This writ petition has been preferred with a prayer to issue a writ in the nature of certiorari to quash the order dated 27.08.2005 passed by the learned Prescribed Authority under U.P. Act No.13 of 1972 in Rent Control Case No.2 of 2000, contained as Annexure No.1 to the writ petition.
Brief facts, leading to the filing of the present writ petition are that proceedings under Section 21 of U.P. Act No.13 of 1972 were initiated by the landlord and registered as Rent Control Case No.2 of 2000. The tenant moved application, paper no.116-C to stay the proceedings on the ground that the landlady has moved application for release claiming herself to be the landlord on the basis of sale deed dated 30.11.1998. The previous landlord Jagmohan Prasad died on 01.08.1996 leaving behind his widow, five sons and one daughter. The landlady has claimed to have purchased disputed house.
In the written statement the tenant has accepted her to be the landlady but later on it was revealed that all the legal representatives of Jagmohan are joint owners and landlord and there has been no partition as amongst them. Subsequently the widow and one daughter of Jagmohan sold 2/7th share to the tenant through sale deed dated 13.08.2002 and, as such, the tenant has become co-owner along with the landlady. It was also mentioned in the application, paper no.116-C that the suit for declaration, bearing Regular Suit No.330 of 2004 is also pending. A number of factual pleas were taken in the application against which objection, paper no.120-C was filed. The learned Prescribed Authority allowed the application paper no.116-C and stayed the proceedings of the rent control case, till the disposal of Regular Suit No.330 of 2004. Feeling aggrieved with the said order, landlady has preferred this writ petition.
Counter affidavit has been filed by opposite party no.2.
I have heard learned counsel for both the parties and perused the records.
Without entering into the merits of the facts as alleged by one party and denied by the other, the settled legal position is that proceedings under Section 21 of U.P. Act No.13 of 1972 cannot be put off indefinitely. If there is any merger of interest, the Prescribed Authority has to enter into the controversy and decide the application under Section 21 of U.P. Act No.13 of 1972. The learned Prescribed Authority does not become functus officio, as soon as the tenant submits that he has became owner or part owner of the tenanted premises. A full Bench of the Hon'ble Apex Court in Pramod Kumar Jaiswal v. Bibi Husn Bano (2005 All. C.J. 1560) has dealt with the matter exhaustively and held:-
"With respect, we cannot consider this decision as laying down a proposition of law that on a tenant acquiring the right of a co-owner landlord, the tenancy of a building gets extinguished and the landlord cannot seek eviction of the tenant under the Act or the fixation of fair rent under the Act. It must be pointed out that the observations as above are made even without referring Section 111 (d) of the Transfer of Property Act which governs such a case and the earlier decisions of this Court."
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 the other co-owners is assumed as taken unless it is shown that the other co-owners wee not agreeable to eject the tenant and the suit has been filed in spite of their disagreement. The suit once filed, the rights of the parties stand crystallized 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 an act of the parties or by operation of law. In order to bring the tenancy to an end the merger should be complete, i.e. the interest of the landlord, in its entirety, must come to vest and, merge into the interest of tenant, in its entirety. When part of the interest of the landlord or the interest of one out of many co-landlords-cum-co-owners comes to vest in the tenant, there is no merger and the tenancy is not extinguished.
The fact remains that they have purchased only a share in the property and not the entire property. The applicability of doctrine of merger within the meaning of Clause (d) of Section 111 of the Transfer of Property Act, 1882 is not attracted. In order to bring the tenancy to an end the merger should be complete i.e. the interest of the landlord in its entirety must come to vest and merge into the interest of tenant in its entirety. When part of the interest of the landlord or the interest of one out of many co-landlords-cum-co-owners comes to vest in the tenant, there is no merger and the tenancy is not extinguished. While observing this I find force by the law laid down by Hon'ble Supreme Court in M/s India Umbrella Manufacturing co. and others v. Bhagabandei Agarwalla (Dead) by L.R.'s and others (AIR 2004 Supreme Court 1321).
This view has got approval of this Court in Vijay Kumar and another v. 2nd Additional District Judge, Saharanpur and others reported in 2006 (24) LCD 94. While determining fate of the case, learned Trial Court shall seek guidance from the law laid down by the Hon'ble Apex Court in Abdul Alim v. Shaikh Jamal Uddin Ansari and others, 1992 All CJ 1154 and the law laid down by the Hon'ble Apex Court in Imambi v. Azeeza Bee, 2001 ACJ 125.
But, as far as the question of stay of proceedings under Section 21 of U.P. Act No.13 of 1972 are concerned, I must draw attention of the learned Prescribed Authority to Section 4 of U.P. Act No.13 of 1972 which provides the procedure to be followed by the Prescribed Authorities. Under this provision the proceedings cannot be stayed by mere pendency of the civil suit. Rules framed under the U.P. Act No.13 of 1972 must have been resorted to by the learned Prescribed Authority while staying the proceedings of this case under Section 10 of Code of Civil Procedure. There is no such provision.
In view of the discussions made above, the writ petition succeeds. Accordingly the writ petition is allowed. Order dated 27.08.2005 passed by the learned Prescribed Authority in R.C. No.2 of 2000 is hereby quashed. Learned Prescribed Authority is directed to proceed on to dispose of Rent Case No.2 of 2000 expeditiously so as to make it sure that the case is decided within the period prescribed under Rule 15 (3) of U.P. Act No.13 of 1972. There is no order as to the costs.
Order Date :- 4.9.2012/Ram.