Iftikhar Husain vs IIIrd Addl. District Judge and Others

Prakash Krishna, J.—The petitioner who is tenant of a shop situate in Babu Ram market Badaun on a monthly rent of Rs. 28, has filed the present writ petition against the two orders of the court below rejecting the amendment application filed by him to amend the written statement. The S.C.C. Suit No. 4 of 1990 was filed against the petitioner for recovery of arrears of rent, damages and ejectment on the plea that the plaintiff (respondent No. 3) is the owner and landlord of the shop in question. Default in payment of rent and structural changes in the tenanted accommodation are the grounds on which the eviction has been sought. The petitioner tenant in the written statement denied that he is in arrears of rent or made any alteration in the disputed shop. However, the relationship of landlord and tenant, and the fact that the petitioner is owner and landlord of the disputed shop as pleaded in para 1 of the plaint, was admitted in para 1 of the written statement. Subsequently, an application for amendment of the written statement to incorporate paras 3A and 3B in the written statement to the effect that previously one Siddh Gopal, the father of the plaintiff respondent was the owner/landlord of the suit property and after his death, his widow, four sons and four daughters are heirs and legal representatives and all of them have become joint owners/landlord of the suit property. The other co-owners/ landlords having not joined in the plaint in filing the suit, the plaintiff alone has no right to sue against the defendant and the suit is liable to be dismissed and the suit is bad for non-joinder of the necessary party. The said amendment application was rejected by the trial court by the order dated 13th of October, 1992 and the said order has been confirmed in S.C.C. Revision No. 80 of 1992 by the judgment dated 26th of October, 1993. Challenging the legality and validity of the aforesaid two orders, rejecting the amendment application to amend the written statement, the present writ petition has been filed.

Shri S.A. Shah, the learned Counsel for the petitioner submitted that the courts below have erred in law in rejecting the amendment application and the suit is liable to be dismissed on account of non-joinder of the necessary parties. Elaborating the argument he submitted that the other heirs and legal representatives of Shri Siddh Gopal the father of the plaintiff respondent be added in the array of the parties.

I have given careful consideration to the aforesaid submission of the learned Counsel for the petitioner. It may be noted here that in para 1 of the plaint, the plaintiff has stated that he is the owner and landlord of the shop in question. The contents of the para 1 of the plaint has been admitted in para 1 (a) of the written statement by the defendant. The courts below, thus, have taken a correct view of law that there being an admission made by the petitioner tenant that there is a relationship of landlord and tenant between the parties, amendment sought for amounts to taking away of the admission, can be allowed. It has been clearly laid down by numerous judicial pronouncements that the amendment introducing the entirely new case and seeking to displace the plaintiff completely from the admission made by the defendant in written statement by substituting certain new paras in the written statement, cannot be permitted.

There is yet another aspect of the case. Section 3(j) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 (hereinafter to referred as the Act) defines the word ''landlord'' which means a person to whom rent is payable and Includes, except in Clause (g), the agent or attorney of such person. Meaning thereby the emphasis is on the contract in between landlord and tenant, and question of ownership is not relevant.

The Apex Court in Sri Ram Pasricha Vs. Jagannath and Others, has held as follows:

Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.

Again in D. Venkata Reddy Vs. R. Sultan and Others, it has been held that one co-owner can bring an action for eviction of the tenant and it is not necessary to Implead all the co-owners in such proceedings.

Following the aforesaid rulings a Full Bench of this Court in Gopal Das and Ors. v. 1st Additional District Judge, Varanasi 1987 AU 494 : 1987 (1) AWC 538 (FB), has held that one co-owner is competent to maintain an action for eviction of tenant of the entire premises, since he can be considered as landlord within the meaning of Section 3(j) of the Act.

The same principle has been reiterated by the Apex Court in its subsequent Judgment in Dhannalal Vs. Kalawatibai and Others, In subsequent decision in India Umbrella Manufacturing Co. and Others Vs. Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla and Others, , it has been held that one co-owner filing a suit for eviction of the tenant is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant, thus, though on his own behalf in his own right and the agent of other co-owners. The consent of other co-owners is assumed as taken unless it is shown that other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.

Recently, in Mohinder Prasad Jain v. Manohar Lal Jain JT 2006 (2) SCC 620 , the Apex Court observed that the question that a landlord who was one of the co-owners can institute a suit for eviction and such suit is not fatal, "now, stands concluded by a decision of this Court in India Umbrella Manufacturing Co. and Others Vs. Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla and Others, In para 10 of the report it has been observed that a suit filed by co-owner, thus, is maintainable in law. It is not necessary for the co-owner to show before initiating eviction proceedings before concerned authority that he had taken option or consent of other co-owners."

In view of the legal position, as noted above it is apparent that no useful purposes is going to be served by allowing the amendment application permitting the petitioner to amend his written statement.

In view of the above, there is no merit in the writ petition.

The petitioner by obtaining the stay order from "this Court got stayed the further proceedings in S.C.C. Suit No. 4 of 1990, thus, he succeeded in prolonging litigation for a considerable period of time and it is necessary to compensate the plaintiff respondents by awarding heavy cost and also requesting the trial court to decide the suit expeditiously preferably within a period of six months but not later than 31st of July, 2007. The trial Judge will do good by deciding the suit within the aforesaid frame of time and shall not grant adjournment unnecessarily. The proviso to the Order 17, Rule 1, C.P.C. as well as the principle laid down by the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , be kept in mind while adjourning the hearing of the suit. The writ petition is dismissed on the cost of Rs. 5,000 to be paid by the petitioner to the contesting respondent.