CASE NO.: Appeal (civil) 3652 of 2002 Appeal (civil) 3653 of 2002 PETITIONER: DHANNALAL Vs. RESPONDENT: KALAWATIBAI & ORS. DATE OF JUDGMENT: 08/07/2000 BENCH: R.C. LAHOTI, B.N. AGRAWAL. JUDGMENT:
R.C. Lahoti, J.
Leave granted.
The suit premises in these two appeals are two shops situated in
M.T. Cloth Market, Indore on the ground-floor of a building. The
property was owned by late Krishnadas. He inducted the two
appellants in the two shops as tenants for non-residential purpose.
Krishnadas died on 8.7.1995. His ownership and right of reversion as
landlord have devolved on his widow – Smt. Kalawatibai and two sons
– Govinda and Hemant. These three are the respondents in these
appeals. They initiated the proceedings for eviction of the two
appellants in December 1995. The case of the respondents is that the
shop in the occupation of appellant Dhannalal is required bona fide
for starting the business of Govinda, the respondent no.2, while the
shop in the occupation of the other appellant, M/s Tulsidas
Sureshchandra is required by the respondent Hemant for shifting and
continuing his readymade garments business which he is presently
running in a rented accommodation situated in Gorakund locality, at a
little distance from the building in question. It is alleged that the
respondents do not own or possess any other accommodation of their
own suitable to satisfy their alleged requirement. These proceedings
for eviction were initiated under Chapter III-A of M.P.
Accommodation Control Act, 1961 (hereinafter the Act, for short) by
filing applications before the Rent Controlling Authority, Indore
(RCA, for short). The two appellants contested the claim preferred by
the respondents. However, the R.C.A. found the claims for
eviction proved and directed the two appellants to be evicted. Both
the appellants preferred revision petitions under Section 23-E of the
Act before the High Court. The High Court, having dealt with each of
the contentions raised on behalf of the revision petitioners, has
dismissed the revision petitions upholding the orders of the R.C.A.
Feeling aggrieved thereby these appeals have been filed by special
leave.
Two questions arise for decision in these appeals: firstly,
whether looking at the nature of requirement pleaded by the landlord-
respondents in their applications the forum of Rent Controlling
Authority was available to the respondents under Chapter III-A of the
Act or whether they were required to have recourse to the jurisdiction
of Civil Court by filing suits for eviction under Section 12 of the Act;
and secondly, whether the landlords have succeeded in making out
case of bona fide requirement of the suit premises within the meaning
of clause (b) of Section 23-A of the Act.
M.P. Accommodation Control Act, 1961 is a legislation
providing for regulation and control of letting and rent of
accommodations and generally to regulate the control of eviction of
tenants from accommodations and for other matters connected
therewith or incidental thereto. It also provides for expeditious trial of
eviction cases on ground of bona fide requirement of certain
categories of landlords. Section 12 of the Act, which opens with a
non-obstante clause, provides for no suit against a tenant for his
eviction from any accommodation being filed in any Civil Court
except on one or more of the grounds enumerated therein. Thus the
rights, obligations and protection of the tenants in the matter of
eviction from accommodations are governed principally by Section 12
of the Act and suit against tenant seeking eviction can be filed only in
Civil Court. The procedure applicable and the remedy of appeal and
revision are those as enumerated in the Code of Civil Procedure. The
M.P. Amendment Act No. 27 of 1983 w.e.f. 16.8.1983 inserted in the
Act Chapter III-A entitled “Eviction of tenants on grounds of
‘bonafide’ requirement” making provision for a special and summary
procedure for dealing with claims for eviction of tenants founded on
the ground of bona fide requirement for all the landlords generally.
Corresponding amendment was made in Section 12 of the Act so as to
do away with jurisdiction of Civil Court so far as claim for eviction on
the ground of bona fide requirement, residential or non-residential, is
concerned. Within a short range of time the Legislature gave a second
thought and in its wisdom considered it appropriate to not to extend
the benefit of the provisions contained in Chapter III-A to all
landlords generally but to keep it confined to such specified categories
of landlords who on account of certain handicap, adversity or a
peculiar position in which they are placed need to be dealt with on a
different pedestal and given advantage of a summary, quick and
expeditious remedy of seeking eviction on the ground of personal
requirement. Chapter III-A was hence amended by M.P. Act No. 7 of
1985 w.e.f. 16.1.1985. We are concerned with the provisions of
Chapter III-A as amended. Chapter III-A, as it stands now (since
16.1.1985), makes provision for proceedings for eviction of tenants,
on the ground of bonafide requirement for residential or non-
residential purpose, being initiated in the forum of Rent Controlling
Authority only by specified categories of landlords (and not by any
landlord generally).
Section 12 of the Act, placed in Chapter III dealing with control
of eviction of tenants, provides (by relevant part thereof) as under :
Sec.12. Restriction on eviction of tenants. (1)
Notwithstanding anything to the contrary
contained in any other law or contract, no suit shall
be filed in any Civil Court against a tenant for his
eviction from any accommodation except on one
or more of the following grounds only namely:-
xxx xxx xxx xxx
xxx xxx xxx xxx
(e) that the accommodation let for residential
purposes is required bona-fide by the
landlord for occupation as a residence for
himself or for any member of his family, if
he is the owner thereof or for any person for
whose benefit the accommodation is held
and that the landlord or such person has no
other reasonably suitably residential
accommodation of his own his occupation in
the city or town concerned;
(f) that the accommodation let for non-
residential purposes is required bona-fide by
the landlord for the purpose of continuing or
starting his business or that any of his major
sons or unmarried daughters if he is the
owner thereof or of any person for whose
benefit the accommodation is held and that
the landlord or such person has no other
reasonably suitably non-residential
accommodation of his own in his occupation
in the city or town concerned.
The abovesaid provision needs to be read in juxtaposition with
Section 23-A of the Act placed in Chapter III-A of the Act which
reads as under:
“23-A. Special provision for eviction of
tenant on ground of bona fide
requirement.___ Notwithstanding anything
contained in any other law for the time being in
force or contract to the contrary, a landlord
may submit an application, signed and verified
in a manner provided in rules 14 and 15 of
Order VI of the First Schedule to the Code of
Civil Procedure, 1908 (V of 1908) as if it were
a plaint to the Rent Controlling Authority on
one or more of the following grounds for an
order directing the tenant to put the landlord in
possession of the accommodation, namely:-
(a) that the accommodation let for
residential purposes is required “bona
fide” by the landlord for occupation
as residence for himself or for any
member of his family, or for any
person for whose benefit, the
accommodation is held and that the
landlord or such person has no other
reasonably suitable residential
accommodation of his own in his
occupation in the city or town
concerned.”
Explanation.For the purposes of this clause,
“accommodation let for residential purposes”
includes
(i) any accommodation which having been
let for use as a residence is without the
express consent of the landlord, used
wholly or partly for any non-residential
purpose;
(ii) any accommodation which has not been
let under an express provision of contract
for non-residential purpose;
(b) that the accommodation let for non-
residential purposes is required “bona
fide” by the landlord for the purpose of
continuing or starting his business or that
of any of his major sons or unmarried
daughters, if he is the owner thereof or
for any person for whose benefit the
accommodation is held and that the
landlord or such person as no other
reasonably suitable non-residential
accommodation of his own in his
occupation in the city or town concerned:
The specified categories of landlords by whom proceedings can
be initiated under Chapter III-A are defined in Section 23-J which
reads as under:-
“Sec.23J. Definition of landlord for the
purposes of Chapter III-A.___For the purposes of
this Chapter “landlord” means a landlord who is ___
(i) a retired servant of any Government
including a retired member of
Defence Services; or
(ii) a retired servant of a company owned
or controlled wither by the Central or
State Government; or
(iii) a widow or a divorced wife; or
(iv) physically handicapped person; or
(v) a servant of any Government
including a member of defence
services who, according to his service
conditions, is not entitled to
Government accommodation on his
posting to a place where he owns a
house or is entitled to such
accommodation only on payment of a
penal rent on his posting to such
place.”
Such a landlord seeking eviction of his or her tenant on the
ground of bona fide requirement of residential or non residential
accommodation, the ground as defined in Section 23-A of the Act,
must have recourse to Chapter III-A only. Section 11-A of the Act
provides that the provisions of Chapter III so far as they relate to
matter specially provided in Chapter III-A shall not apply to the
landlord defined in Section 23-J. Section 45 of the Act also provides
that as to the matters which the Rent Controlling Authority is
empowered by or under the Act to decide are not entertainable by
Civil Court. The effect of these provisions is that a landlord as
defined in Section 23-J of the Act cannot have recourse to the forum
of Civil Court.
Broadly speaking, the main features of Chapter III-A are that it
provides a summary procedure for the hearing of applications on the
lines similar to those contained in Order 37 of the CPC. The tenant
cannot contest the prayer for eviction from accommodation unless
leave to defend is sought for by moving an application within the
prescribed period of time and allowed. Default in appearance or
refusal of leave results in the statement made by the landlord in the
application for eviction being deemed to have been admitted by the
tenant obliging the Rent Controlling Authority to pass an order of
eviction. Where leave is granted to the tenant to contest the
application, the Rent Controlling Authority shall hold an enquiry
consistently with the practice and procedure of a Court of Small
Causes. The requirement of the landlord is presumed to be bona fide
unless the contrary is proved, that is to say, the burden of proof is
placed on the tenant to rebut the case of the landlord contrary to the
ordinary procedure in a Civil Court where the burden of proof lies on
the landlord. As against an order of eviction passed by the RCA, a
revision lies to the High Court and the remedy of appeal is excluded.
The submission of Shri S.S. Ray, the learned senior counsel for
the appellants, has been that the procedure and remedy provided by
Chapter III-A are summary and onerous to the tenant. Mainly
speaking, the tenant is not entitled to defend himself as of right, the
burden of proof is shifted on him from the very inception and he does
not have a right of appeal.
At the very outset, we may point out that the issue as to the
constitutional validity of the provisions contained in Chapter III-A of
the Act is not before us. The proceedings have originated in the
jurisdiction of Rent Controlling Authority where the question of vires
could not have been raised and gone into. Before the High Court,
during the hearing of revision filed by the appellants, the plea was
faintly raised and urged but turned down. In the absence of proper
pleadings and the Advocate General of the State having been put on
notice, we do not deem it proper to enter into the question of
constitutional validity. However, it needs to be noted that the
controversy as to the constitutional validity of Chapter III-A on the
ground of being violative of Article 14 of the Constitution as
conferring benefit of special procedure for eviction of tenant on
certain classified landlords and the classification suffering from
invidious discrimination is a beaten track. All these questions have
been exhaustively gone into by a Division Bench of the High Court of
Madhya Pradesh presided over by J.S. Verma, J. (as His Lordship
then was) in B. Johnson Vs. C.S. Naidu, AIR 1986 MP 72, and the
challenge was turned down. In Kewal Singh Vs. Lajwanti, (1980) 1
SCC 290, a similar challenge laid against similar provisions of the
Delhi Rent Control Act, 1958, was rejected. Similarly in Ravi Dutt
Sharma Vs. Ratanlal Bhargava, (1984) 2 SCC 75, challenge to the
classification between landlords in order to provide benefit of the
special procedure only to some of them constituting a distinct class
was upheld as permissible and reasonable classification. Both these
decisions were relied on by the Division Bench of the High Court of
Madhya Pradesh in B. Johnson’s case (supra). To the same effect is
a later Full Bench decision of Madhya Pradesh High Court in
Kunjulal Yadu Vs. Parasram Sharma, 2000 (II) MPJR 123. So
much observation would suffice for the purpose of the present case as
in our opinion, the present one is not a fit case, on the basis of the
pleadings and material available, to examine the question of
constitutional validity of Chapter III-A of the Act.
The principal issue is that out of three co-landlords, the
respondents herein, one is a widow falling within the definition of
‘landlord’ as defined in Section 23-J of the Act and hence entitled to
have recourse to the provisions of Chapter III-A while other two co-
landlords do not fall within the definition of ‘landlord’ in Section 23-
J. Though the requirement pleaded is of all the landlords, i.e. the
widow as also the other two co-landlords, it is only the widow who
can take advantage of the special procedure for eviction but the others
two, who actually require the premises for their non-residential use,
should have gone to Civil Court and cannot, under the law, have
recourse to the forum of Rent Controlling Authority.
The submission of Shri S.S. Ray, the learned senior counsel for
the appellants, is that inasmuch as the requirement is of non-classified
landlords to whom the forum of Civil Court under Section 12 of the
Act is open, they could not have invoked Chapter III-A to their
advantage and to the prejudice of the tenant-appellants and should
have filed their suits for eviction before the Civil Court. It is further
submitted that unless that view is taken the provisions of Chapter III-
A would be liable to be struck down as violative of Article 14 of the
Constitution and, therefore, the provisions of Chapter III-A should be
so read as to save them from constitutional invalidity. The submission
made by the learned senior counsel for the appellants, though
attractive, is liable to be discarded on scrutiny of its merit.
We will first note how the issue has been dealt with by the High
Court of Madhya Pradesh. In Shivraj Jat Vs. Smt. Asha Lata Yadav
and Ors.- 1989 MPJR HC 336, a widow filed an application under
Section 23-A of the Act for eviction of the tenant from the leased
premises on the ground that the same was bona fide required for the
purpose of starting the business of her major son who was also
arrayed as a co-plaintiff. One of the pleas raised on behalf of the
tenant was that only one of the applicants being a widow a
‘landlord’ as defined by Section 23-J of the Act, while the other
applicant was not such a landlord, the special procedure provided by
Section 23-A of the Act was not available to them. It was held by the
Division Bench that the provisions of Section 23-A (b) were
unambiguous. The legislation enables a “landlord” to seek eviction if
the leased premises are bona fide required by the landlord for starting
the business of a major son or daughter of the landlord; there can be
no logic or justification for denying that relief to the landlord because
the major son or daughter of the landlord also happens to be co-owner
of the leased premises. The case was held to be covered by Section
23-A(b) of the Act. A similar issue arose for consideration by a Full
Bench of Madhya Pradesh High Court in Harbans Singh Vs. Smt.
Margrat G. Bhingardive AIR 1990 MP 191. The question posed
before the Full Bench was : “Whether out of several landlords of an
accommodation including a widow, an application for eviction of the
tenant by the widow alone, on the ground of her own bona fide need
or joint need of herself and that of her married sons and their children,
would be competent before the Rent Controlling Authority under
Section 23-A(a) read with Section 23-J(iii) of the Act”. The premises
in question were let out by the late husband of the landlady and after
his death the widow as well as her children succeeded to the tenanted
premises by inheritance and therefore the widow and her children all
became co-owners and joint landlords thereof. The application for
eviction was filed by the widow alone. It was urged that the widow
alone cannot maintain an application under Section 23-A of the Act
either for her own bona fide need or for the joint need of herself and
her married sons who are also joint landlords but do not belong to the
special class envisaged in Section 23-J of the Act and have not joined
the widow in making application for eviction. The Full Bench held
that application filed by the widow alone as one of the landlords was
competent. The Full Bench further held :-
“If we examine the language of
Section 23-A and clause (a) thereof it would
be clear from the plain and unambiguous
words and language used therein that they
are capable of only one construction that the
person who falls in the category of special
class of landlords is authorized to take
action for eviction of the tenant either for his
own bona fide need or for the bona fide need
of any member of his family who may not
belong to any of the special class of
landlords. If we accept the submissions
advanced by the learned counsel for the
tenant/applicant then in that event we would
be doing violence to the plain language and
words used in the provisions under
consideration by reading into the said
provisions the words that the member of the
family for whose bona fide need, the
application has been filed by the special
class of landlord, should also belong to that
category. But law of Interpretation of Statute
does not permit such a course.
Consequently the result is that the
application made by the widow/non-
applicant under S.23-A(a) of the Act for
eviction of the tenant/applicant herein on the
ground of her bona fide need and that of her
married sons who are members of his family
is competent and maintainable before the
Rent Controlling Authority”(para 17).
“.out of several landlords of an
accommodation including a widow, an
application for eviction of the tenant by the
widow alone, on the ground of her own bona
fide need or joint need of herself and that of
her married sons and their children, who are
members of his family would be competent
before the Rent Controlling Authority under
S.23-A(a) read with S.23-J of the Act” (para
18).
We find ourselves in agreement with the view of the law
taken by the High Court of M.P. in Shivraj Jat’s case (supra) and
Harbans Singh’s case (supra). An analysis of Section 23-A(b) of the
Act shows that an application seeking eviction of tenant thereunder is
maintainable if :- (i) the accommodation is let for non-residential
purpose; (ii) it is required bona fide by the landlord for the purpose of
continuing or starting (a) his business, or (b) business of any of his
major sons or unmarried daughters; (iii) the landlord is the owner of
such accommodation or is holding accommodation for benefit of any
person who requires the accommodation; and (iv) the landlord or such
person has no other reasonably suitable non-residential
accommodation of his own in his occupation in the city or town
concerned.
It is well settled by at least three decisions of this Court,
namely, Sri Ram Pasricha Vs. Jagannath and Ors. (1976) 4 SCC
184, Kanta Goel Vs. B.P. Pathan and Ors.- (1977) 2 SCC 814 and
Pal Singh Vs. Sunder Singh (dead) by Lrs. and Ors. (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-
owner owns every part and every bit of the joint property along with
others 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 respectfully 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.
It follows that a widow, who is a co-owner and landlady of the
premises can in her own right initiate 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 the 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 be 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.
Here we may divert a little and refer to a decision of this Court
in Messrs. Importers and Manufacturers Ltd. Vs. Pheroze Framroze
Taraporewala and Ors. AIR 1953 SC 73. The local law (applicable
to Bombay) provided for a suit between landlord and tenant being
filed in the Small Causes Court. In the suit filed by the landlord
against the tenant, the sub-tenant was also impleaded as a party. The
defendant objected to the maintainability of the suit before the Small
Causes Court submitting that the suit being not one between landlord
and tenant alone it would not be within the competence of the Small
Causes Court to try the same. This Court held that a sub-tenant was a
proper party in a suit for ejectment between landlord and tenant. The
joinder of such a proper party cannot alter the character of the suit and
does not make the suit any the less a suit between the landlord and the
tenant; to hold otherwise will be to encourage multiplicity of the suits
which will result in no end of inconvenience and confusion. It is clear
from the ratio of this decision that presence of proper party does not
alter the basic character of the suit and availability of forum is to be
determined by examining the essential nature of the suit.
The submission of the learned senior counsel for the tenant-
appellants if accepted may create a diabolical situation. The
requirement pleaded is the requirement of a widow landlady for
continuing or starting the business of her major sons. In proceedings
for eviction of a tenant it is permissible for all the co-owner landlords
to join as plaintiffs. Rather, this is normally done. Now, if they all file
a claim before the Civil Court an objection may possibly be raised on
behalf of the tenant-defendant that the widow landlady being one of
the claimants for eviction she must go to the Rent Controlling
Authority under Chapter III-A. If they collectively join in initiating
the proceedings for eviction of the tenant before the Rent Controlling
Authority under Chapter III-A the tenant-defendant may object that
the requirement being that of the major sons who are themselves
landlord-applicants the claim should have been filed before the Civil
Court, as is the plea before us. How such dilemma can be resolved?
Both the learned senior counsel for the parties stated that there
is no specific statutory provision nor a binding precedent available
providing resolution to the problem posed. Procedural law cannot
betray the substantive law by submitting to subordination of
complexity. Courts equipped with power to interpret law are often
posed with queries which may be ultimate. The judicial steps of judge
then do stir to solve novel problems by neat innovations. When the
statute does not provide the path and precedents abstain to lead, then
they are the sound logic, rational reasoning, common sense and urge
for public good which play as guides of those who decide. Wrong
must not be left unredeemed and right not left unenforced. Forum
ought to be revealed when it does not clearly exist or when it is
doubted where it exists. When the law procedural or substantive
does not debar any two seekers of justice from joining hands and
moving together, they must have a common path. Multiplicity of
proceedings should be avoided and same cause of action available to
two at a time must not be forced to split and tried in two different fora
as far as practicable and permissible.
Reference to, or deriving aid from, certain legal maxims will be
useful. Ubi jus ibi remedium there is no wrong without a remedy.
Where there is a right there is a forum for its enforcement. According
to Broom’s Legal Maxims (Tenth Edition, pp.118-119), the maxim
has been considered so valuable that it led to the invention of the form
of action called an action on the case. Where no precedent of a writ
can be produced, the clerks in Chancery shall agree in forming a new
one. The principle adopted by courts of law accordingly is, that the
novelty of the particular complaint alleged in an action on the case is
no objection, provided that an injury cognizable by law be shown to
have been inflicted on the plaintiff, in which case, although there be
no precedent, the common law will judge according to the law of
nature and the public good. If a man has a right, he must, “have a
means to vindicate and maintain it, and a remedy if he is injured in the
exercise and enjoyment of it, and, indeed, it is vain thing to imagine a
right without a remedy, for want of right and want of remedy are
reciprocal”.
As held in Smt. Ganga Bai Vs. Vijay Kumar and Ors.
(1974) 2 SCC 393 there is an inherent right in every person to bring a
suit of a civil nature and unless the suit is barred by statute one may,
at one’s peril, bring a suit of one’s choice. It is no answer to a suit,
howsoever frivolous the claim, that the law confers no such right to
sue. A suit for its maintainability requires no authority of law and it is
enough that no statute bars the suit.
Plaintiff is dominus litis, that is, master of, or having dominion
over, the case. He is the person who has carriage and control of an
action. In case of conflict of jurisdiction the choice ought to lie with
the plaintiff to choose the forum best suited to him unless there be a
rule of law excluding access to a forum of plaintiff’s choice or
permitting recourse to a forum will be opposed to public policy or will
be an abuse of the process of law.
Reference may also be had to Section 17 of CPC which
provides that where a suit is to obtain relief respecting immoveable
property situate within the jurisdiction of different Courts, the suit
may be instituted in any Court within the local limits of whose
jurisdiction any portion of the property is situated; provided that, in
respect of the value of the subject-matter of the suit, the entire claim is
congnisable by such Court. The provision confers right on plaintiff
suing on consolidate cause of action to choose one out of several fora
available to him and it is his convenience and sweet will which will
prevail. The provision is not an answer to the problem posed in the
present case; nevertheless the principle underlying thereunder can be
read out and pressed in service. In Nrisingha Charan Nandy
Choudhry Vs. Rajniti Prasad Singh and Ors. AIR 1936 PC 189,
their Lordships referred to Section 17 of the CPC and termed it as the
ordinary rule for determining the Court which can take congnizance of
a suit for immoveable property situated within the local limits of two
or more tribunals. Where cause of action is one against several
defendants and they reside in different jurisdictions, the plaintiff may,
under Section 20 of CPC file the suit in a court within whose
jurisdiction any one of the defendants, at the time of the
commencement of the suit, actually and voluntarily resides. Thus in
case of a cause of action being triable in more than one forum it may
be tried by any one forum subject to any other provision or rule of
law.
Reverting back to the issue before us, the cause of action is one
requirement of a major son, who himself is a co-owner. It is capable
of being construed in two ways, depending on from the point of view
of which of the landlords we look at. From the point of view of the
widow landlady and owner it is a case of the accommodation let for
non-residential purpose required bona fide by the landlady for the
purpose of continuing or staring the business of any of her major sons,
within the meaning of Section 23-A(b) of the Act. From the point of
view of the major son himself, who is also himself an owner, it is a
case of the accommodation let for non-residential purpose required
bona fide by the landlord for the purpose of continuing or starting his
business as he is owner thereof, within the meaning of Section
12(1)(f) of the Act. In the former case the cause of action is triable by
way of an application before R.C.A. In the latter case the cause of
action is triable in a suit instituted in Civil Court. Any one of them
may singally commence the proceedings without impleading the other
or by impleading the other as a non-applicant or defendant in pro-
forma capacity in which case the choice of forum would present no
difficulty. The former shall go to R.C.A. The latter shall go to Civil
Court. However, the law does not prevent the co-owner landlords
from joining together to sue on the cause of action common to them
all. And if they do so the conflict of jurisdiction arises. The choice of
forum, in such a case, must of necessity be left open to the plaintiffs.
Otherwise they will be left without remedy. Keeping in view the
three relevant principles (i) that every wrong must have a remedy and
every right to relief must have a forum for enforcement, (ii) that
plaintiff is dominus litis, and (iii) that one co-owner/landlord can file a
suit for ejectment of tenant and it is not necessary that all co-
owner/landlords must jointly sue for ejectment though they are not
prevented from rather entitled to joining together and suing jointly
if they wish to do so, we proceed to state our conclusions as under :-
(i) where a claim for eviction is filed by a landlord, or a co-landlord,
belonging to any one of the five categories defined in Section 23-J of
the Act, as the sole applicant without objection by other co-landlords
who have not joined as co-applicants and the nature of claim for
eviction is covered by Section 23-A(b) of the Act, the proceedings
would lie only before the Rent Controlling Authority;
(ii) where a claim for eviction is filed by a landlord or by such a co-
landlord who does not belong to any of the categories defined by
Section 23-J and the other co-landlord/landlady falling in one of the
categories defined in Section 23-J is not joined as co-plaintiff the
claim shall have to be filed only by way of a suit instituted in a Civil
Court;
(iii) if the proceedings are initiated by such co-owner landlords, one or
more of whom belong to Section 23-J category while some others are
those not falling within the definition of ‘landlord’ under Section 23-J
and the requirement pleaded provides a cause of action collectively to
all the landlords arrayed as plaintiffs or applicants, the choice of
forum lies with the landlords. They may file an application before
R.C.A. under Chapter III-A or may file a civil suit in a Civil Court
under Section 12 of the Act; in either case the proceedings would be
competent and maintainable.
We are, therefore, of the opinion that there is no merit in the
plea raised on behalf of the appellants that the three respondents, one
widow and her two major sons, could not have initiated proceedings
for eviction before the Rent Controlling Authority. We have carefully
perused the two applications for eviction filed by the respondents. The
bonafide requirement pleaded is of the widow landlady, the
respondent no.1, who requires the suit premises for Govinda,
respondent no.2 for starting his business and that of another son
Hemant, the respondent no.3 for continuing the business which
presently he is carrying on in rented premises. Respondents 2 and 3
being major sons of the widow respondent no.1, such requirement
clearly falls also within the purview of Section 23-A (b) of the Act.
The proceedings initiated before R.C.A. do not suffer from want of
jurisdictional competence.
So far as the challenge to proof of requirement is concerned it
merits a summary dismissal. The Rent Controlling Authority
and the High Court, both, have on a meticulous evaluation of evidence
found the requirement proved. None of the landlords is possessed of
any other suitable alternative accommodation of his or her own to
satisfy the requirement found proved. A landlord cannot be
compelled to carry on business in rented premises and the proved
requirement cannot be defeated by the tenant submitting that the
landlord can start or comfortably continue to run his business in
rented premises. It has come in evidence that the landlords have
secured possession of some premises in Ahilyapura locality situated at
a short distance from the suit premises but the Ahilyapura
accommodation is again a tenanted accommodation and hence
irrelevant for defeating the claim of the landlords. To be an alternative
accommodation relevant within the meaning of Section 12(1)(f) or
Section 23-A(b) it must be ‘of his own’, that is, the one ‘owned’ by
the landlord. Another alternative accommodation pointed out by the
tenant is the one situated on the first floor of the building. It has come
in the evidence that the second floor of the building is used for
residence of the landlords while the first floor is used partly as a
godown and partly for stitching the clothes which are sold as
readymade garments in the shop of respondent no.3. To amount to an
alternate non-residential accommodation so as to defeat the
requirement of the landlord for the suit premises, it should be
reasonably suitable non-residential accommodation. It should be
suitable in all respects as the suit accommodation is. In Shiv Sarup
Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 this Court
has held that an alternative accommodation, to entail denial of the
claim of the landlord, must be reasonably suitable, obviously in
comparison with the suit accommodation wherefrom the landlord is
seeking eviction. The availability of another accommodation, suitable
and convenient in all respects as the suit accommodation, may have an
adverse bearing on the finding as to bona fides of the landlord if he
unreasonably refuses to occupy the available premises to satisfy his
alleged need. The bona fides of the need of the landlord for the
premises or additional premises have to be determined by the Court
by applying objective standards and once the Court is satisfied of such
bona fides then in the matter of choosing out of more
accommodations than one available to the landlord, his subjective
choice shall be respected by the Court. For the business, which the
respondents no.2 and 3 propose to start or continue respectively, an
accommodation situated on the first floor cannot be said to be an
alternative suitable accommodation in comparison with the shops
situated on the ground floor. A shop on the first floor cannot attract
the same number of customers and earn the same business as a shop
situated on the ground floor would do. Moreover, there is no evidence
adduced by the appellants to show that in M.T. Cloth market shops are
also situated on first floor of buildings and attract the same business as
the shops on ground floor do. The High Court and the R.C.A. have
held none of the premises pointed out by the tenant-appellants such
alternate accommodation as may defeat the respondents’ claim. We
find no reason to take a different view. Between the years 1987 and
1989 late Krishna Das, the then sole owner of the building, had sold
three shops but that was an event which had taken place in the life-
time of late Krishna Das and cannot have relevance for denying the
claim of the respondent-landlords filed in the year 1995.
For all the foregoing reasons we find the appeals devoid of any
merit and liable to be dismissed. They are dismissed with costs.
However, each of the appellants is allowed four months time for
vacating the suit premises subject to each of them clearing all arrears
of rent and filing usual undertaking, within a period of four weeks
from today.