R. Perianna Asari v. Jayakumar — 1997 DIGILAW 46 (MAD)

Judgment :- 1. The tenant is the revision petitioner. The petition for the eviction was filed on the ground of willful default and owners occupation. The trial court ordered eviction on both the grounds. But the appellate court ordered eviction only on the ground of willful default, holding that the ground of owners occupation was not proved. The original tenant died during the pendency of this revision and his son has been brought on record as legal representative as per order dated 20.2.1996 in C.M.P. 8770/94 by this Court. There can be no difficulty in holding that the concurrent finding on the question of wilful default by the authorities below cannot be assailed or set aside by this Court until the findings are shown to be perverse. No findings of the courts below has been shown to be perverse before me by the counsel for the petitioner (tenant). Therefore, the revision has to be dismissed. 2. But however, the counsel for the petitioner wanted to raise two preliminary objections regarding the maintainability of the very petition for eviction. His first objection was that what was leased to the tenant was a blacksmithy shop, which will be governed squarely by Section 30(iii) of the Act and therefore, exempts only the operation of the Act. Section 30(iii) of the Act says any lease of a building under which the object of the tenant is to run the business or industry with the fixtures, machinery, furniture or other articles belonging to the landlord and situated in such building. The learned counsel wants to rely upon this sub clause and raise a point that the object of the tenant is to run the business or industry with the other articles belonging to a landlord and situated in such a building. The second point the learned counsel wants to raise as preliminary objection is that the petition is not maintainable because the same has been filed by only one co-owner and not by the other co-owners. The learned counsel for the respondent brought to my notice the case reported in “ Pathen Murtazakhan Dadamkhan v. Parthan Pirkhan Amdumiyan ” (A.I.R. 1993 Supreme Court, Page 1750) where a new plea based on Section 3-A was sought to be raised for the first time in the High Court. The learned counsel for the respondent brought to my notice the case reported in “ Pathen Murtazakhan Dadamkhan v. Parthan Pirkhan Amdumiyan ” (A.I.R. 1993 Supreme Court, Page 1750) where a new plea based on Section 3-A was sought to be raised for the first time in the High Court. The High Court rightly did not permit the appellants to raise the plea of a deemed tenancy as the said claim needs investigation, based on factual foundation which was lacking. However, I permitted the counsel for the petitioner to raise these preliminary issues and also asking to support such issues on the facts available in the present case. 3. So far as facts of this case is concerned, the learned counsel would refer to the evidence of P.W. 1 who says (Tamil) He also relied upon Exhibit A.5 to support this contention that what was leased to the tenant was not only the building but also acessories (Tamil) In support of his next contention regarding the co-owners, he fairly conceded that he has not raised the point of co-owner before the lower Court. He also did not raise the point regarding the composite lease either before the Rent Control Authority or the Appellate Authority. However, he will refer to the cross examination of P.W. 1, wherein P.W. 1, has deposed that the suit property was given to his father by a will. His father was looking after the property till his death. P.W. 1 has two brothers and they are not partitioned the property. He also said that he will be entitled to 1/3 share as per the will. P.W. 1, has further deposed that he has been managing the family and he is receiving the rent. 4. Relying upon the evidence of P.W. 1, the learned counsel for the petitioner wants me to come to the conclusion that what was leased was a shop along with the accessories. Unfortunately, neither he nor the documents and the deposition available in this case is able to give particulars about the accessories, which were supposed to have been given along with the shop to the tenant at the time of lease. In the absence of any particulars, it is not possible for this Court to come to the conclusion that what was leased was not merely a shop but also something, which will attract the provision of Section 30(iii) of the Act. In the absence of any particulars, it is not possible for this Court to come to the conclusion that what was leased was not merely a shop but also something, which will attract the provision of Section 30(iii) of the Act. 5. The learned counsel for the respondent brought to my notice the decision reported in K. Ramachandra Chettiar v. G. Lakshminarayanaswami Chettiar” (80 L.W. 487), wherein this Court has held as follows:— “In this present case, the document itself goes to show that what was leased was not a going concern as such. It is true that it was contemplated that the defendant would run an oil mill in the premises. It is also true that certain machinery for the above purpose had been given possession of with the building. But, there is nothing to show that all that was required for running an oil mill were the items given possession of by the plaintiff to the defendant”. Therefore, it is clear that apart from merely relying upon the evidence of P.W. 1, if the tenant wants to take advantage of Section 30(iii) of the Act, he should have proved or cross-examined the P.W. 1 to establish his present case of composite lease. 6. The learned counsel for the petitioner relied upon a case reported in “Bombay Burmah Trading Corporation Ltd. v. A.T. Narayanaswami Pillai” (94 L.W. 334), wherein it has been held as follows:— “The idea behind this provision is simple. Leases of buildings, as a general rule, are covered by the Act. The Act applies even to leases of non-residential buildings, as business premises. But the Legislature wished to make a distinction between lease of a building without more and lease of an industrial or business complex in which the building is only one of the items which figures. The latter is not so much a lease of a building, as a lease of a Commercial asset. The exception is granted therefore to a lessee which comprises not only a building, but includes certain fixture, machinery, furniture or other articles belonging to the landlord and which are situated in the building, and which would aid the tenant in carrying on the particular business or industry for the carrying on of which the tenancy has been entered into. The scope of this exemption is often described by the phrase “composite lease”. The scope of this exemption is often described by the phrase “composite lease”. But this case will hot apply to the facts of this case because what was leased out in that case was a cinema theatre and the dictum laid down in that case was that it is not necessary that all the items mentioned in Section 30(iii) of the Act should be there. There cannot be any dispute regarding such a proposition. Therefore, on the question of composite lease not only the facts are lacking in this case also prima facie I am of the view that this is not a composite lease to be attracted by Section 30 (iii). Consequently, the argument on the point of composite lease must fail. 7. For the next submission on the question of maintainability of the petition filed by one co-owner, the learned counsel relied upon various decisions, which I think it necessary to consider. He relied upon the case reported in K.M. Kasim v. P. Thangavelu (1981 T.L.N.J. Page 297), where it has been held as follows:— “In this case the co-owner had himself entered into the witness box and deposed with reference to the need of the premises for the purpose of his personal occupation. Under the circumstances, it cannot be said that the consent of the co-owner had not been obtained. It has been held that a co-owner need not actually be made a party to the proceedings and the mere obtaining his consent for filing an application is sufficient”. But this case is not applicable to the case before us. In that case as the co-owner had himself entered the witness box and deposed with reference to the need of the premises for the purpose of his personal occupation. I do not think these facts will apply to the facts of the present case. 8. The next case relied upon by him is V.P. Abdul Rahman v. Ganga Chandrasekaran 91 L.W. 519, for the proposition. I do not think these facts will apply to the facts of the present case. 8. The next case relied upon by him is V.P. Abdul Rahman v. Ganga Chandrasekaran 91 L.W. 519, for the proposition. “The intention appears to be that a co-owner shall not without the consent of others, file an application for eviction, and if a question arises as to whether he had obtained any such consent, which should be established in the alternative, even in the course of the proceedings and before eviction, it would be ingenuous to extend the intendment of the prescription as meaning that the previous written consent should be even before filing a petition to obtain an order for eviction. The entitlement of the owner for eviction of a tenant referred to in Sub Section 8 should not be construed literally but liberally. If, therefore, the written consent of the co-owners is obtained in the course of trial and before an order for eviction is obtained and if that written consent of the other co-owners sufficiently reflects the position that they gave the consent even on or about the time when the petition was filed, the Court, which appreciates such evidence, could come to the conclusion that there has been such a previous consent as required under Sub Section 8”. Here also is a case, where the consent was obtained later, after the point was raised before the lower authority. 9. The next case relied upon by him is M.V. Swami v. Aneer Basha (1995-I-M.L.J. Page 53) wherein this Court held as follows:— “After referring to the decision in Sri Ram Pasricha v. Jagannath and others (A.I.R. 1976 S.C. 2335) the Supreme Court observed that the law had been put beyond doubt in that decision and that the absence of the other co-owner on record would not disentitle one of the co-owners from suing for eviction. In view of the aforesaid decisions of the Supreme Court which clearly laid down that the presence of the other co-owners is unnecessary, the objection in that regard raised by the petitioner cannot be countenanced at all”. 10. Finally, the learned counsel for the petitioner relied upon the case reported in S.K. Sattar SK. Mohd. In view of the aforesaid decisions of the Supreme Court which clearly laid down that the presence of the other co-owners is unnecessary, the objection in that regard raised by the petitioner cannot be countenanced at all”. 10. Finally, the learned counsel for the petitioner relied upon the case reported in S.K. Sattar SK. Mohd. v. Gundappa Ambadas” ((1996) 6 SCC Page 373) and in particular he relied upon paragraph 37 of the judgment, wherein it has been held as follows:— “In view of the above discussion, it is obvious that the law with regard to the splitting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessor contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessors from partition the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property”. In my view, this judgment cannot come to the aid of the petitioner because in as much as this is a case where the tenant has purchased the property from the other co-owner. 11. On the other hand, the learned counsel for the respondent brought to my notice the case reported in Sri Ram Pasricha v. Jagannath (A.I.R. 1976 Supreme Court page 3335. In particular paragraph 15 reads as follows:— “There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other plaintiffs. Such a plea should have been raised, for what it is worth at the earliest opportunity. It was not done. Secondly, the relation between the parities being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a 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 of other co-owners as such”. 12. Another case relied upon by the learned counsel for the respondent is Kanta Goel v. B.P. Pathak (A.I.R. 1977 Supreme Court, page 1599), wherein the following observations have been made in paragraph 6 and 7. “Nor do we set much store by he submission that the 1st respondent is not a landlord, being only a co-heir and the will in his favour having been disputed. 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. “Nor do we set much store by he submission that the 1st respondent is not a landlord, being only a co-heir and the will in his favour having been disputed. 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. Section 2 (e) of the Act defines ‘landlord’ thus: 2(e) ‘Landlord’ means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant”. “Tenant”, by definition (Sec. 2(1)) means a any person whom, or on whose account or behalf the rent of any premises is payable. Read in the context of the Rent Control law, the simple sense of the situation is that there should be a building which is let. There must be a landlord who collects rent and a tenant who pays it to the one whom he recognizes as landlord. The complications of estoppel or even the concepts of the Transfer of Property Act need not necessarily or inflexibly be imported into the proceedings under the rent control law, tried by special Tribunals under a special statute. In this case, rent was being paid to the late Dass who had let out to the appellant, on the death of the former, the rent was being paid to the 1st respondent who signed the receipts in his name and added that it was on behalf of the estate of the deceased Dass. At a later stage the rent was being paid to and the receipts issued by the 1st respondent in his own name. Not that the little change made in the later receipts makes much of a difference, but the fact remains that the tenant in this case had been paying the rent to the 1st respondent. Therefore, the latter fell within the definition of ‘landlord’, for the purpose of the Act. We are not impressed with the investigation into the law of real property and estoppel between landlord and tenant. Shri Nariman invited us to make. Therefore, the latter fell within the definition of ‘landlord’, for the purpose of the Act. We are not impressed with the investigation into the law of real property and estoppel between landlord and tenant. Shri Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premises. The 1st respondent, together with the other respondents constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords 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. 7. This Court, in Sri Ram Pasricha (1976-4 SCC 184):( AIR 1976 SC 2335 ) clarified that a co-owner is as much an owner of the entitled property as any sole owner of the property is: “Jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property.. 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 S. 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of S. 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the defendants. That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond double. 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. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner”. 13. Finally, learned counsel for the respondent relied upon the decision in Bakhtawar Singh v. Gurdev Singh ((1996) 9 SCC page 870). We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner”. 13. Finally, learned counsel for the respondent relied upon the decision in Bakhtawar Singh v. Gurdev Singh ((1996) 9 SCC page 870). In that case, it has been found that even on filing of eviction application the tenant neither deposits the rent in the Court of the Rent Controller on the date of first appearance nor pleads a good case for non-payment, on the other hand files a counter affidavit before the Supreme Court that till then he had been rent to the former Karta, it must be held to be wilful default. In such circumstances, the Supreme Court ordered ejectment of the tenant. It is also seen from the facts of the case that the two co-owners of the petitioner, who filed the petition for eviction entered witness box and examined themselves and the dispute between the co-owners has been straightened. The Supreme Court found that the Rent Controller did not fully grasp the legal situation in the matter and wrongly denied eviction of the respondent on that score. I also had an occasion to consider the question as to whether a co-owner is entitled to file an application for eviction and I have been found in C.R.P. No. 1263 of 1992 dated 10.1.1997 (P.A. Syed Gaffer v. Benry Badja Amidee and another ” as follows:— “One other point raised by the counsel for the petitioner is that a co-owner cannot file a petition for eviction on the ground of owners occupation and the counsel relies upon the judgment reported in 1980 I MLJ 274 (A. Alagiyanathan v. M. Swaminatha Pillai ), wherein it has been held that where there is more than one landlord for a building, it must necessarily be held that any action taken against the tenant of the building seeking his eviction must be instituted by all the landlords, or atleast, by one or more of them on behalf of and for the benefit of all of them. As against this decision, counsel for the respondent brings to my notice another decision reported in the same volume at page 534 ( Vasudevan v. Ramachandran ), wherein it has been held that every co-owner is in a real sense, the absolute owner of the entirely of the interests in the joint property. In this sense, co-owners is by no means the agent of the other co-owners in respect of any interest in the property. On the incontrovertible position in law of co-owners who must be distinguished from agents properly so called Section 10(8) has absolutely no application to the petition filed in the present case for eviction of the tenant. I am inclined to take the latter view of V. Balasubrmaniyan, J. and hold that the landlord in the present revision petition is one of the co-owners who is entitled to file the petition for eviction on the ground of owners occupation. It is also not proved before the authorities below that the other co-owners have been objecting to one of the co-owners filing the petition for eviction on any ground whatsoever. 14. One more authority cited before me is Alagiyanathan v. Swaminatha Pillai (1980 I. M.L.J. page 274). This authority is relied upon by the counsel for the petitioner for the proposition that where there is more than one landlord for building, it must necessarily be held that any action taken against the tenant of the building seeking his eviction must be instituted by all the landlords or at least by one or more of them on behalf of and for the benefit of all of them. 15. The sum and substance of these decisions is to the effect that one co-owner can maintain the petition for eviction provided he acts on behalf of the other co-owners, and there is no objection from the other co-owners also. It is certainly necessary for the tenant to question the right of the co-owner and raise a point before the Court of the first instance, so that the landlord may satisfy the Court that he is acting either on behalf of all the co-owners or that he has got consent of all of them or that there has been no dispute between any of the co-owners. In this case the tenant having not raised the point before the lower courts, cannot now at this stage contend that one co-owner alone cannot maintain this petition. On facts I also found that during the pendency of R.C.A. 21/91, a memo was filed by the father of the present revision petitioner, the original tenant to the effect that the rents have been paid to the counsel for the respondent/petitioner through memos filed into Court between 16.11.1987 and 5.11.1990, amounting to a sum of Rs. 6,000/-. Therefore, it is not difficulty to come to the conclusion that even before the Appellate Authority during the pendency of the proceedings, the revision petitioners father has recognised the right of landlord before the Court as a person entitled to receive the rent. 16. In this view, I reject the preliminary objections raised by the counsel for the petitioner. As I have already found that the question of wilful default has been proved and accepted by both the courts below, this Revision is dismissed, Consequently, C.M.P. No. 5276 of 1992 is also dismissed. No Costs. Before parting, I feel a word of praise and pat to the young counsel Mr. A. Muthukumar who argued fairly and forcibly must be recorded.