Rahimtulla Abdul Rahiman Nakib vs Chandrakant Anant Moog and others

Jahagirdar, J.—In this petition under Article 227 of the Constitution, a question of law has been raised, but I am relieved of entering into a detailed discussion of the same because that has been already decided by authorities which are binding upon me. The petitioner is the tenant of a room forming part of a building bearing C. T. S. No. 2197 situate at Kolhapur and the respondents'' father was the original owner of the said house. It is an admitted position that the respondents'' father has died and the respondents are some of the legal representatives of the original owner. It has been brought on record that apart from the five respondents, their father left behind him his widow and three daughters. The foundation of the arguments advanced in the two Courts below and repeated before me is this fact that it is not the five respondents alone who are the owners of the suit premises, but their mother and the three sisters are also owners of the same,

Regular Civil Suit No. 438 of 1973 was filed by the five respondents for possession of the suit premises on the ground, among others, that the petitioner was in arrears of rent for a period of more than six months and he has not complied with the requirements mentioned in Section 12 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as "the Bombay Rent Act". Both the Courts below have upheld the claim of the respondents and decreed the suit for possession. The trial Court passed the decree on 31st of January, 1976, which has been confirmed by the Appeal Court in Civil Appeal No. 172 of 1976 by its judgment and order dated 30th of June 1977. The petitioner has now approached this Court under Article 227 of the Const.

Mr. Bandivadekar, the learned Advocate appearing in support of the petition, has repeated the challenge as to the competence of the respondents to file the suit when the other heirs of the original landlord have not been joined either in giving the notice u/s 12 (2) of the Bombay Rent Act or in the suit which was filed for possession. Mr. Bandivadekar has contended that the reliance placed by the learned Assistant Judge on the judgment of this Court in Mishrimal Chhogalal Vs. N.B. Patel, , is wrong because subsequently this judgment has been distinguished by Bhasme J. in Mohan Sons (Bombay) Private Ltd. Vs. Lady Sonoo Jamatji Jejeebhoy and Others, . Mr. Bandivadekar has naturally relied upon the later judgment which apparently supports his contention that some only of the owner: of a building cannot file a suit for possession under the provisions of the Bombay Rent Act.

Much water, however, has flown down the Ganges after the judgment of Bhasme J. was given. In Kanta Goel Vs. B.P. Pathak and Others, , a similar question arose and has been answered conclusively. In that case the suit premises had been leased to the tenant by one Pandit Saraswatidas who died in the year 1972 leaving behind him the plaintiff, two other sons and a daughter as his legal representatives. It was the plaintiff alone who filed the application or the suit before the Rent Collector under the provisions of the Delhi Rent Control Act, 1958. One of the contentions which was taken in the Court below as well as in the higher Courts was that the plaintiff alone could not file a suit for possession of the premises leased to the tenant and in order that the suit should be properly constituted all the legal representatives of the original owner or in other words all the owners of the building at the time of the institution of the suit must necessarily join in the suit This argument was rejected by the Supreme Court. However, in Kanta Goel''s case the other co-owners of the suit premises had been joined as parties at the High Court stage. The contention which was raised on behalf of the tenant was summarised by the Supreme Court in the following words (at. p. 1601):

The presence of the co-heirs at the High Court level was inconsequential, according to the appellant, and their absence at the trial stage vitiated the order of the Controller.

After examining some other incidental questions which also arose, the Supreme Court proceeded to mention as follows:

Equally without force in our view is the plea that one co-lessor cannot sue for eviction even if the other co-lessors have no objection.

Thereafter the Supreme Court proceeded to examine the definition of "landlord" contained in the Delhi Act, which is pari materia with the definition of ''"landlord" contained in the Bombay Rent Act, and after doing so the following law was laid down:

The first respondent (the plaintiff), together with the other respondents, constituted the body of landlords and, by consent, implicit or otherwise, one of them representing them all, was collecting rent In short, he functioned, for all practical purposes as the landlord, and was, therefore entitled to institute proceedings qua landlord.

Thereafter, referring to an earlier judgment of the Supreme Court in Sri Ram Pasricha v. Jagannath, AIR 1976 3C 2335, the Supreme Court proceeded to hold as follows:

That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails.

The judgment of the Supreme Court in Kanta Goel''s case has been referred to and naturally followed by Kanade J. in Special Civil Application No. 2554 of 1975 decided on 2nd of July 1980 Reported in 1981 Bom CR 271. There is thus no alternative for me but to dismiss this petition whose main challenge is based on the judgment of Bhasme J. referred to above.

Mr. Bandivadekar has referred me to the judgment of a Full Bench of the Gujarat High Court in Nanalal Girdharlal and Another Vs. Gulamnabi Jamalbhai Motorwala and Others, , which to a great extent supports the petitioner in the instant case. But in view of the judgment of the Supreme Court in Kanta Goel Vs. B.P. Pathak and Others, , it is not possible to hold that the question is any longer open to an argument of the type advanced by Mr. Bandivadekar. For the same reason I am left with no alternative but to reject the contention of Mr. Bandivadekar relating to the necessity of all the co-owners joining in a notice u/s. 12 (2) of the Bombay Rent Act, A notice u/s. 12 (2), for similar reasons as mentioned in Kanta Goel''s case, can be issued by the Rent Controller or one of the co-heirs.

In the result, this petition must fail. Accordingly, rule is discharged with no order as to costs.

Mr. Bandivadekar requests for time to vacate the premises. The decree shall not be executed till 30th of Sept. 1981. provided that the petitioner files in this Court an affidavit on or before 30th of March 1981:

(i) giving an undertaking to this Court that he shall give vacant and peaceful possession of the suit premises to the respondent on or before 30th of Sept., 1981 and that in the meantime he shall not induct anyone in the suit premises in any capacity or otherwise par with the suit premises in any manner whatsoever; and

(ii) that he shall go on depositing the rent of the suit premises for every month by the end of that month.