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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

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reliance upon the Full Bench judgment  of Delhi High Court reported as  Satyawati Sharma Versus Union of  India and another \026 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. \026 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 \026 under the Act \026 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

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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

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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.