Ramsukh S/O Mishrilal Jadiya and ors. Vs. Smt.Hangamabai Wd/O Jawaharmal JaIn and ors. - Court Judgment

1. Rule, with the consent of the parties, made returnable forthwith and heard.

2. The above petition takes exception to the order dated 23/12/2010 passed by the learned 4th District Judge, Amravati, by which order the application filed by the respondent no.2 being Exh.46 for dismissal of the Appeal, as being abated, came to be allowed and the Appeal filed by the petitioners came to be dismissed as being abated.

3. The facts necessary to be cited for adjudication of the above petition can be stated thus - The petitioners herein are the heirs of one Ramsukh Mishrilal Jadiya, who was the original plaintiff along with one Sau.Sitabai and Sau.Kamalabai, who were his sisters and who had filed Small Cause Civil Suit No.189 of 2002 for ejectment and possession against the respondents under Section 16(1)(g) and (i) of the Maharashtra Rent Control Act, 1999 in respect of the ground floor shop. The said plaintiffs had succeeded to the said shop in question and other properties upon the death of one Kesharbai and that they became co-owners/joint owners of the suit property. In the said suit the respondents filed their written statement opposing the suit. The parties led evidence in support of their respective cases. The Trial Court on the consideration of the material on record dismissed the suit by its judgment and order dated 30/12/2003.

4. Aggrieved by the said judgment and order dated 30/12/2003 the plaintiffs filed an Appeal being Reg.Civil Appeal No.46 of 2004 on 17/2/2004. The original plaintiff Ramsukh died during the pendency of the Appeal and resultantly the petitioners herein, who are his legal representatives, were brought on record. Thereafter, the original plaintiffs no.2 and 3 i.e. Sau.Sitabai and Sau.Kamalabai, who were the sisters of Ramsukh, also expired, leaving behind their legal representatives. However, during the life time the plaintiffs no.2 and 3 i.e. Sau.Sitabai and Sau.Kamalabai had relinquished their shares in the suit property which fact was confirmed by their heirs, by addressing letters to the present petitioners. The petitioners in view of the said relinquishment had moved an application, Exh.44 on 30/9/2009 before the First Appellate Court for deleting the names of the original plaintiff nos. 2 and 3, who were the appellants no.2 and 3 in the Appeal, from the array of the appellants. In support of the said application, Exh.44, the plaintiffs had relied upon the said letters accepting relinquishment issued by the heirs of the appellants no.2 and 3, which were accordingly filed on record. The learned Judge of the First Appellate Court after hearing the parties was pleased to allow Exh.44 and whilst allowing the said application observed that the consequences of the said deletion would be considered at a later stage.

5. The respondents herein filed an application, Exh.46 for wp1933.11.odt 5 dismissal of the Appeal as having been abated as a whole in view of the fact that the appellant no.2 and 3, who were the joint owners of the property, were deleted by the heirs of the plaintiff no.1 from the array of appellants.

6. The appellants i.e. the petitioners herein filed their reply opposing the application, Exh.46 filed by the respondents herein.

7. The learned Judge of the First Appellate Court ordered that the application, Exh.46 would be decided along with the Appeal. When the Appeal was taken up for hearing, the learned Judge of the First Appellate Court directed the parties to argue the point of abatement first and after hearing the parties, the learned judge of the First Appellate Court was pleased to dismiss the entire Appeal as having abated on account of the fact that the heirs of the appellant nos.2 and 3 were not on record and since the appellant nos.2 and 3 were the joint co-owners of the property, the Appeal as a whole had abated. The learned Judge relied upon the judgments of this court as well as the Apex Court, which are referred to in the impugned order, to come to a conclusion that in a suit between the landlord and owners all the co-owners must be joined and that when there is an abatement against one party, the court cannot proceed but the whole Appeal will stand abated. As indicated above, it is the said order dated 23/12/2010 which is impugned in the present petition.

8. Heard the learned counsel for the parties.

9. The learned counsel for the petitioners would contend that in view of the relinquishment of their right in the property by the appellant nos.2 and 3, which fact has also been accepted by the heirs of the said appellants, which is evidenced by the letters addressed by them to the petitioners, the petitioners were entitled to prosecute the said Appeal. The learned counsel would contend that it is well settled that a co-owner is entitled to maintain a suit against a tenant for his eviction and for the said purpose relied upon the judgments of the Supreme Court reported in 2002 SC 2572(1) in the matter of Dhannalal ..vs.. Kalawatibai and others wherein it has been held that "one of the co-owners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintenability of the suit on the ground that other co-owners were not joined as parties to the suit". Para nos.16 and 17 of the said Judgment are material and reproduced herein under -

16. It is well settled by at least three decisions of this Court, namely, Shri Ram Pasricha v. Jagannath and others - (1976)4 SCC 184, Kanta Goel v. B.P.Pathan and others - (1977)2 SCC 814 and Pal Singh V. Sunder Singh (dead) by wp1933.11.odt 7 Lrs. and others - (1989)1 SCC 444 that one of the co-owners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other co-owners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every co-owners owns every part and every bit of the joint property along with other and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other co-owners if such other co-owners do not object. In Shri Ram Pasricha's case (supra) reliance was placed by the tenant on the English rule that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail, the requirement must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectively dissented from the rule of English law. This Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being "if he is the owner", the expression as employed by Section 13(1)(f) of W.B. Premises Tenancy Act, 1956.

17. It follows that a widow, who is a co-owner and landlady of the premises can in her own right initiate wp1933.11.odt 8 proceedings for eviction under Section 23-A(b), as analysed hereinbefore, without joining other co-owners/co-landlords as party to the proceedings if they do not object to the initiation of proceedings by such landlady, because she is the owner of the property and requires the tenanted accommodation for the purpose of continuing or starting the business of any of her major sons. The major sons though co-owners/co-landlords may not have been joined as party to the proceedings but it would not adversely affect the maintainability of the proceedings. It would also not make any difference if they are also joined as party to the proceedings. Their presence in the proceedings is suggestive of their concurrence with the widow landlady maintaining the proceedings in her own right. The presence of such co-landlords, as co-plaintiffs or co- applicants, as are not classified landlords as defined in Section 23-J of the Act does not alter the nature of claim preferred by the widow landlady and therefore does not take the proceedings out of the scope of Section 23-A(b). Conversely, the major sons or any of them suing alone without joining a widow co-landlord as party to other proceedings may institute a suit before a Civil Court under Section 12 of the Act pleading that the non-residential premises were required bona fide by them or any of them for the purpose of continuing or starting their own or his own business as they would be owners thereof and the requirement will theirs. It would not make any material difference if the widow co-landlord was joined as party to the proceedings either as plaintiff or as co-applicant because the case pleaded in the plaint would squarely fall within the ambit of clause (f) sub-section (1) of Section 12 of the Act.

10. The next judgment relied upon by the learned counsel for the petitioner is the judgment reported in (2006)2 SCC 724 in the matter of Mohinder Prasad Jain ..vs.. Manohar Lal Jain, wherein the Apex Court has held that it is not necessary for the co-owner to show before initiating the eviction proceedings before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event a co-owner objects thereto, the same may be a relevant fact. Para no.11 of the said Judgment is material and reproduced herein under -

11. A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co-owner to show before initiating the eviction proceedings before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event a co- owner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein. The submission of the learned counsel for the appellant to the effect that before initiating the proceedings, the respondent was required to show that he had experience in running the business in Ayurvedic medicines, has to be stated to be rejected. There is no law which provides for such a precondition. It may be so where a licence is required for running a business, a statute may wp1933.11.odt 10 prescribe certain qualifications or preconditions without fulfillment whereof the landlord may not be able to start a business, but for running a wholesale business in Ayurvedic medicines, no qualification is prescribed. Experience in the business is not a precondition under any statute. Even no experience therefor may be necessary. If the respondent has proved his bona fide requirement to evict the appellant herein for his own purpose, this Court may not, unless an appropriate case is made out, disturb the finding of fact arrived at by the Appellate Authority and affirmed by the High Court.

11. The learned counsel for the petitioners would further contend that it is not the case of the respondents herein that the other co-owners had an objection to the petitioners prosecuting the said Appeal. At least, no material is placed on record by the respondents in that regard. If that be so, the learned counsel for the petitioner would contend that the First Appellate Court has erred in disposing of the said Appeal as having abated.

12. Per contra, the learned counsel for the respondents herein Shri Anthony sought to contend that the appellants no.2 and 3 being joint owners, on their death their heirs not being brought on record, the same would be fatal to the prosecution of the said Appeal by the petitioners, as the interest of the appellants was joint and indivisible. wp1933.11.odt 11 The learned counsel for the respondents relied upon the judgment of a learned Single Judge of this court reported in [2005](2) Civil L.J.460 in the matter of Govind Laxman Jadhav ..vs.. Namdeo Balu Jadhav wherein it has been held that where the legal representatives of the deceased party is not brought on record, wherein the decree is joint and indivisible continuing of appeal by surviving appellants is incompetent, as it would give rise to inconsistent decrees. The learned counsel for the respondent also placed reliance on the judgment of a learned Single Judge of the Madhya Pradesh High Court reported in [1999(2) Civil L.J. 523 in the matter of Ram Prakash Indrasen Kohli ..vs.. Krishna Das Agrawal and anr. wherein also a joint and indivisible decree was appealed against and since one of the appellants died during the pendency of the Appeal and the application for condonation of delay for substitution of the said Appellant having been rejected, the learned Single Judge held that the appeal as a whole has abated.

13. Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions.

14. In the instant case, it is pertinent to note that the suit filed by original appellants, which included the appellants no.2 and 3, came to be dismissed by the judgment and order dated 30/12/2003 passed by the Trial Court. The said Judgment and Decree of the Trial Court was appealed against by the plaintiffs which included the plaintiff nos.2 and 3, who were the appellant nos.2 and 3 in the Appeal. The appellant nos. 2 and 3 died during the pendency of the Appeal. However, it is pertinent to note that the said appellant nos.2 and 3 in their life time had relinquished their shares in favour of the petitioners above named as it is the petitioners above named who are dealing with the property in question at Amravati and in fact the suit was filed for the benefit of the petitioners. It is further pertinent to note that the heirs have addressed letters to the petitioners confirming the relinquishment of their shares by said Sau.Sitabai and Sau.Kamalabai. All the said documents were annexed to the application, Exh.44 filed by the petitioners for deletion of the said appellant nos.2 and 3. On consideration of the said application, the First Appellate Court allowed the said deletion, though the consequences of the deletion were kept in abeyance by the First Appellate Court to be considered at a later stage. This is, therefore, a case where the appellants no.2 and 3 have been deleted on the ground that they have relinquished their shares in favour of the petitioners. There is no dispute raised by anybody as regards the said relinquishment. Even the respondents have not questioned the petitioners' case as regards the relinquishment of the shares by the Appellant nos.2 and 3. However, it is the case of the respondents that since the appellant nos.2 and 3 were joint owners, the suit has abated in view of the fact that their heirs have not been brought on record.

In the said context the judgment of the Apex Court in Mohinder Prasad Jain's case (supra), in my view, would be applicable. It is held in the said judgment, as can be seen from paragraph no.11 reproduced herein above, that the suit filed by the co-owner is maintainable in law and it is not necessary for the co-owner to show before initiating the eviction proceedings, before the Rent Controller, that he had taken option or consent of the other co-owners. It requires no debate that the Appeal is a continuation of the suit and what is, therefore, applicable to a suit would, as a corollary, be applicable to an Appeal. In the instant case, as mentioned herein above, there is no dispute about the relinquishment by the appellant nos.2 and 3 of their rights in the suit property.

In the said context the judgment of the Apex Court in Dhannalal's case (supra) is also relevant wherein the Apex Court has held that in a suit for ejectment filed by one of the co-owners, the tenant cannot take a defence to question the maintainability of the suit on the ground that other co-owners were not joined as parties to the suit.

15. In so far as the judgments cited on behalf of the respondents by the learned counsel Shri Anthony are concerned, the facts of the said cases disclose that the appellants thereafter had suffered decrees against which the appeals were filed, and since on account of the fact that the heirs of some of the appellants were not brought on record in the said cases, that the learned Single Judges had taken a view that in view of the fact that the decree has been partly confirmed against some of the appellants, the other appellants could not continue with the Appeal as it would lead to inconsistent decrees. However, the facts of the present case, as can be viewed from what has been stated herein above, stand on the different footing as the suit filed by the petitioners has been dismissed and the Appeal is being continued by the present petitioners in view of the relinquishment by the plaintiff nos.2 and 3/appellant nos.2 and 3. In that view of the matter, impugned order passed by the First Appellate Court that the Appeal has abated, in view of the fact that the heirs of the appellant nos.2 and 3 are not brought on record, is required to be quashed and set aside and the Appeal is required to be relegated back to the First Appellate Court for a consideration of the Appeal on merits. On remand, the First Appellate Court is directed to hear and decide the Appeal by 31/12/2011 in view of the time lag. Rule is accordingly made absolute with parties to bear their respective costs.