M/S A.B. Corporation vs Vishnu Kumar Agrawal And 3 Others
2021 Latest Caselaw 4041 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR 
 
Court No. - 4
 

 
Case :- WRIT - A No. - 125 of 2021
 

 
Petitioner :- M/S A.B. Corporation
 
Respondent :- Vishnu Kumar Agrawal And 3 Others
 
Counsel for Petitioner :- Saurabh Srivastava
 
Counsel for Respondent :- Manish Kumar Nigam
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard Sri Saurabh Srivastava, learned counsel for the tenant-petitioner and Sri Manish Kumar Nigam, learned counsel appearing for the landlord-respondent no. 1.

2. Present petition has been filed for quashing the order dated 14.10.2019 passed by the Presribed Authority / Civil Judge (J.D.), Kanpur Nagar in Rent Case No. 2 of 2016 (Vishnu Kumar Agrwal vs. M/s A.B. Corporation and others) as well as order dated 1.12.2020 passed by the Additional District Judge, Court No. 11, Kanpur Nagar in Rent Appeal No. 50 of 2019 (M/s A.B. Corporation vs. Vishnu Kumar Agrwal and others).

3. By the order dated 14.10.2019 the Prescribed Authority allowed the release application filed by Vishnu Kumar Agrawal against the tenant-petitioner herein. The appeal filed by the tenant was dismissed by the impugned judgment dated 1.12.2020.

4. The release application was filed with the specific allegations that Vishnu Kumar Agrawal is the co-owner / co-landlord; the original owner of the property in question was late Suraj Bhan Agrawal and after his death the property was inherited by three sons namely Vishnu Kumar Agrawal (release applicant), Virendra Kumar Agrawal (eldest son and formal opposite party no. 2 in the release application) and Om Prakash Agrawal (formal opposite party no. 3 in the release application). The petitioner is tenant pursuant to the order of the allotment in the year 1965.

5. The release application was contested by the tenant on the ground that the applicant is not the landlord of the shop and as such the release application at his instance is not maintainable. It was submitted that the rent was being collected by Virendra Kumar Agrawal as Karta of HUF and therefore, the release application filed by Vishnu Kumar Agrawal was not maintainable as only Virendra Kumar Agrawal would be landlord in view of the definition of the word 'landlord' as prescribed in Section 3 (j) of the Act 13 of 1972 (hereinafter referred to as the Act).

6. The landlord and tenant relationship was found between the parties and the bonafide need and the comparative hardship was also decided in favour of the landlord by the Prescribed Authority.

7. In the appeal three points of determination were framed by the appellate court, (1) landlord and tenant relationship between the parties; (2) bonafide need; and (3) comparative hardship. On the issue of landlord and tenant relationship it was found that admittedly, after death of Suraj Bhan Agrawal the rent receipts were issued by Virendra Kumar Agrawal in the name of M/s Kashi Ram Suraj Bhan HUF and admittedly, Virendra Kumar Agrawal was the Karta of the HUF as being eldest son of Suraj Bhan Agrawal. Lower appellate court has considered the documents of OS No. 1201 of 1999, judgment dated 31.10.2005, OS No. 345 of 2009, orders dated 20.12.2012 and 6.8.2016 and found that the applicant was a co-owner / co-landlord of the property in question and the same could not be rebutted by the tenant-appellant. The appellate court had also considered the written statement filed by Virendra Kumar Agrawal, wherein he had stated that since Vishnu Kumar Agrawal is not cooperating in the litigation, therefore, it would not be proper to treat the plaintiff as co-landlord / co-owner and it was further stated by him that the release application was filed without his consultation. It was found that by the judgment dated 31.10.2005 rendered in OS No. 1201 of 1999 the applicant-landlord was found to be co-owner / co-landlord of the property in question. All the co-owerns were made formal parties in the release application and therefore, concurrent finding was returned that there was a landlord and tenant relationship between the parties. On the issue of bonafide need, it was found that the property already in possession of the landlord is being used in different manner to meet out the need of the landlord as given in the release application. It was also noticed that the assertions made by the landlord that the property in question is lying lock and is not being used, could not be disputed by the tenant. It was further found that no effort was made by the tenant to search out any other alternative accommodation. Hence, a concurrent finding on comparative hardship was also recorded in favour of the landlord.

8. Challenging the aforesaid judgments, main contention of learned counsel for the petitioner is that the release applicant was not the landlord in view of definition of Section 3(j) of the Act. He had drawn attention to paragraph 4 of the written statement filed by Vishnu Kumar Agrawal in OS No. 1201 of 1999 to submit that the plaintiff is not the co-landlord and defendant no. 1 in the said suit Virendra Kumar Agrawal was admitted as a sole landlord and therefore, the release application was not maintainable. He has also advanced his arguments on the issue of bonafide need and comparative hardship.

9. Per contra, Sri Manish Kumar Nigam, learned counsel for the respondent submitted that concurrent finding has been recorded by both the courts below that the applicant was the landlord for the purpose of filing of the release application and is covered under the definition of 'landlord' as given in Section 3(j) of the Act. Attention was drawn to the findings recorded by the lower appellate court, wherein contention raised by learned counsel for the petitioner were dealt with specifically. The finding returned by the lower appellate authority on the point of determination no. 1 regarding landlord and tenant relationship were specifically dealt with in paragraphs 9 to 19. In support of his arguments learned counsel for the respondent has placed reliance on judgments in the cases of Smt. Hamidan vs. Vth Addl. District Judge, Allahabad 1983 ARC 405 (paragraph 7), Gopal Das and another vs. Ist Additional District Judge, Varanasi and others 1987 (1) ARC 281 (paragraph 17), Om Prakash Mittal vs. Vth Addl. District Judge, Ghaziabad and others 2000 (2) ARC 111 (paragraph 16) and Board of Basic Education, U.P. Allahabad and others vs. VIth Addl. District & Sessions Judge, Kanpur Nagar and others 2007 (3) ARC 591 (paragraph 18).

10. I have considered the submissions and have perused the record.

11. Before proceeding further it would be appropriate to refer some case laws. Paragraph 7 of Smt. Hamidan (supra) is quoted as under:-

"7. Moreover, as has been held by the Supreme Court in Ambika Prasad v. Ram Ekbal Rai AIR 1966 SC 605 (SC) title cannot pass by mere admission. Apart from the admission in the aforesaid affidavit no other evidence about the private settlement referred to therein seems to have been produced. The petitioner appears to have set up a case that in pursuance of some gift made by her husband she alone was entitled to the house in question. That case has not been believed by the authorities below. Indeed in her affidavit filed subsequently on which reliance has been placed even by counsel for the respondent No. 3 the petitioner had given up her case that she was the exclusive owner of the house in question. In the absence of a valid gift in favour of the petitioner and the admission made by her in the proceedings for mutation not being relevant for determination of the question of tile, it was apparent that on the death of Mohd. Yaqub the house in question devolved on all his heirs, namely, the petitioner and respondents 4 to 7. As such all of them became co-owners of the house in question. Since in their capacity as co-owners of the house they were all entitled to realise rent from the respondent No. 3, they would be co-landlords also. It is, however, open to even one of the several co-landlords to realise rent from the tenant on behalf of the co-landlords and normally it is convenient for the tenant also to pay rent to one of the several co-landlords. In the absence of any finding as to ouster the petitioner even if, she was realising the rent exclusively will be deemed to be realising it not only on her behalf but on behalf of the other co-landlords also. This being the legal position the assertion of the petitioner in one of her affidavits that she was realising rent herself and her assertion in the other affidavit that she was realising it on behalf of her sons would not be material. In Smt. Kamta Goel v. B.P. Pathak and others AIR 1977 SC 1599, while dealing with almost a similar question under the Delhi Rent Control Act it was held by the Supreme Court:

"Where a landlord who had let out his premises to a tenant, dies and his heirs succeed to his estate, one co-heir to whom the rent is being paid by the tenant and who receives it on behalf of the estate, would be landlord for the purpose of the Act. The co-heirs 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 for eviction against the tenant quo landlord."

As regards Rule 15(2) of the Rules framed under the Act, it was held in Roop Narain v. Radha Mohan Katiyar 1980 UP (2) RCC 212 that a non-petitioning co-landlord can be arrayed as proforma respondent and omission to sign application by a landlord, in such a case would be of no consequence. Reliance in the case of Roop Narain (supra) was placed on an earlier case of this Court in Yogesh Saran v. Jyoti Prasad and others 1978 ARC 408, wherein it was held that the omission to sign the application by all the landlords is of a formal character and an application made by a landlord cannot be rejected on this basis. In Sangram Singh v. Election Tribunal, Koth and another AIR 1955 SC 425 it was held:

"Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it."

(emphasis supplied

12. Paragraphs 12 and 17 of Gopal Das (supra) are quoted as under:-

"12. In view of these decisions, there can, therefore, be little doubt as to the maintainability of the action for eviction brought by one co-owner without impleading the other co-owners. The view taken in Devi Charan's case (1980 UPLT NOC 143) cannot be said to have laid down the correct law and it is overruled. The view taken in Ranga Nath's case (1984 All LJ 455) is correct and we reiterate the same.

17. So far as the applicability of this Rule to the present case is concerned, there is no problem. Murlidhar Sah who has brought the action for eviction of the premises in question is undoubtedly the landlord. He has signed the application. He alone is competent to sign the application. However, we may point out that the requirement of Rule 15(2) that an application for release of premises owned by co-owners should be signed by all co-owners would be invalid. One co-owner is competent to maintain an action for eviction of the tenant of the entire premises, since he can be considered as a landlord within the meaning of Section 3(j) of the Act. One co-owner alone would be competent to sign such an application."

(emphasis supplied)

13. Paragraphs 16 and 17 of Om Prakash Mittal (supra) are quoted as under:-

"16. The petitioner's main contention is that a landlord is one to whom rent is being paid de facto as per the definition of landlord in the Act. Argument ignores several factual aspects.

17. Whether mere fact that somebody de facto realizes rent, will determine status, is not a correct proposition of law. It has to be found out whether rent is being realised in his independent right and capacity as landlord or the same is being realised in representative capacity for the benefit of another person. If rent is being collected in representative capacity for the benefit of actual owner, then it will be the owner who shall be the landlord. Otherwise a servant or a brother authorised by original owner to realize rent on his behalf from tenant will become landlord. Law does not contemplate such a situation."

(emphasis supplied)

14. Paragraph 19 of Boorugi Mahadaev & Sibs (M/s.) & Anr. vs. Sirigiri Narasing Rao and Ors 2016 (1) ARC 490 is quoted as under:-

"19. It is also now a settled principle of law that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. (vide Sheela & Ors. vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375)."

(emphasis supplied)

15. Paragraphs 11, 12, 13, 14, 15 and 17 of Manoj Kumar vs. Suman Prakash 2019 (3) ARC 614 are quoted as under:-

11. On perusal of record, I find that the suit has admittedly been filed by Suman Prakash. It was admitted in the replication that the property is of HUF of which plaintiff-respondent is the Karta and he is entitled to file the present suit. It is also pertinent to note that no other person has come forward to claim the ownership or landlordship in the present case. The status of the defendant-petitioner herein as tenant is also not in dispute. It is settled law that in the rent control matters the landlord-tenant relationship is to be seen. It is also settled law that one co-owner is entitled to initiated the proceedings against the tenant. It may also be noticed that it is not a case of property dispute where filing of the suit on behalf of Karta or any other coparcener may be claimed to have material effect on the proceedings. Suffice to note that a coparcener is any of several people who share an inheritance.

12. In Black's Law Dictionary (Eighth Edition) "coparcener" is defined as "A person to whom an estate descends jointly, and who holds it as an entire estate: a person who has become a concurrent owner as a result of descent" and "coowner" is defined as "A person who is in concurrent ownership, possession, and enjoyment of property with one or more others; a tenant in common, a joint tenant, or a tenant by the entirety."

13. As per Legal Glossary (2001 Edition) "Karta" means (1) author; (2) manager; (3) principal.

14. Thus, broadly speaking a karta is a person who is a concurrent owner as a result of a descent and is managing the property as principal or say, manager for the benefit of all members of the HUF. Thus, his status, within the family may be different, if questioned by any coparcener but his status will be that of a concurrent owner or coowner.

15. In the rent control matters where the proceedings are summary in nature and only landlord-tenant relationship is to be seen. Thus, the law as applicable in a case of co-owner in rent control and eviction proceedings will prevail. A reference made be made to a decision of the Apex Court in Mohinder Prasad Jain vs. Manohar Lal Jain, 2006 (2)SCC 724, para 10 and 11, relevant extract of which are quoted as under:

"10. This question now stands concluded by a decision of this Court in Indian Umbrella Mfg. Co. v. Bhagabandei Agarwalla, 2004 (3) SCC 178 wherein this Court opined (SCC p.183 para 6):

"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. 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."

11. 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..................................."

17. A reference was also be made to judgment of Hon'ble Apex Court in the case of Boorugu Mahadev and sons and another vs. Sirigiri Narasing Rao and others, (2016) 3 SCC 343, para 18 whereof is quoted as under:

"It is also now a settled principle of law that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. (Vide Sheela v. Firm Prahlad Rai Prem Prakash (2002) 3 SCC 375)."

(emphasis supplied)

16. Paragraphs 40 and 41 of Apollo Zipper India Limited vs. W. Newman and Company Limited 2018 (6) SCC 744 are also quoted as under:-

40. It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the Rent Laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.

41. 41. In other words, the burden of proving the ownership in an eviction suit is not the same like a title suit. (See Sheela v. Firm Prahlad Rai Prem Prakash 2002 (3) SCC 375, para 10 at SCC p. 383 and also Boorugi Mahadev & Sons & Anr. vs. Sirigiri Narasing Rao & Ors. 2016 (3) SCC 343, Para 18 at page 349 )."

(emphasis supplied)

17. On perusal of record I find that the status of the tenant-petitioner herein as tenant in the property in question is not in dispute. The main argument of learned counsel for the tenant-petitioner is that the applicant is not the landlord as the rent was being collected by Virendra Kumar Agrawal as Karta of the HUF and only he could have filed release application. It is not in dispute that in such matters the term 'landlord' is used in different meaning and if one co-owner files release application, the same, even without impleading the other co-owners, would be maintainable. In the present case, the other co-owners / co-landlords were impleaded as formal parties and even Virendra Kumar Agrawal has filed his written statement. It is to be noted that he never disputed the release of the shop in question in favour of Vishnu Kumar Agrawal. He never challenged the order of the Prescribed Authority that the release application has wrongly been allowed in favour of the applicant-landlord Vishnu Kumar Singh. He is also not before this Court opposing the release of the shop in favour of Vishnu Kumar Agrawal. It is also not in dispute that the original owner / landlord was Suraj Bhan Agrawal and his three sons namely, Vishnu Kumar Agrawal, Virendra Kumar Agrawal and Om Prakash Agrawal inherited the property. It is also not in dispute that the rent is being collected by Virendra Kumar Agrawal only as Karta of the family (HUF) for the benefit of all and in the other original proceedings it was held by the civil court that he is co-owner / co-landlord of the property in question.

18. In such view of the matter, for the discussions made hereininabove, I do not find any good ground to interfere in the orders impugned herein. The courts below have recorded concurrent findings of fact on bonafide need as well as on comparative hardship. The scope of interference under Article 226 of the Constitution of India on such finding of fact is extremely limited. Therefore, I do not find any good ground to entertain present petition on the ground of tenant and landlord relationship in the present case between the parties and that it requires any interpretation of Section 3(j) of the Act. The law is already settled on this issue.

19. Status of petitioner as tenant is not in dispute, therefore, if other co-owner / co-landlord have not come forward to challenge the release in favour of one, who, admittedly, has also inherited the property, no relief can be granted on this ground to the tenant that the person, who was receiving the rent has not filed the release application.

20. In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed.

21. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:

(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.9.2021;

(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks;

(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of copy of this order.

(4) The tenant-petitioner shall pay damages @ Rs. 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.9.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;

(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;

(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;

(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.

(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.

22. There shall be no order as to costs.

Order Date :- 19.3.2021

Lalit Shukla