CM(M)/281/2007 of MELANIE VASS SIMON & ORS Vs LINA KILA CHAND @ LINA LAILA B

Date of Reserve: August 19, 2008 Date of Order: October 17, 2008

+CM(M)281/2007 %

17.10.2008

Melanie Vass Simon & Ors. •. ..Petitioners Through: Mr. V.P. Singh, Sr. Adv. with Mr. Atishi Dipankar, Advocates Through: Mr. V.P. Singh, Sr. Adv. with Mr. Atishi Dipankar, Advocates

Versus

• Lina Kila Chand @ Lina Laila .Respondent Through: Mr.A.K. Singla, Sr. Adv. with Mr. Rajesh Baweja, Advocates Through: Mr.A.K. Singla, Sr. Adv. with Mr. Rajesh Baweja, Advocates

JUSTICE SHIV NARAYAN DHINGRA

Whether reporters of local papers may be allowed to see the judgment?

To be referred to the reporter or not? Whether judgment should be reported in Digest?

JUDGMENT:

1. The petitioner is aggrieved by an order dated 21' November 2006 passed by the learned Civil Judge whereby learned Civil Judge dismissed an application of the plaintiff (petitioner herein) under Order 12 Rule 6 of CPC for passing decree on the basis of admissions of defendants. - passed by the learned Civil Judge whereby learned Civil Judge dismissed an application of the plaintiff (petitioner herein) under Order 12 Rule 6 of CPC for passing decree on the basis of admissions of defendants. -

• 2. The brief facts relevant for the purpose of deciding this petition are that the petitioner filed suit for ejectmentagainst Shri Bhag Israni to whOm the property was let out on monthly rent of Rs.5000/.. started from 1.8.1980. that the petitioner filed suit for ejectmentagainst Shri Bhag Israni to whOm the property was let out on monthly rent of Rs.5000/.. started from 1.8.1980. the tenancy of the tenant was terminated, by an ejectment notice dated 16' January, 1989 given by the landlord •asking the tenant to hand over the January, 1989 given by the landlord •asking the tenant to hand over the

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possession of the premises on the expiry of midnight of 28 [1h ] February 1989 i.e. March 1989. This notice was duly received and replied by the defendant (respondent herein) through an advocate on [30th ] January, 1989 stating therein that the notice, was not valid and proper. On refusal of the defendant to vacate the premises, the plaintiff filed suit against Mr. Bhag -a Israni. However, Mr. Bhag Israni expired on [19th ] March 1988 and after his death, the present respondent Ms. [ma Kila Chand was impleaded as defendant. During proceedings before the trial court, an application under Order 12 Rule 6 CISC was filed on behalf of the petitioner contending that in view of the unequivocal admission made on the part of the defendant regarding rent being above Rs.3500/-, terñiination of tenancy by notice which was duly received, there was no impediment in passing decree of possession in favour of the petitioner and prayed accordingly. The defendant contested the application on the ground that the plaintiff No.4 [Mr. Jay Randolph Vass] who was the co-owner to the extent of [1112th ] share in the suit property had executed valid power of attorney and other documents in favour of the defendant qua his share in the suit property. It was also contended that the plaintiff No.4 also withdrew the power of attorney drawn in favour of the person who signed the plaint on his behalf and he was no . longer interested in getting the premises vacated from the defendant and hence there was lack of common intention among the plaintiffs. It was further argued that the rent of the premises cannot be considered as Rs.5000/- since there were many co-owners of the premises and the rent has to be divided among each of the co-owners. Therefore, the tenanted premises was covered under Delhi Rent Control Act (DRC Act). The legality and validity of authorization on behalf of the plaintiff No.1,2 and 3 in favour .of the applicant was also challenged. It was argued that one of the co-lessor on his

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own choice and pleasure cannot evict tenant unless he represents other co-lessors also. The learned Civil judge after examining the contentions of both sides came to conclusion that it was the case of the plaintiffs that there was one tenancy at the rate of Rs.5000/- per month, therefore, commonness of the intentiOn among all the lessors was vital aspect. He further observed that the defendants have raised objections qua authorization on behalf of other co-Owners showing conflict of interest among the plaintiffs with respect to their common intention. The plaint as well as other documents were not signed by the plaintiffs and co-owners in person. He further observed that the defendant has denied the landlordship or the ownership of the plaintiffs. Though the trial court found that in written statement admission had been made qua rate of rent, service of termination notice, tendering of rent etc, but considered that other contentions raised triable issUes and can be decided only after evidence. Accordingly, he rejected the application under Order 12 Rule 6 CPC.

3. It is argued by counsel for the petitioner that the trial court failed to exercise its jurisdiction vested in it. The trial court ignored the basic principle' of law qua joint ownership of the premises. It is submitted that there was clear admission on the part of the tenant in respect of the rate of rent, receipt of notice, termination of tenancy, tendering of rent to the petitioner No.1 herein, recognizing the petitioner No.1 as the landlord and in view of these clear admissions, there was no reason that the application under Order 12 Rule 6 CPC should have been dismissed more so in view of settled legal position in respect of the right of co-owner, there was no reason that the Civil judge should have dismissed the application. The order of the learned Civil judge was, therefore, without jurisdiction and suffered from material exercise its jurisdiction vested in it. The trial court ignored the basic principle' of law qua joint ownership of the premises. It is submitted that there was clear admission on the part of the tenant in respect of the rate of rent, receipt of notice, termination of tenancy, tendering of rent to the petitioner No.1 herein, recognizing the petitioner No.1 as the landlord and in view of these clear admissions, there was no reason that the application under Order 12 Rule 6 CPC should have been dismissed more so in view of settled legal position in respect of the right of co-owner, there was no reason that the Civil judge should have dismissed the application. The order of the learned Civil judge was, therefore, without jurisdiction and suffered from material

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irregularity.

4. It is well settled preposition of law that co-owner can file suit for eviction of tenant in the property owned by several co-owners. The consent of other co-owners is assumed as taken unless it is shown that other co-owners were not agreeable to evict the tenant at the time when suit was filed. mere subsequent disagreement of one of the co-owners would not affect the filing of the suit. The right which is accrued to the co-owner at particular time cannot be taken away and the person cannot be non-suited because of the change of events or of hearts. This proposition of law was [[upheld by the Supreme Court in ]][[India Umbrella Mfg. Co. v Bhagabandei ]]Agarwalls (2004) 3 SCC 178 wherein the Suprebie Court observed as under:-

•' [[upheld by the Supreme Court in ]][[India Umbrella Mfg. Co. v Bhagabandei ]]

6. 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 Suit for eviction of tenant in the property generally owned by the Co-owners. (See: Sri Ram Pasricha Vs. Jagannath & Ors., (1976) 4 SCC 184; Dhannalal Vs. Kalawatibai & Ors.,. (2002) 6 5CC 16, para25). This principle is based on the doctrine of agency. One co-owner filing suit for eviction against the tenant des 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 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-owhers. 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

y is shown that the other co-owners were not agreeable to

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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 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."

5. Where property subject matter of the eviction proceedings is owned by several co-owners, each of the coowner owns entire ténanted property along with others and it cannot be said that he was only part owner or fractional owner of the property, so long as the property has not been partitioned. The contention of the respondent/tenant that there were several owners of the property and, therefore, the rent of the property could not have been considered as Rs.5000/- or that the property was coved under Delhi Rent Control act is baseless contention. Though this contention was rejected by the trial court, but it was again raised before this Court. When property is jointly owned and there had been no partition of the property, the ownership is one and the tenancy qua single tenant in such property is by several co-owners, each of the coowner owns entire ténanted property along with others and it cannot be said that he was only part owner or fractional owner of the property, so long as the property has not been partitioned. The contention of the respondent/tenant that there were several owners of the property and, therefore, the rent of the property could not have been considered as Rs.5000/- or that the property was coved under Delhi Rent Control act is baseless contention. Though this contention was rejected by the trial court, but it was again raised before this Court. When property is jointly owned and there had been no partition of the property, the ownership is one and the tenancy qua single tenant in such property is also one. The Supreme Court in Dhannalal v. Kalawatibal (2002) 6 5CC 16 considered this issue and observed as under:- 16 considered this issue and observed as under:-

"16. Itis well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath (1976) 4 5CC 184, Kanta Goel v. B.P. Pathak (1977) 2 5CC 824 and Pa! Singh v. Sunder Singh (1989) 1 5CC 444, that one of the co-owners can alone and in his own right file suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other co-owners were not ioined as

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parties to the suit. When the property forming the 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 others and it cannot be said that he is only part-owner or fractional owner of the property so long as the property has not been partitioned. He can alone maintain suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object. In Sri Ram Pasricha case reliance was placed by the tenant on the English rule that if two or more landlords institute suit for possession on the ground that dwelling house is required for occupatio1n of one of them as residence the suit would fail; the requirement must be of all the landlords1 The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectfully dissented' fro the rule of English • law. This Court. held that decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required he 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) (1) of the W.S. Premises Tenancy Act, 1956."

(Emphasis added) S[w ]Similar view wa taken in subsequent decision by the Supreme Court in Mohinder Prashad Jam v Manohar Lal Jam (2006) 2 SCC 724.

perusal of.record would show that the original tenant had been paying rent to one Shri [J.M. ] Shrinagesh and after the death of Shri J.M. Shringesh, Mrs. Melane Vass Simon (petitioner No.1 herein) was accepted as

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the landlord and the tenant started paying rent to Mrs. Melanie Vass Simoh. There are admissions on record on the part of the original tenant in the form of reply to the notice as well as in the written statement to the effect that he was tenant on monthly rent of .Rs.5000/- and he was paying rent to Mrs. Melanie Vass Simon The receipt of legal notice dated 161h January 1989 • terminating the tenancy is admitted because this notice was duly replied by the tenant It is settled proposition of law that once the tenant has attorned in favour of the landlord, subsequently the ténnt cannot deny the title of the landlord keeping in view Section 116 of the Evidence Act, 1872 which provides for doctrine of tenant's estoppels against the tenant. The Suprem Court in Sri Ram Pas -,cha v Jagannath, (1976).4 SCC 184 wherein th Supreme Court observed as under

"14. There are two reasons for our not being able to accept the above submission Firstly, the plea pertains to the dorhain of the frame of the suit as if the suit is bad for non-jodider of other plaintiffs. Such plea should

have been . raised, for what it is worth, at the earliest opportunity. It was not done. Secondly, the relation between the parties being that of landlord • and tenant, only the landlord could . terminate • the tenancy and institute the suit for eviction. The tenant in such suit is stopped from questioning the title of the landlord under section 116 of the Evidence • Act. The 4nant cannot deny that the landlord had title to the premises at the commencement of the • tenancy. Under the general law, in suit between landlOrd and tenant the question of title to the leased • property is irrelevant. it is, therefore, inconceivable to • throw out the suit on account of.non-pleading co- owners as such." • • •

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8 In order to allow an application under Order 12 Rule 6 CPC in case of possession of tenanted premises on the basis of admissions, the Court has only to see if the relationship of the tenant and landlord was admitted, the rent was above Rs.3500/-, the tenany has been terminated by way of legal notice giving 15 days clear time to the tenant [tenancy being month to month]. In this case, all the three contentions are satisfied. it is not disputed that the tenancy was month to month and the rent was above Rs.35,00/-. The tenancy was, therefore, beyond the purview of the DRC Act. This tenancy was terminated by notice dated [161h ] January 1989 and more than 15 clear days time was given to the tenant and the tenant was asked to vacate•the premises by midnight of 28 [th ] February 1989. The receipt of notice is admitted because the notice was duly.repliéd by the tenant on [315t ] January 1989 itself. In view of these admissions having come on record and in view of the law clearly laid down in respect of the co-owners, there was no reason that the trial court should have dismissed the application under Order 12 Rule 6 of CPC. The object and intent of Oder 12 Rule 6 CPC is to enable party to • obtain speedy judgment at least to the extent of the relief which is admitted by the defendant. The trial court cannot unduly narrow down the meaning of this Rule by importing such considerations which are not germane to the suit. Where party has made clear admissions qua the above factors, the landlord/owner's right to take the possession back cannot be denied. Division Bench of this Court in ITDC Ltd. V. Chander Pal Sood & Son, 84 (2000) DLT 337, held that where in the relationship of landlord and tenant, service of notice to terminate the tenancy, and the rate of rent @ Rs.5000 was admitted in the written statement, the trial court rightly passed the order under Order 12 Rule 6. This Court further held that the other plea raised -in the written

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statement were not relevant and the clear and unequivocal admissions qua these factors was sufficient to pass decree of possession.

9. I consider that the trial court did not exercise jurisdiction vested in it and committed material irregularity. I, therefore, allow this petition. The impugned order passed by court below is hereby set aside and the application under Order 12 Rule 6 CPC of the landlord/petitioner, is hereby . allowed. decree of evicti6n of the premises bearing No.34, Vasant Marg, Vasant Vihar, New Delhi, is hereby passed. Parties are left to bear their own costs.

'SHIV NARA N DiJNRA\JtJ/'

October 17, 2008 rd