Andhra HC (Pre-Telangana)
P. Kanti And Others vs Boddu Paidanna @ Rambabu on 13 July, 1999
Equivalent citations: 1999(4)ALD318, 1999(4)ALT261
Author: V. Bhaskar Rao
Bench: V. Bhaskar Rao
ORDER
1. The judgment in RCA No.31/1988 on the file of Rent Control Appellate Authority-cum-senior Civil Judge, Vizianagaram, dated 26-9-1998 dismissing the appeal and confirming the eviction order dated 22-8-1988 passed by the learned Rent Controller-cum-Principal District Munsif, Vizianagaram, in RCC No.61/1980 is assailed in this CRP, by the legal representatives of the deceased-tenant.
2. The respondent-landlord filed the eviction petition against the original tenant mainly on two grounds viz., (1) bona fide requirement of the demised building for personal occupation; and (2) acts of waste and damage to the building. The petition is resisted by the original tenant, who died during the pendency of the petition, before the Rent Controller. In the counter filed on his behalf both the grounds are denied.
3. The parties went for trail with the above pleadings. While so, an Advocate-Commissioner was appointed to see and assess the acts of waste attributed to the tenant. The Commissioner submitted a report stating not only regarding certain damage, but also regarding a Sweat-Meat Shop being run by a third party and main hotel also being run by another party. Based on the above report, the ground of sub-lease has been taken. The learned Rent Controller allowed the eviction petition holding that the landlord has established by convincing . evidence that (1) the tenant has sub-let the premises; (2) committed acts of waste in respect of petition 'A' and 'B' schedule properties and (3) he bona fidely requires the building for his personal use. The eviction order has been challenged before the appellate authority in RCA No.31 of 1988. Additional evidence was adduced before the appellate Court. Exs.A1 to A8 and Exs.Bl to B7 are marked for either party. The learned appellate Judge upon re-assessment of the evidence, dismissed the appeal confirming the eviction order dated 22-8-1988 and granted three months time from the date of judgment to the tenants to vacate the petition schedule premises. However, the appellate authority found that the bona fide requirement of the landlord is not established.
4. The short question that arises for consideration is whether the eviction order passed by the Rent Controller as confirmed by the appellate authority is sustainable.
5. Sri Vedula Venkata Ramana, learned Counsel for the petitioners contended that the landlord is only a co-owner having 10% undivided share and he cannot maintain an eviction petition without impleading the other co-owners. He relied on the judgments in S. Sarvaiah v. Prabhavathi, and Y. Sai Baba v. M/s. Rawalmal Narayandas and another, . He further contended that the sub-lease by the tenant in favour of Jagadeswar Rao is not made out satisfactorily as he was only managing the hotel on behalf of original tenant Naryana and there is no evidence of parting of exclusive possession to the subtenant. He pointed out that all the documents disclose that P.K. Prasad s/o. Narayana (original tenant) was conducting the hotel business. As regards the damage he contended that neither the tenant intended . to cause any damage nor its impairment of utility is established. Thus, he argued that CRP may be allowed and the eviction petition may be dismissed.
6. On the other hand Sri Venkateswar Rao Gudapati learned Counsel for the landlord contended that the concurrent findings of two Courts below regarding the damage and sub-lease are very well sustainable and hence there is no merit in the CRP. As regards the maintainability he argued that the position obtaining as on the date of filing is that the landlord was the sole owner. Subsequently there has been a compromise between himself and his wife and adopted son. In any case he argued that there is no conflict of interest among the co-owners and hence there is no need to implead them. In this context he pointed out that the appeal was preferred by the tenants and hence they ought to have impleaded the other co-owners if there was any clash of interest among them and there was no need for the landlord who was only a respondent in appellate Court to implead any party. He relied on a judgment of the Supreme Court in Smt. Kanta Goel v. B.F. Pathak, .
7. I carefully considered the above contentions and purused the evidence on record as well as the case law cited by both the learned Counsel. First and foremost, the concurrent findings are that the tenant committed sizeable damage to the property.
Whether it has resulted in impairment of utility of the building or not is a matter of opinion. The landlord asserts that the damage has caused impairment of utility. Likewise the finding of sub-letting of both the Courts below is based on sufficient oral and documentary evidence. Not only the Commissioner found sub-tenant running the hotel, but the documents Exs.A6 to A8 lend support. Above all, it is not in dispute that the tenant had shifted himself to his native place in Kerala long back and hence the only reasonable inference that could have been reached was that he had sub-let the building to Jagadeshwar Rao. If the version of the tenant that Jagadeshwar Rao was his employee and he was only managing the hotel on his behalf is true, nothing prevented the tenant from examining Jagadeshwar Rao and substantiate that version. I have, therefore, no hesitation to hold that the landlord is able to make out (1) damage to the property and (2) subletting.
8. The other contention of Sri Venkata Ramana is that a co-owner cannot succeed without impleading the other co-owners. On facts there does not appear to be any dispute regarding the settlement reached between the landlord on one hand and his wife and adopted son on the other. Documentary evidence has been permitted to be adduced before the appellate authority in proof of the said compromise. A compromise is filed in OS No.53 of 1990 on the file of Sub-Court, Vizianagaiam.
9. Be that as it may, the question is whether an eviction petition by a co-owner without impleading the other co-owners is maintainable. In the judgment Y. Sai Baba v. M/s. Rawalmal Narayandas and another cited (supra) which is a converse case where one co-owner filed eviction petition against the tenant and he impleaded the other co-owner, the objection of the tenant was that the petition was not maintainable. In that case the relations between the landlord and his step mother, who is the co-owner were not cordial and hence she has chosen to collect her half share of the rent from the tenant directly leaving the balance of half share of the landlord. In those circumstances the landlord impleaded his step-mother too as one of the respondents. It was held that joinder of co-owner is proper. A judgment of the Division Bench Damodaram Chetti v. Vungarala Rukmaniamma, 1967 (2) An. WR 200, has been referred to in the above case. It is noteworthy that the Division Bench held that one of the joint owners or co-owners can ask for eviction of a tenant who has been let in by both the owners notwithstanding that the other co-owner or co-owners are not willing to join the plaintiff or the petitioner in asking for eviction and on the other hand do not want the tenant to be evicted. In such a situation, the Division Bench held that it is necessary to implead all the co-owners. In the case on hand the other co-owners were not in the picture on the date of the eviction petition. Subsequently some disputes arose and a suit OS No.53 of 1990 was filed and a compromise was effected. In that compromise the landlord got 10% of undivided share while the remaining co-owners got 90%. A preliminary decree was passed. There is no material to show that those two co-owners do not want the tenant to be evicted. In other words, there does not appear to be any clash of interest among the co-owners.
10. In the judgment S. Sarvaiah v. Prabhavathi cited (supra), relying on the same judgment of the Division Bench Damodaram Chetti v. Vungarala Rukmaniamma (supra), this Court held that eviction petition by a co-sharer without impleading other co-sharers and without the written consent of all the co-sharers is not maintainable. In the judgment Smt. Kanta Goel v. B.P. Pathak cited (supra), it is held :
"Where a landlord who had let out his premises to a tenant, dies and his heirs succeed to his estate, one co-heir to whom the rent is being paid by the tenant and who receives it on behalf of the estate, would be landlord for the purposes of the Act. The Co-heirs constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, he functioned, for all practical purposes as the landlord, and was therefore entitled to institute proceedings for eviction against the tenant qua landlord."
It is noteworthy that the Supreme Court held that the consent of the other co-owners can be implicit or otherwise. In my view the consent of wife and adopted son can be said to be implicit as there does not appear to be any clash of interest among them. Viewing from that angle, I am satisfied that the eviction petition is maintainable by one co-owner.
11. For all the reasons given above, I do not find any merit in this CRP and it is accordingly dismissed, but without costs. The tenant is directed to vacate the demised premises within two months from today and hand over vacant possession to the landlord.