where the building has several co-owners, in absence of partition, even one co-owner can maintain proceedings for eviction of tenant(s) unless such eviction proceedings are objected to by other co-owners individually or collectively, as the case may be, expressing their intention to keep tenancy continue.
15. Counsel for the petitioner sought to rely a decision of this Court in Om Prakash Mittal Vs. Vth Addl. District Judge, Ghaziabad and others, 2001(1) ARC 111, but I do not find anything therein so as to help the petitioner in any manner in respect to the issue raised before this Court. No factual or otherwise error has been pointed out by learned counsel for the petitioner in respect to questions of bona fide of personal need and comparative hardship. The twin issues have been considered by lower courts while allowing application of respondent no.1-co-landlord of accommodation in question. In these facts and circumstances, I do not find any justification so as to interfere with the impugned judgments. The scope of judicial review under Article 226/227 is very limited and narrow as discussed in detail by this Court in Writ-A No. 11365 of 1998 (Jalil Ahmad Vs. 16th Addl. Distt. Judge, Kanpur Nagar and others) decided on 30.7.2012. There is nothing which may justify judicial review of order impugned in this writ petition in the light of exposition of law, as discussed in the above judgment.
16. In view of above, I do not find any reason to interfere.
17. Dismissed.
18. Interim order, if any, stands vacated.
Order Date :- 2.1.2014 KA