1. Heard Sri W.H. Khan, learned Senior Advocate assisted by Sri J.H. Khan, learned counsel for the petitioner and Sri Iqbal Ahmad, learned counsel for respondent no. 1.
2. This is a tenant's writ petition. Respondent no. 1 is the owner and landlord of the building in dispute which consists of one room, i.e., a shop, in premises No. 88/373A (New No. 88/390), Humayunbagh, Kanpur Nagar.
3. It is not in dispute that the shop in question was initially under tenancy of one Mohd. Ismail. The building was owned by somebody else and purchased by respondent no. 1, Sri Mansoor Ali vide sale deed dated 10.05.1985. He served a notice upon petitioner-tenant sometime in 1999 i.e. after the death of Sri Mohd. Ismail, and devolution of tenancy rights upon his legal heir(s).
4. Application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"), was filed in the year 2000 vide plaint dated 24.08.2000 registered as Suit No. 302 of 2000 in the court of Judge Small Causes, Kanpur Nagar. There were three grounds for ejectment, namely, default in payment, sub-letting and denial and renouncement of title of landlord/owner. It is specifically pleaded in para 3 of application that after death of Mohd. Ismail, Smt. Hazra Begum solely is occupying the disputed building but has never paid any rent to plaintiff-landlord.
5. The application was contested by petitioner, filing a written statement, stating that monthly rent of shop is Rs. 75/- inclusive of water tax; Sri Mohd. Ismail died leaving widow, i.e., petitioner; three sons and one unmarried daughter; and, all are joint/co-tenants of the accommodation in question. The landlord, having not impleaded other legal heirs is guilty of non-joinder of necessary parties. The rent was tendered by petitioner-tenant for the period of 01.01.1998 to 31.07.1999 but returned with postal endorsement of "left", dated 22.07.1999, whereafter it was deposited under Section 30(1) of Act, 1972 in Misc. Case No. 543/70 of 1999 vide court's order dated 02.12.1999. Subsequent rent from January, 2001 to December, 2001 was deposited on 23.03.2001. Hence there is no default. There is no sub-letting. There is no cause of action for filing the application for ejectment of tenant.
6. The petitioner-tenant also moved an application dated 06.08.2001 for appointing an Advocate Commissioner for spot inspection but the said application was rejected by Trial court vide order dated 05.09.2001. The petitioner came to this Court in Writ Petition No. 40928 of 2001. It was disposed of with the following directions:
"On perusing the averments in the application for appointing Advocate Commissioner as well as objection of the landlord and taking into account other relevant facts and circumstances, I am of the opinion that it would be expedient in case Advocate Commissioner is appointed but taking care that tenant petitioner is not allowed to delay the proceedings under its garb. The petitioner may, in case Rent Control Case No. 20 of 2000 has not been heard and decided finally as yet petitioner may file certified copy of this judgment within one week from today and in that contingency the Court below shall appoint Advocate Commissioner with a direction to submit his report within one week after notice to the respective parties. Objection against the Advocate Commissioner's report may be invited within ext one week and thereafter case itself may be decided within since weeks of the filing of the objections.
Learned counsel for the petitioner gives a solemn assurance to the effect that no adjournment will be sought before the Prescribed Authority. It may be mentioned that application for appointment Advocate Commissioner shall be allowed subject to petitioner's depositing cost to such an Advocate Commissioner as well by making payment of Rs. 1,000/- as cost to the landlord also within one week of filing of certified copy of this judgment.
Petition stands disposed of subject to the observations and directions above, with liberty to the landlord-respondents to file review/recall application if they feel aggrieved or so advised."
7. Consequently, the Advocate Commissioner visited premises and submitted report dated 09.01.2002, whereagainst an objection was filed by petitioner-tenant herself, requesting Trial Court to reject Advocate Commissioner's report.
8. The Trial Court ultimately decreed suit vide judgment dated 07.05.2002. It directed petitioner-tenant to vacate accommodation in question and handover vacant possession to respondent-landlord.
9. The tenant filed appeal, i.e., Rent Appeal No. 39 of 2002 which also met with same fate vide judgment dated 04.08.2003. These two orders have given cause of action to petitioner to file the present writ petition under Article 226 of the Constitution.
10. Before this Court only one issue has been raised and argued by learned counsel for the petitioner that after death of Mohd. Ismail, the initial tenant, tenancy rights devolved on all the legal heirs, namely, widow, three sons and one daughter. The suit was filed by impleading only one of the joint tenants, i.e., the petitioner, hence was liable to be dismissed for non-impleadment of other co-tenants. Sri Khan, submitted that there was no evidence that other co-tenants surrendered their tenancy rights and, therefore, both the courts below have committed patent error of law in rejecting petitioner's contention about non-impleadment of necessary parties. He relied on this Court's decisions in Moti Lal Pathara Vs. VIIIth Additional District Judge, Varanasi and others, 1990(1) ARC 61; M/s G.R. Bhargava and sons Vs. The Prescribed Authority, Chandausi, Moradabad and others, 1995(2) ACJ 1238; Abdul Sattar Vs. VIth Additional District Judge, Allahabad and others, 1994(1) ARC 117; and, Smt. Rani Devi Vs. Bhole Nath, 1992 AWC 250(SC).
11. Per contra, Sri Iqbal Ahmad, learned counsel appearing for respondent-landlord submitted that there being a joint tenancy, if one of them is impleaded, the proceedings are binding on all others and it is not necessary to implead all the joint tenants. He further contended that other legal heirs having full knowledge of proceedings never attempted to participate therein and, therefore, would be deemed to have surrendered their tenancy rights. He pointed out that Rent Appeal No. 42 of 2005, in the Court of XVIIth Additional District Judge, Kanpur Nagar was filed by other legal heirs of late Mohd. Ismail impleading petitioner, Smt. Hazra Begum and respondent no. 1, Mansoor Ali as respondents challenging the judgment dated 07.05.2002 passed by First Additional Civil Judge (Senior Division), Kanpur Nagar in Rent Case No. 20 of 2000, i.e., the judgment of Trial Court. The appeal has been dismissed on 04.10.2012 but not taken further by challenging the appellate order. He also submitted that one of the sons, i.e., Mohd. Imran, of deceased Mohd. Ismail, participated in Commission's proceedings but he never took any steps for impleadment in the proceedings. This also demonstrates that he had no interest in the proceedings and must be deemed to have surrendered his tenancy rights. Sri Iqbal Ahmad in support of his submissions placed reliance on Vivek Gupta Vs. Shri Piyush Chandra Srivastava Judge Small Causes Court, Meerut and others, 2003(2) ARC 313; Krishna Kityal (Smt.) Vs. Kamlesh Gupta (Smt.) and another, 2008(2) ARC 603; and, Bhagwati Prasad Vs. Chandramaul, AIR 1966 SC 735.
12. Section 20 of Act, 1972 permits a suit for eviction of a tenant from a building after determination of his tenancy, provided one or more of the grounds mentioned therein exist. To take it simplicitor, it means that parties to be impleaded in the suit would be landlord as plaintiff and tenant as defendant. A tenant, therefore, would constitute a necessary party without whom the suit cannot proceed since the relief obviously must have been sought by landlord against tenant. In the context of co-owner, it has been held that a suit filed by co-owner would not fail merely because other co-owners are not arrayed as party in the suit.
13. In Sri Ram Pasricha Vs. Jagannath and others, AIR 1976 SC 2335 a similar dispute came to be considered before a three Judge Bench of Apex Court. Relying on certain earlier decisions of Calcutta, Madras and Bombay High Courts, it was argued that one of the co-owner without impleading other co-owners cannot maintain a suit for eviction under Section 13(1)(f) of West Bengal Premises Tenancy Act, 1956. The argument in particular based on the decisions in Bollye Satee and Anr. Vs. Akrarn Ally and Ors. (1879) I.L.R. 4 Cal. 961; Kattusheri Pishareth Kanna Pisharody Vs. Vallotil Manakel Narayanan Somayajipad and Ors. (1878) I.L.R. 3 Mad. 234; Balakrishna Sakharam Vs. Mow Krishna Dabholkar (1897) I.L.R. 21 Bom. 154; and, Dwarka Nath Mitter and Ors. v. Tara Prosunna Roy and Ors. (1890) I.L.R. 17 Cal. 160. The Apex Court found none of the aforesaid decisions fortifying the above submission. Rejecting the same, in para 11, the Court observed, that, relations between parties being that of landlord and tenant, only a landlord can terminate the tenancy and institute suit for eviction. The tenant in such a suit is estopped from questioning title of landlord by virtue of Section 116 of the Evidence Act. Under 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-impleading of other co-owners as such. Reliance placed on English authorities was also negatived by Apex Court observing that English principle is abhorrent to the Indian conception and structure of social life of our country with its benign sensitivity and ties, which is not based on pure individualism. Having said so, the Apex Court approved a passage on the concept of ownership from the celebrated authority of "Jurisprudence" of Salmond in para 24 of the judgment and said that jurisprudentially, it would not be correct to argue that a co-owner of a property is not its owner. In legal parlance, a co-owner owns every part of the composite property along with others (co-owners). It cannot be said that any individual co-owner is only a part owner or a fractional owner of the property. Such a situation may arise only when there is a partition between the co-owners by metes and bounds. In this background and legal perception, it cannot be said that plaintiff, admittedly a landlord and co-owner of premises, can be non-suited on the ground that other co-owners are not impleaded or that he is not the sole owner of premises.
14. The above decision came to be considered again in Kanta Goel Vs. B.P. Pathak and others, AIR 1977 SC 1599 by another three Judge Bench in the context of proceedings initiated for eviction of a tenant with reference to Sections 14-A(1) and 25-B of Delhi Rent Control Act, 1958. Here also, it was argued that other heirs of deceased landlord are necessary parties and without impleading them, eviction proceedings cannot continue. The Apex Court refers to definition of "landlord" and "tenant" under Section 2(e) and (l) of Delhi Rent Control Act and found that rent was paid to Sri B.P. Pathak, the first respondent, who initiated eviction proceedings and thus he satisfies the definition of landlord. It also observed that there is no doubt that appellant, Kanta Goel was tenant in premises. Having said so, the Court observed that in case of co-owners, if one person is dealing with tenant, it means that he together with other co-owners would constitute the body of landlords and by consent, implicit or otherwise, of the plurality of landlord, one of them representing them all, was/is collecting rent and for all practical purposes, he would be a landlord, entitling to institute proceedings qua landlord. Having said so, the Court also referred to and relied on its earlier decision in Sri Ram Pasricha (supra).
15. However, one aspect left open for consideration, was a situation where some of the co-owners want to continue the tenant contrary to relief claimed by one co-owner, instituting proceeding.
16. Both the above decisions have been considered and followed in Pal Singh Vs. Sunder Singh and others, AIR 1989 SC 758. The Court, however, explained the situation and said other co-owner when did not object to eviction, one co-owner can maintain an action for eviction, even in absence of other co-owners. This is evident from para 10 of the judgment where the Court said:
"This in our opinion falls within the ratio of Kama Goel v. B.P. Pathak (supra) where this Court clearly held that when the other co-owner did not object to the eviction one co-owner could maintain an action for eviction even in the absence of other co-owner. Here also Smt. Sham Kaur and her heirs did not object to the claim for eviction made by the respondents herein. In that view of the matter and in the circumstances of this case, we are of the opinion that the ratio of the said case will apply and this suit will be maintainable even in the absence of all the owners to the eviction proceedings."
17. The dictum in Sri Ram Pasricha (supra) was followed in Subhendu Prosad Roy Choudhury and others Vs. Kamala Bala Roy Choudhury and others, AIR 1978 SC 835 in the context of quit notice given by one co-owner (landlord) to tenant and the Court said:
"Even assuming that notice was not given on behalf of one of the co-owner landlords, the decision of this Court is Sri Ram Pasricha v. Jagannath and Ors. Would show that yet the notice was good and valid."
18. A Division Bench of this Court followed the above dictum in Rang Nath Vs. State of U.P., 1984 ARC 642 and the correctness of aforesaid decision was considered by Full Bench in Gopal Das and another Vs. Ist Additional District Judge, Varanasi and others, AIR 1987 All 261. The Full Bench approved dictum laid down in Rang Nath (supra) by observing in para 11 as under:
"11. 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."
19. It is also worthy to notice that Rule 15(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the "Rules, 1972") provided, if there are more than one landlord, the application shall be signed by all the landlords. Construing the aforesaid provision in the context of co-owners, the Full Bench in para 16 of the judgment said, if this Rule is to be pressed in the case of co-owners, it shall be invalid since even one co-owner is competent to sign application and filed it. The relevant part of para 16 reads as under:
"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 of eviction of the tenant of the entire premises, since he can be considered as a landlord within the meaning of Section 3(i) of the Act. One co-owner alone would be competent to sign such an application."
20. However, all these authorities are in the context of landlord/owner. In other words when one comes to seek some relief, the law in presenti, is where the building has several co-owners, in absence of partition, even one co-owner can maintain proceedings for eviction of tenant(s) unless such eviction proceedings are objected to by other co-owners individually or collectively, as the case may be, expressing their intention to keep tenancy continue.
21. What would be the position in the context of tenant? Can a similar principle be applied in the context of joint-tenancy/co-tenancy as also in the case of tenancy in common or there are some other principles. The concept and consequences of joint-tenancy and co-tenancy and tenancy in common have been considered in various authorities. In the case of tenant in common, each one shall be an individual tenant in his own rights and tenancy will have that much of units of tenancy as the number of tenants in common. In such a case neither one tenant can represent all others nor any proceeding can be validly prosecuted without impleading all the tenants. In such a case all the tenants, i.e., tenants in common, would constitute necessary parties and without impleading anyone of them the proceedings by landlord would not be maintainable for want of necessary parties.
22. The position, however, would be different in the case of joint-tenancy/co-tenancy. Such rights come into existence as a result of devolution of certain rights to enjoy immoveable property by virtue of certain incident, natural or otherwise. For example if ''A', a tenant has ''B' wife and ''C' and ''D' sons or ''C' son and ''D' daughter; after death of ''A', tenancy rights shall devolve on all the legal heirs i.e., ''B', ''C' and ''D' without multiplying tenancy to number of legal heirs vis a vis landlord. It would continue to be a single tenancy though the legal heirs, if more than one, all shall become joint-tenant/co-tenant but continue to maintain a single unit of tenancy.
23. The concept of joint-tenancy/co-tenancy has been considered in H.C. Pandey Vs. G.C. Paul 1989 (2) ARC 26. The Apex Court said that on the death of original tenant, subject to any provision to the contrary, either negativing or limiting succession, tenancy rights devolve on the heirs of the deceased tenant. The incidence of tenancy is the same as those enjoyed by the original tenant. Thus in other words, the heirs succeed the tenancy as "joint tenants".
24. The above legal exposition was reiterated and approved by a three-Judge Bench of Apex Court in Harish Tandon Vs. Addl. District Magistrate, Allahabad and others 1991 (1) ARC 220. In para 23 and 24 of judgment, the Court said, it is difficult to hold that after the death of original tenant, his heirs become tenant in common and each one of the heirs shall be deemed to be an independent tenant in his own right. On the contrary, it is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor, and, the heirs succeed the tenancy as joint tenants. The Court also referred and followed an earlier Constitution Bench Judgment in Smt. Gian Devi Anand Vs. Jeevan Kumar and others 1985 SCFBRC 229 SC. The Bench also referred to a contrary decision in Mohd. Azeem Vs. District Judge, Aligarh 1985 (2) ARC 85 (SC), and, having considered the same in para 27, held that decision in Mohd. Azeem (surpa) does not lay down correct law. The decision in H.C. Pandey (supra) is however affirmed.
25. The difference in the concept of joint tenancy and tenancy in common has again been considered and explained in detail in Harish Tandon (supra). A three Judge Bench of Apex Court considered this question. It held that after the death of original tenant, his heirs cannot be said to have become tenant in common since that would result in treating as if each one of heir is deemed to be an independent tenant in his own rights. Looking to this issue in the context of provisions of statute, i.e., Act, 1972 the Apex Court held that if the concept of tenancy in common would be accepted, that would make the operation of statutory provision almost improbable and extremely difficult. That may also result in finding out several lacuna and inconsistency in the statute also. Such a situation cannot be perceived. With reference to Section 20(2) of Act, 1972 the Court discussed various grounds on which the landlord has been given a right to seek ejectment of tenant from a building and held that concept of tenancy in common shall render application of various provisions improbable. The Court discussed this aspect in detail in para 23 and thereafter took the view that earlier decision in H.C. Pandey (supra) has taken a correct view that after death of original tenant, tenancy rights devolved on the heirs of deceased tenant, jointly. The incidence of tenancy is same as those enjoyed by original tenant. It is a single tenancy which devolves on the heirs. There is no division of premises or of rent payable therefor. The heirs succeed to the tenancy as joint tenants. Having said so the Court said, in para 26 of the judgment, that, after the death of original tenant his heirs shall be deemed to be holding the premises as joint tenant and for any breach committed by any of such joint tenants, all the heirs of original tenant have to suffer. They cannot take a plea that unless a ground for eviction is established individually against each of them, they cannot be evicted from the disputed premises. In this context the Court also held that quit notice served and received by one co-tenant is sufficient and need not be given individually to each co-tenant.
26. However, I find that the issue of joint-tenancy/co-tenancy in the above cases came to be considered in the context of service of quit notice upon one joint-tenant/co-tenant and the Court held that such service would be deemed upon all the co-tenants/ joint-tenants. The question, whether in a suit for eviction, all co-tenants/joint-tenants must be impleaded or not, and if one or more are not impleaded, what shall be the effect, was not the issue directly in consideration before the Apex Court either in H.C. Pandey (spura) and Harish Tandon (supra).
27. The issue appears to have been considered in Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup and another, AIR 19990 SC 2053. Therein one Gopal Kurup was initial tenant of disputed premises. After his death, tenancy rights devolved on widow, two sons and daughters. The landlord filed suit by impleading only mother and one son. The suit was decreed ex parte granting decree of ejectment on the ground of default in payment of rent. The decree was put into execution and the possession was recovered by landlord. Balmohan Gopal Kurup, son of Gopal Kurup, filed a suit for restoration of possession on the ground that ex parte decree in eviction proceedings in which he was not party, is not binding upon him. He was not impleaded though he was a tenant living in the disputed premises at the time of death of his father, Gopal Kurup, hence any eviction proceeding in his absence would not bind him. The Trial Court decreed the suit holding that decree for eviction was not binding on him, whereagainst appeal was dismissed and writ petition was also dismissed by High Court. The Apex Court confirmed the view of courts below that Balmohan Gopal Kurup was as much a tenant as the mother and his brother. That being the position, ex parte decree for eviction obtained against him and his brother cannot be allowed to continue without impleading him. The Court also held that mere declaration that the decree is not binding upon him is not sufficient inasmuch as the decree cannot be kept alive against two other tenants and possession of premises to be given exclusively to third co-tenant, i.e., Balmohan Gopal Kurup. In these facts and circumstances, the Apex Court set aside the ex parte decree, restored possession to all the tenants, and directed, that Sri Balmohan Gopal Kurup shall be impleaded in the ejectment proceedings initiated earlier and thereafter the suit shall proceed fresh. The Court distinguished its earlier decisions in Kanji Manji v. The Trustees of the Port of Bombay (1962) 3 Supp. SCR 461 and H. C. Pandey (supa) observing that both the cases relate to the validity of notice issued to one of the joint-tenants.
28. This decision i.e. Textile Association (India) Bombay Unit (supra) leaves no manner of doubt that the joint-tenants, if all are residing in the tenanted accommodation, the landlord cannot initiate eviction proceedings against one or some of them. Such decree would not be binding on the co-tenants/joint-tenants not made party in such proceedings.
29. But this concept has not been applied absolutely in its entirety. The factum that all the tenants are residing in tenanted accommodation and are equally interested to enjoy the tenancy rights, is a mater of importance and such cases may be dealt with in the light of the above dictum but there may be cases where for one or other reason, one or more co-tenants/joint-tenants have shifted elsewhere or for any other reason, may not be residing in that accommodation or otherwise have lost interest in the tenanted accommodation. In such a case, mere non-impleadment of those co-tenants/joint-tenants would not vitiate eviction proceedings.
30. The relevant law on the subject, this Court finds, in Smt. Rani Devi (supra), wherein the initial tenant was one Lalu. The tenanted accommodation was a non-residential building. The eviction proceedings were initiated under Section 21(1)(a) by impleading Bhole Nath, one of the sons of Lalu, who was carrying on business after death of Lalu. The daughters of Late Lalu were not impleaded though after the death of Lalu, tenancy rights devolved on legal heirs including married daughters also. The Court found that in view of Section 3(a)(2) of Act, 1972, in the case of a non-residential building, all heirs of tenant are tenants who succeed intestate as per the Hindu Succession Act, 1956. The married daughters, therefore, also succeeded tenancy rights under Act, 1972. Having said so, the Court said that non-impleadment of married daughters shall not vitiate maintainability of proceedings for ejectment, if from the facts of case, it is found that they have lost interest in tenancy rights and it can be safely inferred that they have surrendered their tenancy rights. The courts below therein recorded a finding that married daughters evinced no interest to assert their right, therefore, by necessary implication, it can be inferred that they have surrendered their tenancy rights inherited under the Act and once that is so, their non-impleadment as respondents shall not vitiate action on the principle of non-joinder of them as necessary party nor shall affect the maintainability of proceedings of ejectment in any manner.
31. This concept of surrender of tenancy rights by co-tenants/ joint-tenants has been recognized in several other authorities also, some of which have been cited at Bar.
32. The Apex Court in Ashok Chintaman Juker and others Vs. Kishore Pandurang Mantri and another, AIR 2001 SC 2251 observed that Ashok Chintaman Juker was not residing in the premises since 1962 when his elder brother, Kesrinath was alive though it is true that tenancy rights devolved after death of their father, Chintaman upon both of them and their mother Smt. Kishori Kesrinath Juker, hence it was not necessary for landlord to implead him since there was no cause of action for seeking a decree of recovery of possession from him or member of his family. Sri Ashok Chintaman Juker had pleaded that rent in fact was being paid by him through Smt. Kishori Kesrinath Juker and in the context of this aspect of the matter, the Court observed that tenancy being one, all the members of family of original tenant residing with him at the time of his death succeeded tenancy rights together and hence, the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by landlord, represented all the tenants and the decree passed in suit is binding on all the members of family covered by tenancy. The Court further said that compromise decree passed between landlord and Smt. Kishori Kesrinath Juker is neither invalid nor inexecutable against any person, who claims to be a member of family, residing with original tenant, and Ashok Chintaman Juker and his family members, therefore, has no right to resist the decree on the ground that it is not binding upon him.
33. In the above case, the Apex Court, on the facts found that Sri Ashok Chintaman Jukar was not residing in the accommodation in question, therefore, his non-impleadment, even though he was a co-tenant, would neither vitiate the eviction proceedings nor would affect executability of decree passed against other co-tenants. It, however, also held that decree passed against one co-tenant is binding on all others since a co-tenant represents others also.
34. This judgment in Ashok Chintaman Juker (supra) is in the context of provisions of Bombay Rent Control Act, 1947. There is no reference of earlier decision of Apex Court in Smt. Rani Devi (supra) hereat. To some extent it appears that the view taken in Smt. Rani Devi (supra) is at variance than what has been said in para 16 of the judgment in Ashok Chintaman Juker (supra).
35. This Court has also examined the question of non-impleadment of a co-tenant and its effect on the binding nature of decree in such eviction proceedings.
36. In Mohd. Qadeer Vs. Munsif North, Lucknow, 1992 ALR 752 it was pleaded that the plaintiffs were co-tenants and since notice of termination of tenancy was not served on them nor they were impleaded in the suit, the decree is not binding on them. Hon'ble S.C. Mathur, J. rejecting this contention, observed that even if a notice is not served on a joint-tenant and he is not impleaded in suit, still decree shall not be invalid. Instead, it shall operate against all joint-tenants, including one who had not been impleaded in the suit for eviction of tenant.
37. A Division Bench in Smt. Anju Sharma Vs. Suresh Chand Jain and others, 1993(21) ALR 158 expressed its complete agreement with the above view of Hon'ble Mr. Justice S.C. Mathur in Mohd. Qadeer (supra) as is evident from para 9 and 10 of the judgment. I may reproduce para 10 of the judgment as under;
"10. We are in complete agreement with the view of Hon'ble Mr. Justice S.C. Mathur in the case of Mohd. Quadeer (supra). It is not open now to the appellant to say that the decree passed in favour of respondent No. 1 is not binding on her. Her status appears to be that of a joint tenant. She is claiming her interest in the property in dispute by way of succession from her father who was admittedly the sole tenant of the property in dispute. In view of the above case, we are prima facie of the opinion that it is not open to the appellant to challenge the decree in question on the ground that she was not made a party to the suit."
38. In Krishna Kumar Agrawal Vs. XIIth Addl. District Judge, Moradabad and others, 1995(2) ARC 637 Hon'ble M. Katju, J. (as His Lordship then was), following Harish Tandon (supra), held, that, after the death of original tenant and devolution of tenancy rights upon his heirs, it is not necessary that all of them must be impleaded but impleadment of some of joint-tenants would be sufficient. An argument was raised by Sri Krishna Kumar Agrawal that his married sister and three nieces were not impleaded. The petitioner Krishna Kumar Agrawal and his sisters etc. derived their co-tenancy rights after the death of original tenant, Khetal Prasad, father of Krishna Kumar Agrawal. This Court said that "since some of the joint tenants have been impleaded, in my opinion that is sufficient." The Court also took into notice that once the person raising such complaint himself was a party to the proceeding, that is sufficient, leaving no scope for him to raise such a plea.
39. In Sunil Kumar Singh Vs. Special Judge, Jaunpur and others, 1994(2) ARC 194, Hon'ble Sudhir Narain, J., held that a person is not entitled for impleadment and contest the matter afresh in appeal, if the matter was fully represented by some of joint-tenants in a suit. This decision was followed by His Lordship subsequently in Mohammad Parvez and others Vs. VIIth Additional Chief Metropolitan Magistrate and others, 1996(1) ARC 439.
40. In Smt. Usha Rani Vs. Prescribed Authority, Roorkee and others, 1998(34) ALR 202 Hon'ble J.C. Gupta, J. following the decisions in Mohammad Parvez (supra), Smt. Anju Sharma (supra) and Sunil Kumar Singh (supra), said, in para 6 of the judgment:
"6. In view of the above settled position of law and specially having regard to the fact that the other joint tenants who were impleaded along with the petitioner in the release application had contested the matter upto this Court and lost from every Court and also obtained an order from this Court for time to vacate the premises in question on their filing an undertaking, the present application for restoration appears to have been moved mala fide simply with a view to deny the landlord of his right to obtain possession of the premises in question, which incidently happens to be a shop. There is no allegation that other joint tenants who had contested the matter, had colluded with the landlord. The present application for restoration per se appears to be an abuse of process of Court."
41. In Kamla Prasad and others Vs. The District Judge, Allahabad and others, 2006(1) ARC 753, Hon'ble S.U. Khan, J., following Harish Tandon (supra) and Ashok Chintaman Jukar (supra), observed that even if one of the co-tenant, namely, Lalu was not impleaded in the suit, yet the suit would have been fully competent. The interest of Lalu was fully safeguarded and represented by other co-tenants, particularly when, there is no allegation that there was any collusion of one or the other tenant with landlord. The Court, in fact, deprecated practice of one or more co-tenants to challenge proceedings at a later stage in order to deprive decree holder from enjoying fruits of his labour, stating that procedural law must not become an obstruction in dispensation of justice. In para 9, the Court expressed its view, as under:
"9. Procedural law cannot be interpreted and applied in such manner that it becomes Master instead of servant. The Supreme Court in Sushil Kumar Sen v. State of Bihar has held that procedure should be handmaid not the mistress. The Supreme Court in Kailash v. Nankoo 2005 (1) A.R.C. 861 (also and after discussing several authorities including that of Sushil Kumar (Supra) held that substantive justice cannot be given a gobye merely because of procedure. In the said authority Supreme Court also referred to Ghanshyam Dass v. Dominion of India particularly the following sentence:
Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."
His Lordship followed this view also in Shikhar Chandra Vs. Additional District Judge and others, 2005(3) ARC 437; Mirza Qazim Raza Beg and others Vs. IVth Additional District Judge and another, 2006(3) AWC 3107; Satish Chnadra and others Vs. Shiv Kumar Gupta and others, 2009(75) ALR 540; Waqf Allal Aulad and another Vs. Ist Additional District Judge, Bijnor and another, Writ Petition No. 44115 of 1998 (Civil Misc. Review Application No. 240093 of 2008), decided on 24.02.2011; and, Vivek Gupta (supra).
42. Hon'ble Dilip Gupta, J. also has followed above authorities and taken similar view in Pooja Gupta (Smt.) Vs. Pushkar Kumar (Sri) and another, 2008(2) ARC 818. Hon'ble Shashi Kant Gupta, J. in Kamal Raj Patpatiya Vs. Smt. Har Bai Sahu and another, 2011(2) AWC 1935; Hon'ble Krishna Murari, J. in Brij Bhushan Sharma Vs. Anand and others, 2012(6) ADJ 210; and Hon'ble Rakesh Tiwari, J. in Anant Lal and another Vs. Shiv Kumar Lilariya and others, Writ Petition No. 7899 of 2009, decided on 09.03.2011 have expressed a similar view.
43. The consensus of judicial precedence thus in the context of joint-tenancy/co-tenancy is that a decree passed against one joint tenant is binding upon other joint tenants also which means that proceedings by not impleading all joint tenants would not vitiate for this reason alone. If, however, it is shown that joint tenants were actually occupying the building in dispute for non residential purposes by carrying on business therein, then, of course, equitable consideration may intervene and he/she may not be evicted under release order, if not impleaded. Similarly non impleadment of one of the joint tenant shall not make release application, under Act, 1972, non-maintainable or vitiated in law.
44. Now I may refer to the decisions in the context of implied surrender of tenancy rights.
45. In Moti Lal Pathara (supra) one Narendra Bahadur Singh was landlord and owner of shop in question, which was in the tenancy of one Vishwanath Prasad who died in 1979. The tenancy rights thereafter devolved on his legal heirs, constituting four sons including Motilal Pathara. The landlord came up with a case that other three sons of erstwhile tenant, Vishwanath Prasad had their own separate commercial accommodations in vicinity of disputed shop and tenancy thus continued with Motilal Pathara individually with consent of other legal heirs. Sri Pathara contended that tenancy rights devolved as tenancy in common upon legal heirs. The Prescribed Authority rejected the application of landlord on the ground that he failed to prove bona fide personal need and hardship in his favour but the Prescribed Authority's order was reversed in appeal. Before this Court, an issue was raised that without impleading other legal heirs the application under Section 21(1)(a) was not maintainable. The Court found that Motilal Pathara, tenant has moved an application before Nagar Mahapalika Varanasi for recording his name as tenant in the shop in dispute and his other brothers knowing this fact did not object. The Court held that this fact demonstrates an implied surrender by other brothers of Motilal Pathara in his favour and for this purposes relied on this Court's decision in Sultan Vs. Ist Additional District Judge, Meerut, 1982(1) ARC 390.
46. In M/s G.R. Bhargava and sons (supra) this issue was not directly involved but in para 5 of judgment this Court relying on Abdul Sattar (Supra), held that there may be an implied surrender of tenancy which would depend on various facts and circumstances of a particular case.
47. In Abdul Sattar (Supra) the initial tenancy was in the name of one Mohd. Hussain. After his death, Sri Abdul Sattar alone continued to occupy the shop in dispute and run business. His another brother was in Government service. The Prescribed Authority dismissed application of landlord under Section 21(1)(a) for release of accommodation on the ground of non-impleadment of Imamuddin, brother of Abdul Sattar holding that after death of initial tenant, Mohd. Hussain, tenancy rights devolved on both sons, namely, Abdul Sattar and Imamuddin but since Imamuddin was not impleaded, hence application was not maintainable. This issue, however, was reversed in appeal and the matter came to this Court. It was held that tenancy rights may be surrendered expressly or impliedly. An express surrender can be effected by a clear and unambiguous declaration of intention by the person having tenancy rights in accommodation in question about surrender and yield up his tenancy rights. In such cases, it is a matter of intention of parties and not a matter of implication of law. However, in case of implied surrender, no such intention is disclosed expressly but may be inferred in law on the basis of relevant facts and circumstances. Sometimes this inference may depend by virtue of any statutory provision or else it may be in view of certain facts, disclosing unequivocally, the intention of party concerned about such surrender. Such inference in law may be drawn from omissions, acts and conduct of party concerned. The essence of implied surrender is more a matter of question of fact than of law depending on intention of parties. Reliance is placed on Apex Court's decision in Smt. Rani Devi Vs. Bhole Nath (supra), wherein the Apex Court upheld the findings of courts below about extinguishment of tenancy rights of a co-tenant by implied surrender inferred as a necessary implication from the facts brought on record. The Court held that their non-impleadment would not affect the proceedings and it would be wholly immaterial. A corollary is drawn from another decision of Apex Court in Shah Mathuradas Maganlal and Co. Vs. Nagappa Shankarappa Malage and others, 1976(3) SCC 660 where it was held that relinquishment of possession operates as implied surrender. The Apex Court also clarified that implied surrender by operation of law occurs by creation of new relationship or by relinquishment of possession.
48. In Om Prakash v. Jaswant Singh and others, 1999(4) AWC 3129 the question of applicability of principle of surrender of tenancy rights came to be considered in the context of Section 38 of Act, 1972. It was argued that since the provisions of Transfer of Property Act, 1882 (hereinafter referred to as the "Act, 1882") are excluded by Act, 1972, the principle of surrender of tenancy rights cannot be applied to the cases governed by Act, 1972. The Court rejected the submission observing that Section 38 of Act, 1972 overrides Act, 1882 only to the extent of inconsistency with the express provision of Act, 1972. There are certain provisions of Act, 1972 which show that principle of surrender of tenancy rights has expressly been recognised therein. Section 12 of Act, 1972 is a recognition of principle that a surrender of tenancy right could be implied from the conduct of tenant when he had substantially removed his effects from the accommodation or has allowed it to be occupied by others or in certain other contingencies. Surrender of tenancy rights could be implied under law from the conduct of parties.
49. From the above discussion the principles which emerge very clearly in the context of co-tenant/joint-tenant are:
(i) A quit notice shall not be invalid, if served upon only one of the co-tenant/joint-tenant, and eviction proceedings validly can be instituted thereupon.
(ii) Where one or more co-tenants have surrendered their tenancy rights expressly or impliedly, their non-impleadment in eviction proceedings or proceedings initiated by landlord shall not be vitiated.
(iii) Where a co-tenant claims to have acted through another co-tenant, for example, he claims of paying rent through another co-tenant who is actually residing in the tenanted accommodation, the impleadment of such co-tenant who is actually residing in accommodation in a proceeding without impleading the former one, would mean due notice to the former one and the decree passed in such proceedings shall be binding on the former co-tenant also though he was not party thereto.
(iv) The eviction proceedings and decree passed in a case where all the co-tenants and joint-tenants would not be impleaded, would be valid and binding on all, provided the co-tenants who have participated in the proceedings, have not colluded with landlord. A co-tenant not impleaded in such proceedings cannot be allowed subsequently to wriggle out the binding force of decree, only on the ground that he was not impleaded in the proceedings.
(v) Where all the co-tenants/joint-tenants are enjoying the tenancy rights by residing in the property or otherwise, a landlord may not adopt a selective method of initiating proceedings for eviction by impleading only one or few of them and leaving others. It goes without saying that where such kind of selective impleadment is found coloured with collusive proceeding, misreprentation, fraud etc., such decree shall not be binding on a co-tenant or joint-tenant, not party to such proceeding.
(vi) The objection of non-impleadment, however, shall not be heard at the instance of a co-tenant, who is very well represented in eviction proceedings and himself/herself has full opportunity to contest the matter.
50. In the context of above, I propose to look into the facts of present case to find out whether non-impleadment of two sons of deceased original tenant, Mohd. Ismail would vitiate the present proceeding.
51. Firstly, it is evident from record that none of the alleged co-tenant who were not made party, have raised any complaint before this Court against the eviction decree, that it is not binding upon them and they are not liable for ejectment. The petitioner, Smt. Hazra Begum who has come to this Court, was a party and has well contested the matter, therefore, in my view, the kind of objection raised in this case should not be entertained at her instance inasmuch as it is not a case where she is prejudiced in any manner as her right of opportunity has already been taken care of.
52. Besides, in the present matter, the landlord has taken a specific stand that accommodation in dispute was occupied solely by Smt. Hazra Begum and, therefore, only she was impleaded. This fact has not been controverted by placing any material on record. In these circumstances, non-impleadment of other joint tenants would make no difference in the matter.
53. Moreover, it is evident from record that Mohd. Imran, one of the sons of original tenant, participated in commission proceedings, was well aware of the ejectment proceedings in question but never took any steps for his impleadment in the matter. Further, other joint tenants filed appeal against the order and judgment of Trial Court and the same has been dismissed. It has not been taken further to this Court. It is thus evident that other tenants have not seriously asserted their tenancy rights and can be safely presumed to have surrendered thereto.
54. In the circumstances and in the light of above discussion, I find no reason to interfere with the impugned judgment.
55. This Court is also satisfied that proceedings prolonged by petitioner-tenant on the grounds, as discussed above, show her intention only to delay her ejectment from shop in question. The dilatory tactics adopted by one of the litigants obviously results in making the litigation, expensive to other side and sometimes test his capacity to carry on litigation. Such kind of practice deserved to be discouraged and deprecated. One of the ways is award of cost. The easy attitude adopted by Courts in not imposing cost and making it easy, frequently, has encouraged scrupulous parties to go on with their activities like dilatory practices, filing of frivolous cases etc. since there is no preventive and prohibitive steps taken by the Courts to discourage it. The Apex Court has also taken note of this situation in Salem Advocate Bar Association Vs. Union of India, AIR 2005 SC 3353 and in para 38 of the judgment the Court observed:
"38. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation."
56. In the present case, I find that the above observations are duly applicable. This writ petition, therefore, deserves to be dismissed with appropriate costs.
57. In the result, the writ petition is dismissed with costs, which I quantify to Rs. 10,000/-.
Order Date :-23.11.2012 AK