CASE NO.: Appeal (civil) 1263 of 2006 PETITIONER: Mohinder Prasad Jain RESPONDENT: Manohar Lal Jain DATE OF JUDGMENT: 24/02/2006 BENCH: S.B. Sinha & P.K. Balasubramanyan JUDGMENT:
J U D G M E N T
(Arising out of SLP(C)No.722/2005)
S.B. SINHA, J :
Leave granted.
The father of the respondent herein was the
owner of a shop in which the appellant was inducted as
a tenant on 1st April, 1972. The monthly rent payable
in relation to the said tenanted premises was Rs.700/-.
The original landlord, the father of the respondent
having died on 5th March, 1979, the respondent along
with his four sisters, became the owner of the said
tenanted premises. He was an employee of Hero
Honda Motors Limited. He retired from service having
attained the age of superannuation. One year after his
retirement, he filed an application under Section 13 of
the Haryana Urban (Control of Rent and Eviction) Act,
1973 (`the Act’) for eviction of the appellant from the
shop in question on the ground of his bona fide
personal requirement, i.e., for the purpose of running
wholesale business in Ayurvedic medicines. The said
application was dismissed by the Rent Controller
holding that the bona fide requirement of the
respondent in respect of the non-residential premises
has not been proved and moreover he had not been
able to show consent of his sisters in his favour in that
behalf. An appeal preferred thereagainst was allowed
by the Appellate Authority on a finding that he proved
his bona fide requirement. In the revision petition filed
before the High Court the appellant raised a contention
that an application for eviction on bona fide
requirement of a non-residential premises was not
maintainable.
It is not in dispute that this Court as also the
Punjab & Haryana High Court declared such a provision
to be unconstitutional.
The High Court opined :
“Still further the learned
counsel further argued that eviction
on the basis of personal requirement
is not available in respect of non-
residential building. He has placed
reliance upon the Full Bench judgment
of Delhi High Court reported as
Satyawati Sharma Versus Union of
India and another 2003 (1) R.L.R.
91.
However, I am bound by the
judgment of the D.B. of this Court in
State of Haryana Versus Ved Parkash
Gupta and others. 1999 (1) R.L.R.
689, wherein the provision of Haryana
Urban (Control of Rent and Eviction)
Act, 1973 have been struck down and
consequently, the landlord is entitled
to seek eviction of the tenant from the
non-residential building. In view of
the above judgment the reliance of
F.B.’s Judgment of Delhi High Court is
not tenable.”
We may notice that this Court in Harbilas
Rai Bansal vs. State of Punjab & Anr. [(1996) 1
SCC 1] held such a provision to be unconstitutional,
whereas in Gian Devi Anand vs. Jeevan Kumar &
Ors. [(1985) 2 SCC 683] somewhat different note was
struck. The question recently fell for consideration
before a Three Judge Bench of this Court in Rakesh
Vij vs. Dr. Raminder Pal Singh Sethi & Ors.
reported in (2005) 8 SCC 504 wherein this Court
upheld the ratio laid down in Harbilas Rai Bansal
(supra) stating :
“We allow the appeal, set
aside the impugned judgment of the
High Court, declare the abovesaid
provisions of the amendment as
constitutionally invalid and as a
consequence restore the original
provisions of the Act which were
operating before coming into force of
the amendment. The net result is that
a landlord under the Act can seek
eviction of a tenant from a non-
residential building on the ground that
he requires it for his own use.”
In view of the afore-mentioned decision of
this Court, we are not called upon to answer the said
question.
The learned counsel appearing on behalf of
the appellant faced with the said decision, however,
submitted that whereas a clear finding of fact was
arrived at by the Rent Controller that the respondent
had failed to prove his bona fide requirement in
relation to the said premises in view of the fact that his
sisters did not give any consent for starting a business
in the said shop, the Appellate Authority did not delve
deep into the matter. Our attention in this behalf has
been drawn to the following findings of the Rent
Controller:
“The third ground which has
been raised by the counsel for the
respondent for nailing the petitioner’s
case by itself has a force to upset the
petitioner’s case because firstly in the
case in hand the petitioner has no
where pleaded that he is the sole
owner of the shop in dispute and
secondly from the perusal of Ex.D6-the
petition under Section 4 of the Act for
the Determination of the Fair Rent
which was filed by the petitioner
alongwith his four sisters, this Court is
satisfied that the shop in dispute is
jointly owned by the petitioner
alongwith his four sisters. In para No.1
of the aforesaid petition Ex.D6 this has
been categorically pleaded that the
petitioners (i.e. the Manohar Lal Jain-
the petitioner and his four sisters) are
owner of the shop. Consequently the
testimony of the petitioner that he is
owner of the shop in dispute is not only
beyond pleading but is also devoid of
truth. Since the petitioner is not the
sole owner of the shop in dispute,
therefore, the petitioner’s version that
the shop in dispute is required solely by
him for his personal use and occupation
for running a wholesale business of
Ayurvedic Business appears to be a
concocted version because the
petitioner has no where stated that his
other four sisters who are also the
owner of the shop in dispute have
consented him to use the shop in
dispute for his own use and
occupation.”
The appellate Authority although should have
dealt with the said question, had otherwise considered
the matter from all aspects.
He had taken note of the fact that the
landlord was one of the co-owners and non-joinder of
other co-owners in eviction petition is not fatal.
This question now stands concluded by a
decision of this Court in India Umbrella
Manufacturing Co. & Ors. vs. Bhagabandei
Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt.)
& Ors. [(2004) 3 SCC 178] wherein this Court opined:
“Having heard the learned
counsel for the parties we are satisfied
that the appeals are liable to be
dismissed. It is well settled that one of
the co-owners can file a suit for
eviction of a tenant in the property
generally owned by the co-owners.
(See Sri Ram Pasricha v. Jagannath
[(1976) 4 SCC 184] and Dhannalal v.
Kalawatibai [(2002) 6 SCC 16], SCC
para 25.) This principle is based on the
doctrine of agency. One co-owner
filing a suit for eviction against the
tenant does so on his own behalf in his
own right and as an agent of the other
co-owners. The consent of other co-
owners is assumed as taken unless it is
shown that the other co-owners were
not agreeable to eject the tenant and
the suit was filed in spite of their
disagreement. In the present case, the
suit was filed by both the co-owners.
One of the co-owners cannot withdraw
his consent midway the suit so as to
prejudice the other co-owner. The suit
once filed, the rights of the parties
stand crystallised on the date of the
suit and the entitlement of the co-
owners to seek ejectment must be
adjudged by reference to the date of
institution of the suit; the only
exception being when by virtue of a
subsequent event the entitlement of
the body of co-owners to eject the
tenant comes to an end by act of
parties or by operation of law.”
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 proceeding
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 appellant was
required to show that he had experience in running the
business in Ayurvedic medicine, has to be stated to be
rejected. There is no law which provides for such a
pre-condition. It may be so where a licence is required
for running a business, a statute may prescribe certain
qualifications or pre-conditions without fulfilment
whereof the landlord may not be able to start a
business, but for running a wholesale business in
Ayurvedic medicine, no qualification is prescribed.
Experience in the business is not a pre-condition 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.
For the foregoing reasons, there is no merit in
this appeal. It is dismissed. In the facts and
circumstances of this case, there shall be no order as
to costs.