Punjab-Haryana High Court
Gyan Aggarwal vs Brij Bhushan Salwan on 6 March, 2019
103
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.11649 of 2018 (O&M)
Date of Decision : 06.03.2019
Gyan Aggarwal
.....Petitioner
Versus
Brij Bhushan Salwan
.....Respondent
CORAM : HON'BLE MR. JUSTICE SUDIP AHLUWALIA
Present : Mr. Parveen K. Kataria, Advocate
for the petitioner.
Mr. Ajaivir Singh, Advocate
for the respondent.
SUDIP AHLUWALIA, J. (ORAL)
This revision is directed against the judgment passed by the Ld. Appellate Authority, in RA No.11/2017 on 27.07.2018, vide which the original Eviction Order against the petitioner, passed by the Ld. Rent Controller, Jalandhar in its impugned judgment dated 23rd December, 2016, was affirmed.
2. The Eviction Application seeking ejectment of the petitioner from the demised premises under provisions of the East Punjab Urban Rent Restriction Act, had been allowed in favour of the respondent/landlord basically on two grounds viz that the 1 of 6 ::: Downloaded on - 10-03-2019 19:30:05 ::: CR No.11649 of 2018 (O&M) 2 petitioner/tenant ceased to occupy the demised property, and that the same was required bona fide by the respondent/landlord for his own use and occupation. The Rent Controller's decision on both these counts was sustained by the Appellate Authority.
3. The petitioner has however contended before this Court that in any event the Eviction Petition was non-maintainable from the very beginning inasmuch as his eviction was sought only by the respondent/landlord, without consent of his brother/ co-owner/landlord namely, Bharat Bhushan Salwan, along with a third brother namely Kulbhushan, who all had jointly inherited the premises after death of their father/original landlord-Pandit Manohar Lal Salwan.
4. It transpires that at one stage the aforesaid brother- Bharat Bhushan Salwan had even filed an application under Order I Rule 10 of the Code of Civil Procedure seeking to be impleaded as a party in the Eviction Proceedings, but the said application was dismissed by the Ld. Rent controller after objections from the respondent/landlord. Such order of dismissal was not challenged thereafter, and therefore attained finality.
5. However, the said Bharat Bhushan Salwan subsequently 2 of 6 ::: Downloaded on - 10-03-2019 19:30:05 ::: CR No.11649 of 2018 (O&M) 3 deposed as RW-2 from the side of the petitioner/tenant in the Ld. Trial Court and stated that he did not consent to the petitioner's eviction as sought for by the respondent/ landlord. It is noteworthy that specific issues regarding the Eviction Petition being non- maintainable, and being bad for non-joinder of necessary parties had been framed by the Ld. Rent Controller as Issues Nos.5 and 6, respectfully. But the same were decided in favour of the respondent/landlord.
6. The petitioner's contention is that in such circumstances the Judgment and Decree passed by both the Ld. Courts below are unsustainable since the Eviction Petition itself was non- maintainable once such plea in the backdrop of the fact that a co- owner/landlord of the petitioner/tenant had not been impleaded as a necessary party was raised.
7. Reliance has been placed on a decision of the Calcutta High Court in 'Williamson Magor & Company Limited vs. Mangal Builders & Enterprises Limited & Others' APOT 609 of 2014 in CS 198 of 2013, in which an Eviction Suit was ordered to be dismissed since the Eviction Notice prior to its filing had not been issued on behalf of the co-owners/landlords. The Special 3 of 6 ::: Downloaded on - 10-03-2019 19:30:05 ::: CR No.11649 of 2018 (O&M) 4 Leave Petition thereafter preferred by the landlords in the Supreme Court of India in SLP(C) No(s).9616-9617 of 2015 were thereafter dismissed by the Apex Court by holding inter alia that an earlier decision of the Patna High Court in "Sharffundin and Others vs. Bibi and Another" was not good law. The relevant observations of the Supreme Court in this regard are set out below :-
"The decision of Patna High Court in Sharfudding and Others vs. Bibi Khatija and Another has been cited by Shri C.A. Sundaram, learned senior counsel, to persuade the Court that the view expressed therein may serve as a foundation for laying down the law upholding the maintainability of a suit filed in a situation where a co-owner does not consent and, in fact, objects to the decree of eviction sought by the other co-owner. It is contended that such a view would be a reasonable and logical extension of the law laid down by this Court with regard to maintainability of suit filed by a co-owner, where no objection is raised by another co-owner.
Having read and considered the judgment of the full Bench of the Patna High Court in Sharfuddin (supra), we are unable to agree with the views expressed therein. The Patna High Court seems to have taken into account the power of veto which would be vested in a co-
owner if a suit for eviction to which he objects is held to be not maintainable. The issue with regard to partition which is an option open to the co-owners who seek eviction was sought to be answered by the High Court by holding the aforesaid remedy to be cumbersome. When 4 of 6 ::: Downloaded on - 10-03-2019 19:30:05 ::: CR No.11649 of 2018 (O&M) 5 the law provides a remedy which the aggrieved party can avail of, the same cannot, in our considered view, be ignored only on the ground that asking the parties to avail of the said remedy would be relegating them to another round of litigation.
For the aforesaid reasons, we are inclined to take the view that the decision rendered by the High Court in first appeal is correct. We, therefore, affirm the said decision and dismiss these petitions for special leave to appeal against the order of the High Court."
8. The facts of the present case are fully covered by the aforesaid decision. In this case also the eviction had been sought by the respondent/landlord, without the consent of co-owner/ landlord namely, Bharat Bhushan Salwan, even whose application for being impleaded as a party was opposed and got dismissed.
9. Ld. Counsel for the respondent after having sought time on some earlier dates to cite counter authorities against the pronouncement in Williamson Magor's case (supra), could however not place any precedent in which maintainability of an Eviction Proceeding/Suit against a tenant was upheld where a co- owner/landlord had explicitly represented that the eviction sought was against his consent.
10. In the given circumstances, the decisions of both the Courts below in holding the Eviction Petition to be maintainable 5 of 6 ::: Downloaded on - 10-03-2019 19:30:05 ::: CR No.11649 of 2018 (O&M) 6 when non-consenting landlord was not even allowed to be joined as a party, clearly render the judgments of eviction unsustainable, since the Eviction Proceedings themselves were bad for non- joinder of such co-owner/landlord as a necessary party.
11. The Revision Petition is therefore allowed after setting aside the impugned judgments.
March 06, 2019 (SUDIP AHLUWALIA)
Dpr JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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