Sanjay K. Agrawal, J.
1. The substantial question of law formulated and to be answered in this plaintiff''s second appeal states as under:
"1. Whether the Courts below were not justified in holding that the relationship of landlord and tenant was not proved by the plaintiff in the matter?
2. Whether the Courts below were not justified in holding that the plaintiff could not prove that he needed the non-residential accommodation for his bonafide need and he has no other reasonably suitable non-residential accommodation of his own in his occupation in the township of Raipur?"
The imperative facts required to be noticed for adjudication of this appeal are as under:
[For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.]
(2.1) The suit shop was originally owned by Notandas Advani, father of the plaintiff, who died on 5.4.1986 leaving behind two sons namely plaintiff Shyam Advani and his brother Ram Advani. Shri Notandas Advani, in his life time, let out the suit accommodation to defendant Ramesh Kumar Panjwani on a monthly rent of Rs. 625/- for non residential purpose vide Ex.P-1 dated 01.12.1979.
(2.2) Upon death of original landlord Notandas Advani, one of his son - Shyam Advani filed a suit for eviction and arrears of rent stating inter alia that he is an Advocate by profession and he has no other alternative reasonably suitable accommodation for opening his office in the township of Raipur, therefore, the suit accommodation is bonafidely required by him, which has not been vacated inspite of service of notice to the defendant/tenant.
(2.3) The defendant filed his written statement pleading inter alia that after death of original landlord Notandas Advani, he has started making payment of rent to the other co-owner of the suit accommodation - Shri Ram Advani and, therefore, there is no relationship of landlord and tenant between the parties and the suit accommodation is not required bonafidely by the plaintiff, and, therefore, the suit is liable to be dismissed.
2. The trial Court, after appreciating the material available on record, dismissed the plaintiff''s suit.
3. The plaintiff preferred first appeal there-against. The first appellate court, after re-appreciating the entire evidence adduced in the case, affirmed the judgment and decree passed by the trial court, leading to filing of this Second Appeal under Section 100 of the Code of Civil Procedure by the plaintiff, which has been admitted on the substantial question of law formulated as mentioned in opening paragraph of this judgment.
4. Mr. G.D. Vaswani, learned counsel appearing for the appellant/plaintiff would submit that the concurrent findings recorded by both the courts below holding that relationship of landlord and tenant between the parties is not established is perverse and the ground under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 is made out to grant decree for eviction and as such, the judgment and decree passed by both the courts below is bad in law and deserve to be set aside and plaintiff''s suit be decreed with cost.
5. Per contra, Shri Vyas, learned counsel appearing for the respondent/defendant would support the judgment and decree passed by both the courts below by submitting that the concurrent findings recorded by both the courts below are based on material available on record and the appeal deserves to be dismissed.
6. I have heard learned counsel appearing for the parties and perused the records of both the courts below with utmost circumspection.
Answer to substantial question of law No. 1
7. In order to answer this question of law, the short question needs consideration is whether plaintiff, one of the co-landlord out of several ones can maintain action for eviction against tenant without impleading other co-landlord?
8. Admittedly and indisputably, the suit accommodation was let out by late Shri Notandas Advani in favour of defendant - Ramesh Kumar Panjwani on 1.12.1979 vide Ex.P-1. During the continuance of landlord-tenant relationship, Shri Notandas Advani died on 5.4.1986 and the suit property was succeeded by his two sons namely Shyam Advani (present plaintiff) and another son Ram Advani.
9. According to defendant''s own pleading and evidence brought on record, Mr. Ram Advani - brother of plaintiff is suffering from Schizophrenia right from the year 1990, yet the defendant has claimed and sought to be establish the payment of rent to him after the death of original landlord.
10. At this stage, it would be profitable to notice the definition of landlord defined in Section 2(b) of the Act of 1961, which reads thus:--
"2(b) "landlord" means a person, who, for the time being, is receiving, or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent, or be entitled to receive the rent, if the accommodation were let to a tenant and includes every person not being a tenant who from time to time derives title under a landlord;
11. A close reading of the definition of ''landlord'', it would show that landlord is a person either he is receiving the rent or is entitled to receive the rent of any accommodation. Definition of landlord as defined in Section 2(b) of the Act of 1961 is pari materia to the definition of Section 2(e) of the Delhi Rent Control Act, 1958, which states as under.
12. The Supreme Court, while considering the definition of Section 2(e) of the Delhi Rent Control Act, 1958, in case of
"...........''Tenant'', by definition (Sec 2(1)) means any person by whom or on whose account or behalf the rent of any premises is payable. Read in the context of the Rent Control law, the simple sense of the situation is that there should be a building which is let. There must be a landlord who collects rent and a tenant who pays it to the one whom he recognizes as landlord. The complications of estoppel or even the concepts of the Transfer of Property Act need not necessarily or inflexibly be imported into the proceedings under the rent control law tried by special Tribunals under a special statute. In this case, rent was being paid to the late Dass who had let out to the appellant, on the death of the former, the rent was being paid to the 1st respondent who signed the receipts in his name and added that it was on behalf of the estate of the deceased Dass. At a later stage the rent was being paid to and the receipts issued by the 1st respondent in his own name. Not that the little change made in the later receipts makes much of a difference, but the fact remains that the tenant in this case had been paying the rent to the 1st respondent. Therefore, the latter fell within the definition of ''landlord'', for the purpose of the Act. We are not impressed with the investigation into the law of real property and estoppel between landlord and tenant. Shri Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premises. The 1st respondent together with the other respondents, 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 qua land lord."
13. In the aforesaid decision, the Supreme Court has clearly held that one of the landlords collecting rent representing all is entitled to institute proceeding qua landlord. The Supreme Court has further held that co-owner owns every part of the composite property along with others and a co-owner instituting a suit in absence of other co-owner on record would not disentitle him from suing for eviction. Para 7 of the report states as under:--
"7. This Court, in
14. The Full Bench of M.P. High Court in case of
"9. In the instant case, the question formulated for consideration for the sake of convenience, may further be divided into twin questions as--
(i) Whether the widow/landlady who is a co-owner of the premises with others, alone can initiate proceedings for eviction of the tenant/applicant since she is not the sole owner of the premises but a sharer along with her sons, the property having been inherited from her late husband who originally owned the property; and
(ii) Whether the widow/non-applicant who alone falls in the special category of landlords as defined in section 23-J(iii) can seek an order for possession of the tenanted premises on the ground of her own bona fide need for residence and that of her married sons who do not fall within the special category of landlords as defined in section 23-J.
In connection with the first part of the question, it may be stated that some of the decision of the highest Court of Land provide a complete answer to the problem. In Sri Ram Pasricha Vs. Jagannath (1974) 4 SCC 184 relying on certain precedents and a passage from "Salmond on Jurisprudence" it was observed that under the general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant and, therefore, it is inconceivable to throw out the suit on account of non-impleading of other co-owners as such. Further, it has been held in the said report that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. This position will change only when partition takes place. This view was accepted and again reiterated by Supreme Court in Smt. Kanta Goel (supra), wherein it was held that a co owner is as much as owner of the entire property as any sole owner and the absence of other co owners will not disentitle a co-owner from maintaining an action for eviction when the other co-owners do not object to the same. This view was followed in a recent decision by the Supreme Court in Pal Singh Vs. Shri Sunder Singh (1989)1 SVLR (C) 54. This being the position of law, it has to be held that the widow/non-applicant, who is a co-owner/landlady of the premises with some others, can initiate eviction proceedings against the tenant in the absence of other co-owners if they do not object for the same.
15. Having ascertained the legal position holding that the plaintiff/co-landlord is entitled to maintain suit for eviction and mere payment of rent to other landlord - Ram Advani, will not preclude the present plaintiff to file a suit for eviction, turning back to the facts of the case, it appears that after the death of original landlord - Notan Das Advani, father of the plaintiff, plaintiff and Ram Advani both have inherited the suit accommodation. It has brought on record that since then, co-landlord and brother of plaintiff - Ram Advani is suffering from, Schizophrenia since long, the payment of rent, if any, by defendant/tenant to Shri Ram Advani, brother of plaintiff, will be treated as a payment of rent representing all the co-landlord including present plaintiff as held by Supreme Court in case of
Answer to 2nd substantial question of law.
16. The determination of first substantial question of law brings me to the next substantial question of law framed by this Court i.e. bonafide need of the plaintiff as defined in Section 12(1)(f) of the Act of 1961.
17. Admittedly, the plaintiff is an Advocate by profession; he has pleaded and stated in his evidence on record that he has no other reasonably suitable accommodation in the township of Raipur for starting his office. According to the defendant, the plaintiff has two accommodations in his possession, which can be said to be reasonably alternative suitable accommodation for office; firstly shop situated in the same building adjoining to the suit premises, which the defendant himself has clearly admitted in his evidence, [para 31] that on account of some family dispute that shop stands locked since long and it is not in possession of plaintiff for occupation and use for office. Apart from this, suit shop situated at Sindhi Bazar is also said to be the alternative accommodation and available in the plaintiff''s possession for the use of his office.
18. It is settled law that it is for the landlord who has to make selection, where he wish to carry on his office and the tenant cannot dictate, which is the best place suitable for his office.
19. The Supreme Court in case of
"13. Chambers 20th Century Dictionary defines bona fide to mean "in good faith : genuine". The word "genuine" means "natural : not spurious : real : pure : sincere". In Law Dictionary, Mozley and Whitley define bonafide to mean "good faith, without fraud or deceit". Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafide of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against."
20. Defendant has stated in his evidence that the Sindhi Bazar is a place where the garages are located and the loading, unloading and transporting work are being carried out there and, thus, it would not be suitable place for the lawyers'' office.
21. Thus, both the courts below have committed illegality in not granting decree under Section 12(1)(f) of the Act of 1961 to the plaintiff. The second substantial question of law is answered accordingly.
22. Resultantly, the appeal is allowed. Judgment & decree passed by both the courts below are set aside. Now, the plaintiff is entitled for decree under Section 12(1)(f) of the Act of 1961 with respect to the suit accommodation. It is directed that defendant shall deliver the vacant possession of suit accommodation situated at Ganesh Ram Nagar, Raipur, Tahsil & District Raipur, bearing Municipal No. 112 annexed with the plaint and marked as red ink. The plaintiff''s suit is decreed.
23. There shall be no order as to cost.
24. A decree be drawn-up accordingly. At this stage, at the request of Shri N.K. Vyas, learned counsel appearing for the respondent/defendant, 5 months'' time upto 21st September, 2014 is granted to vacate the suit accommodation subject to following conditions:
1. The respondent/defendant shall submit an usual written undertaking before the trial Court within 3 weeks from today that he shall deliver vacant and peaceful possession of the suit accommodation to the plaintiffs,
2. The respondent/defendant shall deposit a sum at the rate of Rs. 725/- per month with effect from 1st of May, 2014 till the actual date of vacation of the suit accommodation before the trial Court during the aforesaid period of 5 months for payment to the plaintiffs towards damages for occupation and use of the suit accommodation by the defendant, and
3. The respondent/defendant shall deposit the entire arrears of rent before the trial Court within 3 weeks from today for payment to the plaintiffs.
If the aforesaid three conditions are not complied with, the decree granted in favour of the plaintiff shall be executable forthwith in accordance with law.
