Tilak Raj and others vs Romesh Chander and others

Janak Raj Kotwal, J.—Question raised in this revision petition by the petitioners/defendants is whether the suit for eviction from two shops and

recovery of the arrears of rent filed against them by four real brothers, has abated due to the death of one of them as his legal representatives were

not brought on record.

Heard. I have perused the record including copies of the pleadings, which were produced at bar by respondents' counsel.

The suit for eviction and recovery of arrears of rent was filed by respondents and their fourth brother, Mohinder Kumar Goswami. Eviction of

defendants has been sought on the ground of default in payment of rent. As per the plaint, plaintiffs' case, briefly and inter alia is that the two shops

were taken on rent by defendant No. 1 from them through plaintiff No. 1, who at a later stage stopped paying rent to the plaintiffs and handed over

possession of one shop to defendant No. 2 and of the other to defendant No. 3.

Plaintiff No. 2, Mohinder Singh, died during the pendency of the suit. His legal representatives have not been made party to the suit after his

death. The defendants, therefore, moved an application claiming that suit has abated as the right to sue does not survive to the remaining plaintiffs

alone. Learned trial court, however, vide order dated 12.03.2010 held that suit does not abate taking the view that since all the plaintiffs including

the deceased claim to be the joint owners of the two shops, the right to sue survives to the other plaintiffs. Feeling aggrieved, the defendants have

impugned the order passed by the learned trial court in this revision petition.

Rules 1, 2 and 3 of Order 22 C. P. C. are relevant on the point and need to be read in juxtaposition. Rule 1 provides that the death of a plaintiff

or defendant shall not cause the suit to abate ' if the right to sue survives'. Under Rule 2 inter alia where in a suit there are more plaintiffs than one

and one of them dies during the pendency of the suit but the 'right to sue' survives to the surviving plaintiff or plaintiffs the death will have no effect

on the suit, which shall proceed at the instance of the remaining plaintiff or plaintiffs. Under Rule 3 if, however, in a similar situation the 'right to sue'

does not survive to the surviving plaintiff or plaintiffs alone the court on an application made in this behalf shall cause the legal representatives of the

deceased plaintiff impleaded as a party to the suit and proceed. Such application may be made by the surviving plaintiff(s) or the legal

representatives of the deceased. If, however, no application for impleadment of legal representatives is made within the time prescribed by law the

suit shall abate so far as the deceased plaintiff is concerned and such limited abatement shall have the effect of causing abatement of the entire suit

as the right to sue does not survive to the surviving plaintiff or plaintiffs alone.

The primary question involved in this revision petition, therefore, would be whether after the death of plaintiff No. 2 the right to sue survives to

the surviving plaintiffs or not. Suit will not abate and the trial court should proceed with the trial if the right to sue survives to the surviving plaintiffs.

The suit, however, shall abate if the right to sue does not survive to the surviving plaintiffs alone as the legal representatives of the deceased have

not been impleaded as party to the suit.

It is important to note that Rules 1, 2 & 3 of Order 22 CPC contemplate the survival of 'right to sue' to the surviving plaintiff or plaintiffs. The

right to sue means the right of a person to bring a suit asserting a right to relief on accrual of a cause of action for filing the suit. The determining

factor, therefore, is whether the suit was maintainable had it been filed by the surviving plaintiffs without joining the deceased plaintiff at the time of

filing of the suit. The plaint in the suit filed by the plaintiffs on its plain reading would show that the plaintiffs claimed to have jointly constructed the

suit shops and further that these shops were taken on rent by defendant No. 1 from them through plaintiff No. 1. All the four plaintiffs, therefore,

claimed to be the joint owners and landlords qua the suit shops. It is well settled that in case of joint ownership of a property one co-owner acts on

behalf of all the other co-owners in all legal transactions and actions relating to the said property. This is based upon the doctrine of agency. One

co-owner can rent out the property on behalf of all the co-owners, as is said to have been done in this case, and similarly one co-owner can

maintain a suit for eviction or recovery of the arrears of rent on behalf of all the co-owners. In doing so one co-owner acts on his behalf as well as

on behalf of other co-owners. Legal position in this regard has been settled by the Supreme Court in India Umbrella Manufacturing Co. &

Ors. v. Bhagabandei Agarwalla, (2004) 3 SCC 178 referred to in Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 1 RCR(Rent)

I may quote paragraphs 9 and 10 of the reporting in Mohinder Prasad's case:

This question now stands concluded by a decision of this Court in India Umbrella Manufacturing Co. & Ors. v. 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 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.:

To conclude thus, all the plaintiffs claimed to be the joint owners of the suit shops, having been rented out to defendant No. 1 through one of

them, so the suit for eviction could have been filed by one of them or some of them without joining the others as plaintiffs. As the surviving plaintiffs

could have filed the present suit even without joining the deceased plaintiff, the right to sue survives to them after the death of the deceased in terms

of Rule 2 Order 22 C.P.C. The suit, therefore, will not abate after the death of plaintiff No. 2.

Viewed thus, this revision petition has no merit and is dismissed.

Disposed of.