Delhi High Court
Sheikh Mohd Zakir & Ors. vs Shahnaz Parveen & Ors. on 13 July, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 779/2012
Date of Decision: 13.07.2012
SHEIKH MOHD ZAKIR & ORS. .... PETITIONERS
Through: Mr. S.H.Nizami, Advocate.
Versus
SHAHNAZ PARVEEN & ORS. ....RESPONDENTS
Through:
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. The present petition has been preferred against the order of the Ld. Rent
Control Tribunal dated 06.03.2012 whereby the Ld. Tribunal affirmed
the dismissal of application filed by the petitioners under Order 1 Rule
10 Code of Civil Procedure (CPC) by Ld. Additional Rent
Controller(Central) vide order dated 25.08.2011.
2. The facts giving rise to the present petition in brief are that the
respondent no.1 filed an eviction petition under Section 14(1)(e) r/w
Section 25-B of Delhi Rent Control Act (hereinafter referred as
'DRCA') against the tenants i.e. respondent nos. 2 & 3 stating therein
that she has 10/12th share in property no. 498-E, Gali Teeke Wali,
Churiwalan, near Jama Masjid, Delhi and she requires the premises
bonafide for herself and her family members who are dependent upon
her and she has no other reasonable and suitable residential
accommodation available to her.
3. Respondent nos. 2 & 3 herein filed an application for leave to defend to
contest the eviction petition. During pendency of the petition, an
application under Order 1 Rule 10 CPC was moved by the petitioners
claiming themselves to be the co-owners of whole of the undivided
property in question and it was alleged that their presence was very
much necessary for adjudication of the controversy between the parties.
The Ld. ARC dismissed the said the application.
4. Thereafter, the petitioners filed appeal invoking Section 38 of the
DRCA before the Ld. Tribunal.
5. While dismissing the appeal filed by the petitioners The Ld. ARC
observed as under:
"15- As regards, the plea that respondent no.1 after getting the
premises vacated may sell the same, the respondent no.1 being
only a co-owner of undivided share of the property even
otherwise cannot sell the property without the consent of the
other co-owners. Under the circumstances the apprehension of
appellant is unfounded. So far as the adjudication of controversy
between the parties, the presence of appellant is not required. As
such the impugned order does not suffer from any infirmity which
calls for interference. Accordingly, the appeal is dismissed."
6. The impugned order has been challenged in the present proceedings
by the petitioners on the ground that respondent no. 1 is not the
exclusive owner of the tenanted portion, which is in the possession of
respondent no. 2 & 3 as there has never been formal or informal
partition of the suit property between the parties. Thus, the petitioners
must be allowed to be impleaded as party in the eviction petition.
7. On perusal of the records, it is evident that petitioners are claiming to
be co-owners of the property in question, but they cannot disturb the
eviction petition against respondent no.2 & 3. It is well settled law
that in the suit between the landlord and tenant, a third person
claiming to be co-owner of the property cannot intervene as the issue
of ownership could not be decided in the proceedings under the
DRCA.
8. The respondent no. 1 cannot be forced to implead the applicants as
co-petitioners in the eviction petition. Even if it is taken to be correct
that the applicants are co-owners of suit premises along with the
respondent No. 1, but the petition filed as such by respondent No. 1
alone was also maintainable. It is not necessary that all co-owners
need to file the petition for eviction. In India Umbrella
Manufacturing Co. & Anr. Vs. Bhagabandei Agarwalla (Dead) by
LRs Savitri Agarwalla (Smt.) & Ors. reported in (2004) 3 SCC 178
it has been held as under :-
"6....... 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..."
9. The above mentioned principle has been reiterated by the Hon'ble
Apex Court in FGP Ltd. vs. Saleh Hooseini Doctor and Anr.
2009(10) SCC223.
10.By way of the present petition, the petitioners are trying to make the
eviction petition as infructuous and trying to set up a case adverse to
that of respondent no.1 which cannot be permitted. The remedy that
has been prayed for by the petitioners lies elsewhere and cannot be
granted under the current proceedings. Consequently, I find no
infirmity in the order of the Ld. Tribunal. The petition being without
any merit is hereby dismissed in limine.
M.L. MEHTA, J.
JULY 13, 2012
ss/akb
