Dhannalal
Vs. Kalawatibai & Ors [2000] INSC 354 (8 July 2000) Appeal (Civil) 3653 of 2002
R.C.
LAHOTI, B.N. AGRAWAL. 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 SCC 290, a similar challenge laid against
similar provisions of the Delhi Rent Control Act, 1958, was rejected. Similarly
in Ravi Dutt 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 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 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 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, 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 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".
(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 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 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.
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