Allahabad High Court
Lavesh Kumar Paliwal vs Mohd Shaqil Quraishi on 21 February, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 03.02.2023
Delivered On:- 21.02.2023
Case :- CIVIL MISC REVIEW APPLICATION No. - 62 of 2022
Applicant :- Lavesh Kumar Paliwal
Opposite Party :- Mohd Shaqil Quraishi
Counsel for Applicant :- Arvind Srivastava
Counsel for Opposite Party :- Kamlesh Kumar Tiwari
Hon'ble Siddharth, J.
1. Heard Sri Arvind Srivastava, learned counsel for the applicant; Sri Kamlesh Kumar Tiwari, learned counsel for the sole-respondent and learned Standing Counsel for the State.
2. This review application has been filed on behalf of Dr. Lavesh Kumar Paliwal, tenant-petitioner, claiming that co-landlord of the premises in dispute, Shamim Quraishi, had filed objection before Prescribed Authority and also under Order 21, Rule 29 C.P.C before the Prescribed Authority (Annexure-4 to the writ petition), raising objection to the maintainability of release application.
3. Counter affidavit has been filed by counsel for the land-lord- respondent wherein he has stated that such an application was filed under Order 1, Rule 10 C.P.C / 151 C.P.C but it w as dismissed by the prescribed authority on 08.04.2016. The aforesaid order was not challenged by the third party before any Court of law and it became final. He has further submitted that the objection under Order 21, Rule 29 C.P.C was filed by Shamim Quaraishi on 18.04.2019 in execution proceedings.
4. This Court after hearing the rival contentions, finds that the alleged co-owner, Shamim Quraishi, has filed objection in execution proceedings. The fact that an application was filed by third party under Order 1, Rule 10 C.P.C / 151 C.P.C was dismissed on 08.04.2016 has not been disclosed in the review application. The proceedings for release of the shop are pending since the year 2018 and the writ petition was decided on 22.12.2021.
5. The issue raise in this review petition has already been considered by this Court in paragraph 13 of the writ petition as follows :-
"13. The first argument of the learned counsel for the tenant/petitioner is that in the release application, all the co-owners should have been made party and their consent was required for maintaining the release application. Reliance on the judgement of the Apex Court in the case of Mangal Builders and Enterprises (supra) has been made. In this case in the suit for eviction was instituted by two co-owners out of three, one co-owner raised objection that the suit against the tenant is without his consent. The Apex Court held that every co-owner has ownership of the entire property which in the absence of partition would militate against the maintainability of the suit for eviction against the tenant. The benefit of the aforesaid judgment of the Apex Court cannot be extended to the tenant/petitioner since in the present case, no co-owner of the landlord/respondent filed any objection to the maintainability of the release application nor he came forward claiming his ownership. The judgement in the case of Tmt. Kasthuri Radhakrishnan & Ors. (supra) is relevant for the present case wherein the Apex Court has held in paragraph no. 35 as follows :-
35) Likewise, so far as issue pertaining to joinder of all co-owners in eviction petition filed against the tenant under the Rent Laws is concerned, the same also remains no more res Integra and stands settled by several decisions of this Court. In Dhannalal vs. Kalawathibai Ors., (Supra), this Court took note of all case laws on the subject and explained the legal position governing the issue. Justice R.C.Lahoti (as His Lordship then was) speaking for the Bench held in paragraph 16 as under :
"16. It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath,(1976) 4 SCC 184 Kanta Goel v. B.P. Pathak, (1977) 2 SCC 814 and Pal Singh v. Sunder Singh, (1989) 1 SCC 444 that one of the co-owners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. When the property forming the subject-matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other co- owners if such other co-owners do not object. In Sri Ram Pasricha case reliance was placed by the tenant on the English rule that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail; the requirement must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectfully dissented from the rule of English law. This Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being "if he is the owner", the expression as employed by Section 13(1)(f) of the W.B. Premises Tenancy Act, 1956."
6. Hence, the review application is devoid of merit and is hereby rejected. No order as to costs.
7. Learned counsel for the review applicant has prayed that the review applicant may be granted 15 days time to vacate the premises in dispute.
8. Therefore, it is hereby directed that in case the review applicant submits an undertaking before the trial court within three days that he will vacate the premises within 15 days, the executing Court will not execute the decree against the review applicant for a period of 15 days from the date of filing of the undertaking.
9. In case of failure to comply this order, it shall be open for the executing Court to execute the decree in accordance with law, forthwith.
Order Date :- 21.02.2023
Rohit
