Bombay High Court
Rahimtulla Abdul Rahiman Nakib vs Chandrakant Anant Moog And Ors. on 10 August, 1981
Equivalent citations: AIR1982BOM282
ORDER
1. In this petition under Article 227 of the Constitution, a question of law has been raised, but I am relieved of entering into a detailed discussion of the same because that has been already. Decided by authorities which are binding upon me. The petitioner is the tenant of a room forming part of a building bearing C. T. S. No. 2167 situate at Kolhapur and the respondents father was the original owner of the said house. It is an admitted position that the respondents' father has died and the respendents are some _____________________________________________ DZ/DZ/B633/82/HR/RSK of the legal representatives of the original owner. If has been brought on record that apart from the five respondents, their father left behind him this widow and three daughters. The foundation of the agruments advanced in the two Courts below and repeated before me is this fact that it is not the five respondents alone who are the owners of the suit premises, but their mother and the three staters are also owners of the came.
2. Regular Civil Suit No. 438 orf 1973 was filed by the five respondents for possession of the suit premises on the ground, among other, that the patitioner was in arrears of rent for a period of more than six months and the has not complied with the requirements mentioned in Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as "the Bombay Rent Act" Both the Courts below have upheld the claim of the respondents and decreed the suit for possession. The trial Court passed the decree on 31st Jan., 1976, which has been confirmed by the Appeal Court in Civil Appeal No. 172 of 1976 its judgment and order dated 30th of June 1977. The petitioner has now approached this Court under Article 227 of the Constn.
3. Mr. Bandivadekar, the learned Advocate appearing in Support of the petition, has repeated the challenge as to the compelence of the respondents to file the suit when the other heirs of the original landlord have not been jointed either in giving the notice under Section 12(3) of the Bombay Rent Act of in the suit which was filed for possession. Mr. Bandivadekar has contended that the relience placed by the learned Assistant Judge on the judgment of this Court in Nishramal Chhogala v. N. B. Patel. (1963) 65 Bom LR 15, is wrond because subsequently this judgment has been distinguished by Bhasme J. In Mohan Sons Pvt Ltd. V. Sonoo Jamsetiji Mr. Bandivadekar has naturally relied upon the later judgment which apparently supports his contentionn that some only of the owners of a building cannot file a suit for possession under the provisions of the Bombay Rent Act.
4. Much water, however, has flown down the Ganges after the judgment of Bhasme J. Was given. In Kanta Goel v. B. P. Pathank, , a similar question arose and has been answered conclusively. In that case the suit premises had been leased to the tenant by one Pandi Saraswatidas who died in the year. 1972 leaving befund him the plaintiff, two other sons and it daughter as hir legal representatives. It was the plaintiff alone who filed the application or the suit before the Rent Collector under the provisions of the Delhi Rent Control Act, 1958. One of the contentions which was taken in the Court below as well as in the higher Courts was that the plaintiff alone could not file a suit for possession of the premises leased to the tenant and in order that the suit should be properly constituted all the legal representatives of the original owner or in other words all the owners of the buildings at the time of the institution of the suit must necessary join in the suit, This agrument was rejected by the Supreme Court, However, in Kanta Goel's case the other co-owners of the uit premises had been jointed as parties at the High Court stage. The contention which was raised on behalf of the tenant was summarised by the Supreme court in the following words (at. P. 1601);-
"The presence of the co-heirs at the High Court level was inconsequential, according to the appellant, and their absence at the trial state vitiated the order of the Controller."
After examining some other incidental questions which also arose, the Supreme Court proceeded to mention as follows;_ "Equally without force in our view is the plea that one co-lessor cannot sue for eviction even if the other co-leasors have no objection."
(Para 6)
5. Thereafter the Supreme Court proceeded to examine the definition of "landlord" contained in the Delhi Act, which Is part materia with the definition of "landlord" contained in the Bombay Rent Act, and after doing so the following law was laid down:- (Para 6) "The first respondent (the plaintiff) together with the ther respondents, constituted the body of landlords and, by consent, implicit or otherwise, one of then representing them all, was collection rent, In short, he functioned, for all practical purposes as the landlord and was therefore entitied to institute proceedings this landlord'"
6. Thereafter, referring to an earlier judgment of the Supreme Court in Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2395, the Supreme Court proceeded to hold as follows:-
"That case also was one for eviction under the rent control law of Bengal The law having been thus put beyond doubt. The contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction. Fails."
7. The judgment of the Supreme Court in Kanta Goel's case has been referred to and naturally followed by Kanade J. In Special Civil Application No. 2554 of 1975 decided on 2nd of July 1980. There is thus no alternative for me but to dismiss this petition whose main challenge is based on the judgment of Bhasme J. Referred to above.
8. Mr. Bandivadekar has referred me to the judgment of a Full Bench of the Gujarat High Court un Nanalal Girdharilal v. Gulamnabi Jamalbhai Motorwala, AIR Guj 131, which to a great extwnt supports the petitioner in the instant case. But in view of the judgment of the Supreme Court of Kanta Coel'd case it is not possible to hold that the question is any longer open to an argument of the type advanced by Mr. Bandivadekar. For the same reason I am left with no alternative but to reject the contention of Mr. Bandivadekar relating to the necessity of all the co-owners joining in a notice u/s. 12(2)(2) for similar reason as mentioned in Kanta Goel's case, can be issued by the Rent Controller or one of the co-heirs.
9. In the result, this petition must fail, Accordingly, rule is discharged with no order as to costs.
10. Mr. Bandivadekar requests for time to vacate the premises. The decree shall not be executed till 30th of Sept., 1981, provided that the petitioner files in this Court affidavit on or before 30th of Mar., 1981.
(I) giving an undertaking to the Court that he shall give vacant and peacheful possession of the suit __________________________________________ *Reported in 1981 Bom CR 271 premises to the respondent on or before 20th of Sep., 1981 and that in the meantime he shall not induce anyone to the sult permises in any capacity or otherwise part with the sult premises in any manner whatsoever: and
(ii) that he shall go no depositing the rent of the suit premises for every month by the end of that month.
11. Petition dismissed.