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Mathura Dass Vs. Ram Piari - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2740 of 1980
Judge
Reported inAIR1982P& H286
ActsEast Punjab Rent Restriction Act, 1949 - Sections 2, 13 and 13(3); West Bengal Premises Tenancy Act, 1956 - Sections 13; Delhi Rent Control Act, 1958; Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10(8)
AppellantMathura Dass
RespondentRam Piari
Cases ReferredEhasan Bivi v. Nagalakshmi Ammal
Excerpt:
.....well-settled that one of the landlords of the demised premises can by himself make on application for ejectment without making the others landlords a party thereto. kuldip parkash, (1979) 1 rent lr 312, held that only one of the co-owners could not maintain an ejectment application without impleading the other co-owners as well and consequently reversed the findings on issue no. it bears repetition that i have also rested my view on the particular provisions of the present act as well......from any other considerations. 7. two binding precedents of the final court though under different rent acts are equally a pointer to the aforesaid view. in sri ram pasricha v. jagannath, air 1976 sc 2335, their lordships were considering the analogous provisions of s. 13 of the west bengal premises tenancy act of 1956. therein also an identical issue was raised that the application for ejectment having not been made by all the co-owners was, therefore, not competent. repelling such a contention their lordships concluded as follows (at p. 2339):-- 'jurisprudentially it is not correct to say that a co-owner of a property is not its owner. he owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the.....
Judgment:

S.S. Sandhawalia, C.J.

1. Can one of the co-landlords alone maintain an application for ejectment against his tenant under S. 13 of the East Punjab Rent Restriction Act, 1949, is the significant question which has been re-agitated in this reference to the Division Bench.

2. Mathura Dass petitioner who admittedly was one of the co-owners of the demised premises had preferred an ejectment application under S. 13 of the East Punjab Rent Restriction Act (hereinafter called the Act) before the Rent Controller at Fazilka. The primary ground on which it was sought to be pressed was the non-payment of rent by the tenant and that the premises were required for the personal occupation of the landlord. The ejectment application was resisted on behalf of the respondent-tenant and on the pleadings of the parties the following issues were framed :--

1. Whether the respondent is liable to ejectment on the grounds taken in the application?

2. Whether the application is bad on account of non-joinder of necessary parties?

3. Relief.

On issue No. 1 the Rent Controller came to the finding that the tenant was in arrears of rent but held that the petitioner had failed to establish that he needed the demised premises for his bona fide use and occupation. Issue No. 2 was decided in favour of the petitioner with the observations that it was well-settled that one of the landlords of the demised premises can by himself make on application for ejectment without making the others landlords a party thereto. In view of the finding on the two issues, the ejectment application was allowed with costs.

3. On appeal the finding on issue No. 1 was virtually not challenged and only that on issue No. 2 was assailed. The learned Appellate Authority relying primarily on the recent judgment in Bir Bhan v. Kuldip Parkash, (1979) 1 Rent LR 312, held that only one of the co-owners could not maintain an ejectment application without impleading the other co-owners as well and consequently reversed the findings on issue No. 2 and dismissed the ejectment application.

4. The present revision first came up before my learned brother Dhillon J. sitting singly. Noticing some conflict of precedent on the question whether one of the many co-landlords alone could maintain the ejectment application he referred the matter for decision by a larger Bench.

5. As would appear hereinafter there is no paucity of precedent both direct and by way of analogy on the point. Nevertheless it is refreshing to examine the matter on principle and on the particular language of the statute because this aspect does not seem to have been adequately considered in some of the judgment relied upon by the parties.

6. What first meets the eye herein is the definition of the word 'landlord' under Section 2(c) of the Act which is in the following terms:--

'2. In this Act, unless there is anything repugnant in the subject or context.-

(a) and (b)............................................

(c) ' landlord' means any person for the time being entitled to receive rent in respect of any building or rented land, whether on his own account or on behalf of for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes tenant who sublets any building or rented land in the manner hereinafter authorised, and, every person from time to time deriving title under a landlord :

(d) to (g).................................................'

It seems manifest from the above that the definition is a wide ranging one including within its sweep a number of persons. Particularly noticeable in the fact that the 'landlord' under the Act is not necessarily confined to the owner or the owners of the premises. Persons who may lay no claim of title to the property would nevertheless come within the wide amplitude of the definition. Equally patent it is that the statute herein been not necessarily visualise a single landlord but also plurality thereof. Once that is so one can now turn to S. 13(3)(a) of the Act which is in the following terms:--

'13(3)(a). A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-

(i) in the case of residential building if-

(a)........................

(b) he is not occupying another residential building in the urban area concerned; and

(c) he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area;

(d).........................'

A plain reading of the above would also indicate that the Act visualises the filing of an application by a landlord. This is of particular significance in the context that the definition of 'landlord' positively visualises a plurality thereof. The requirement of sub-section (3) above is not that the 'landlord' should move an application or 'all the landlords' should do so. It suffices if 'a, landlord' does so. It would thus appear that on the particular provision of the present Act an ejectment application by one of the many landlords would be maintainable, apart from any other considerations.

7. Two binding precedents of the final Court though under different Rent Acts are equally a pointer to the aforesaid view. In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, their Lordships were considering the analogous provisions of S. 13 of the West Bengal Premises Tenancy Act of 1956. Therein also an identical issue was raised that the application for ejectment having not been made by all the co-owners was, therefore, not competent. Repelling such a contention their Lordships concluded as follows (at p. 2339):--

'Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of S. 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.'

8. In Smt. Kanta Goel v. B. P. Pathak, AIR 1977 SC 1599, their lordships were construing the relevant provisions of the Delhi Rent Control Act 1958, which are virtually in pari materia with the East Punjab Urban Rent Restriction Act, 1949. Therein also the identical objection that one of the many co-owners could not maintain the eviction application was pointedly raised. Rejecting this contention and holding that the ratio in Sri Ram Pasricha's case (supra) was equally applicable under the context of the Delhi Act also, it was held that the absence of the other co-owners on record does not disentitle only one of the landlords from suing for eviction.

9. Though the matter would be plainly concluded by the aforesaid judgments even within this Court also there is now no room for discordance. Undoubtedly there was previously some conflict of opinion betwixt single Bench judgment of this Court which has been set at rest by the Division Bench in Ram Piari v. Dr. Kesho Ram, (1980) 2 Ren CR 137. In the said case the contrary view in Agya Ram v. Amrik Singh, C. R. No. 326 of 1965 decided on Mar. 10, 1966; Birbhan v. Kuldip Parkash. C. R. No. 1990 of 1978 decided on 25th Jan, 1979,* and Shiv Devi v. Firm Maharaj Parshad Piara Lal, C. R. No. 630 of 1964 decided on Apr. 30, 1965 was expressly overruled.

10. In fairness to Mr. Chopra the learned counsel for the respondent, we must notice his reliance on a single Bench Judgment of the Madras High Court in A. Alagiyanathan v. M. Swaminatha Pillai, (1980) 2 Rent LR 752. This judgment undoubtedly lends some support to the stand taken on behalf of the respondent. However, with the greatest respect we are unable to agree with the line of reasoning therein.The judgment of their Lordships in Sri Ram Pasricha's case (AIR 1976 SC 2335) (supra) though referred to was sought to be distinguished for what appears to us as inadequate reason. The later judgment of their Lordships on Smt. Kanta Goel's case (AIR 1977 SC 1599), however, seems to have missed notice altogether. With due deference, therefore, I would wish to record my dissent from the line of reasoning in A. Alagiyanathan v. M. Swaminatha Pillai (supra). Even otherwise it calls for notice that the relevant provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, which fell for consideration there, are certainly not in pari materia with those in the Act. It bears repetition that I have also rested my view on the particular provisions of the present Act as well.

11. It would appear that at touch of discordance within the Madras High Court itself is disclosed by the subsequent judgment in Ehasan Bivi v. Nagalakshmi Ammal, (1981) 1 Mad LJ 240. Therein it has been held that an eviction application by one of the co-owners was maintainable and the written consent envisaged by S. 10(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act, was not required.

12. To conclude, both on principle and precedent the answer to the question posed at the outset is rendered in the affirmative and it is held that even one of the many co-landlords can singly maintain an application for ejectment against his tenant under the Act.

13. Applying the above rule to the facts of the present case would make it plain that the petitioner is entitled to succeed. Both the Rent Controller and the Appellate Authority have taken the consistent view that the respondent was in arrears of rent and he had not tendered the same for payment to the applicant on the first date of the hearing and was, consequently, liable to be evicted. The appellate court had reversed the trial court, only on the basis of the single Bench judgment in Birbhan's case ((1981) 1Mad LJ 240) (supra), which, as has been noticed above, now stands already overruled. The finding of the appellate court on issue No. (2) has, therefore, to be reversed and as a necessary consequence the order of the appellate authority dismissed the application is set aside and that of the Rent Controller is hereby restored.

14. In view of the earlier conflict of precedent in this Court, there will be no order as to costs.

15. Petition allowed.


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