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Md. Abdul Razack and anr. Vs. Saleemunnisa Sahaba - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1740 of 1970 and Civil Misc. Petn. 2683 of 1971
Judge
Reported inAIR1972AP375
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 2 and 10
AppellantMd. Abdul Razack and anr.
RespondentSaleemunnisa Sahaba
Appellant AdvocateM. Jagannadha Rao, Adv.
Respondent AdvocateG. Radhakrishna Rao, Adv.
Excerpt:
tenancy - default in payment - sections 2 and 10 of andhra pradesh buildings (lease, rent and eviction) control act, 1960 - petition for eviction - tenant contended that landlord and his wife were co-owners - landlord without joining co-owner not entitled to file petition - tenant admitted that he was paying entire rent to landlord - another co-owner had not joined him in filing petition did not take away his right to file eviction petition - held, person receiving or entitled to receive rent was entitled to file petition for eviction. - - 5. in this view of the matter when both the courts below have concurrently held that the tenant has committed wilful default in payment of rent, which finding does not call for any interference, this revision petition must fail......person and himself and was a 'landlord' within the meaning of the andhra pradesh buildings (lease. rent and eviction) control act, 1960 (hereinafter referred to as 'the act;). therefore that decision cannot in any way affect the view i am taking in this case.4. the respondent's claim that he alone was entitled to receive the entire rent is not challenged. even according to the tenant, he was paying the entire rent only to the present respondent; but he wants the courts to believe that the whole of the rent for the entire premises was being paid to the respondent in view of affection and regard he was having for the respondent who is no other than his mother-in-law and not on account of any agreement between them. the claim that he was paying that rent out of affection and regard cannot.....
Judgment:
ORDER

1. A petition for eviction was filed by the respondent herein on the allegation that the revision petitioner, who is admittedly a tenant, had committed wilful default in payment of rents. The tenant pleaded that the respondent was not the sole landlord but that he had only 1/8th share and that his wife had 1/8th share in the premises and therefore he was not entitled to file a petition for eviction without joining the other co-owners. That contention was repelled by both the Courts and eviction was ordered.

2. In this revision petition, Mr. Trivikrama Rao, learned counsel for the tenant having regard to a decision of this Court in Damodaram Chetti v. Rukmani Amma, 1967-2 Andh Pra WR 200 contends that without joining the other co-owners, one of the co-owners is not entitled to maintain a petition for eviction of a tenant. In particular he relies upon the following observations of the Bench:

'We have no hesitation in holding 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 seeking for eviction and on the other hand, do not want a tenant to be evicted, provided such co-owner or co-owners, are made parties to the suit or petition.'

3. Reliance is placed on the proviso added to the principle laid down in that decision viz., 'that the co-owners are made parties to such a petition.' It may be stated at the outset that in that decision the main question that was posed for their Lordships' consideration was whether one of the co-owners could file a petition when the other co-owners opposed the petition for eviction. The question was not whether one of the co-owners alone could file a petition without joining the other co-owners, for in that case the other co-owners were on record. So the question whether a petition be only one of the several co-owners is maintainable was not at all in issue. An objection to the maintainability of the petition was raised on the ground that a single co-owner cannot maintain a petition without the concurrence of the other co-owners. That contention was negatived. It is also significant to note that in that case, the co-owner that was made a party to the petition had opposed the eviction. Notwithstanding that fact the petition was held maintainable. Further, that was not a case in which one of the co-owners was receiving or was entitled to receive rent on behalf of another person and himself and was a 'landlord' within the meaning of the Andhra Pradesh Buildings (Lease. Rent and Eviction) Control Act, 1960 (hereinafter referred to as 'the Act;). Therefore that decision cannot in any way affect the view I am taking in this case.

4. The respondent's claim that he alone was entitled to receive the entire rent is not challenged. Even according to the tenant, he was paying the entire rent only to the present respondent; but he wants the Courts to believe that the whole of the rent for the entire premises was being paid to the respondent in view of affection and regard he was having for the respondent who is no other than his mother-in-law and not on account of any agreement between them. The claim that he was paying that rent out of affection and regard cannot be accepted for rent would be payable under an agreement and not out of affection. What all is required to entitle a person to file a petition for eviction under the Andhra Pradesh Buildings (Lease. Rent and Eviction) Control Act, 1960 is that he should be receiving or must be entitled to receive the rent of a building. On the petitioner's own admission he was paying the rent payable for the whole of the building only to the respondent and the respondent was receiving the same. The respondent would therefore be 'landlord' within the meaning of Cl. (6) of Section 2 of the Act and that clothes him with the right to file a petition for eviction under the 'Act', without joining any other person who may be a co-owner of the building. The fact that he is only one of the co-owners of the building and that there is another co-owner who has not joined him in filing the petition does not take away his right to file a petition for eviction under the Act, especially when there is nothing on record to show that the other co-owner is opposed to the filing of such a petition.

5. In this view of the matter when both the Courts below have concurrently held that the tenant has committed wilful default in payment of rent, which finding does not call for any interference, this revision petition must fail. It is accordingly dismissed with costs. Time for putting the landlord in possession is sixty days from today.

C.M.P. No. 2628 of 1971:

6. This is a petition to receive and admit the document as additional evidence having regard to the fact that this question was raised even in the lower Court Reception of this additional evidence is opposed, but having regard to the view I have taken on the main question arising in the revision petition which is in favour of the respondent. I do not deem it necessary to allow any further time to file a counter-affidavit. The petition is allowed accordingly.

8. Order accordingly.


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