KARAN DHOBI Vs. SUNDER LAL

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit for ejectment, arrears of rent and damages tor use and occuption in respect of a quarter in Ahata No. 106/262, Anand Bagh, Kanpur. The defendant was the tenant at the rate of Rs. 9/- per month. One of the plaintiffs Sunder lal needed the house for his own use and occupation. He applied for and obtained permission to sue for the defendant's ejectment under S. 3 of U. P. Act 3 of 1947. The permission was granted. The defendant was also said to be in arrears of rent from 1.5.68. A combined notice demanding the arrears of rent and terminating the defendant's tenancy was served on 22.10.68. The defendant challenged the validity of the permission, the validity of the notice and the maintainability of the suit on the ground that Sunder lal alone was not the landlord. The plaintiff Govind Prasad and pro forma defendant Haira Lal, were co-owners with him. In the proceeding for permission under S. 3, of U. P. Act 3 of 1947 only Sunder lal had made the application and the permission had also been granted to him alone the notice was served by a lawyer who did State that it was being served on the instructions of Sunder Lal, Govind Prasad and Hira Lal, rather that it was being served on the instructions of bunder Lal, Govind Prasad and Hira Lal, rather there was evidence to show that only one of them had instructed the lawyer to serve the notice and it could not be said to have been served on behalf of ail the three. In the suit only Sunder lal and Govind Prasad had joined as plaintiffs. Hira lal refused to join and was included as pro forma defendant. The suit was decreed by the trial court holding against the defendant on all the three points, and che decree was confirmed by the lower appellate court. The learned counsel for the defendant appellant has reiterated all the three contentions. The first contention need not detain us. It is well settled by the decisions of this Court that "where permission is granted by the" Disrict Magistrate to the owner" to file a suit for the ejectment of "the tenant" is valid and enures to the benefit of the entire body of owners or landlords against the entire body of the class designated as "the tenant." Vide Moti lal v. Basant lal (A. 1. R. 1956 Alld. 175), and Janardan Swamp v. Devi Prasad(1958 A. L. J. 573). With regard to the notice the statement therein by tire advocate who had signed it that it was being sent on behalf of and on the instructions of Hira Lal, Govind Prasad and Sunder lal is, in my opinion, suffi cient to foreclose the issue. The learned counsel for the defendant. Appellant, however, invited my attention to the statement of Sunder lal (P. W. 3) where he had stated in cross-examination that he had personally gone to the lawyer's residence to have the notice sent, that lie had gone alone: that he had not earned any Vakalatnama on his behalf and on behalf of Hira lal and Govind Prasad at that time and also that he did not hold any power of attorney from Hira lal or Govind Prasad. He, however, also staled that he was managing the house in suit. The law does not require that a person must hold a power of attorney before he could instruct counsel on another's behalf nor does the law require the execution of a Vakalatnama in writing to enable the counsel to serve notice on behalf of his clients. The advocate has, in the notice served by him, clearly stated that he was doing so on behall, of and on the instructions of Hira Lal, Govind Prasad and Sunder Lal. It was for the lawyer who gave the notice to have satisfied himself with regard to his authority to act on behalf of all the three-co-owners in the present case. It is not open to the Court to equire into the same as professinal communications are privileged by virtue of S. 126 of the Indian Evidence Act. The person affected, namely, Hira lal who did not join the suit as a plaintiff has not come forward to say that the notice was not served on his behalf. With regard to the maintainability of the suit, this matter is also concluded by authority; vide Sluv Moorat Singh v. Jhabboo lal (Indian Cases 1930 Alld. 597), and Jarman Gomaz v. Ram Kumar (A. I. R. 1934 Cal. 127). The learned counsel for the appellant, however, contended that in paragraph 3 of the plaint it was stated by the two plaintiffs that notice had been sent on their behalf and further no relief had been claimed in favour of the pro forma defendant. The only relief claimed was by the two plaintiffs in their own favour. In the circumstances contended the learned counsel, the suit for defendant's ejectment and possession could not have been decreed in respect of the whole house in favour of the two plaintiffs own the whole house. Reliance was placed in this connection by the learned counsel for the appellants on two decisions; Abdul Hamid v. Bhuwneshwar Prasad (A. I. R. 1959Nagpur 18), and Smt. Chhotl Dei v. Gangadhar, (A. I. R. 1953 Orissa 245). The first of these cases laid down that a tenant cannot be ejected at the instance of only one of the land-lords. Where the tananoy has been created by serveral land-lords. All the joint landlords must join in giving notice to the tenant before terminating his tenancy. In the second case it was held that ' 'where a notice is given by brothers without joining their mother who has interest in the property at the time of the notice, the notice is invalid. These cases are besides the point as it has been found that the notice was served on behalf of all the three co-landlords in the present case. The learned counsel then relied on Ram Swamp v. Roshan (1964 A. L. J. 465), where it was held that "where a lease was granted jointly by two persons a suit for ejectment and an ears of rent could not be brought by one as he could not terminate the tenancy and the rent was also payable jointly to both". The relevant observations of the court on this point run as follows: "The suit for ejectment could only be brought by both the lessors jointly who had created the tenancy in favour of the appellant. The tenancy could not be terminated by and the relief could not be granted to any one of the two co-lessors. So far as the relief for arrears of rent was concerned, the rent was also payable jointly to both. Even the rent of the share of Lekh Raj could not be decreed in his favour until Shyam lal was made a party to the suit." The principle relief open by the court in the said observations is that a tenancy cannot be split up unilaterally. Therefore, it is necessary that all the co-landlords and all the co-tenants must be made party to suit for eject ment and the decree could not be passed in respect of a portion only of the leased accommodation. But it is not the law that if one of the co-landlords chooses not to join as plaintiff the other co-owners cannot get a decree for ejectment against the tenant. In such oases the co-landlord, who refuses to join as a plaintiff can be made a pro forma defendant to the suit and a decree can be passed in favour of the plaintilfs in respect of the whole accommodation. Such a decree enures to the benefit of the pro forma defendant and in case the pro forma defendant objects to such a course being adopted, it is open to him to do so by contesting the suit. The court can then adjudicate upon the matter and decide the issue between the plaintiff and the pro forma defendant before passing a decree or refuisng to pass the decree. The other two oases relied upon by the learned counsel for the appellant in this context bring out this principle. In Dhaneshwar Choudhary v. Subhodh Kumar (A. I. R. 1967 Cal. 334). It was held that a decree for realisation of the plaintiff's one-third share of rent could not be passed although the co-sharers were made pro forma defendants as the suit was not maintainable on the ground tint the contract for paying rent was one and indivisible. In Baraboni Coal Concern Ltd. v. The Servitors and Shebiats of Sree Gopinath Jiu, Gokulananda Mohanta Thakur and other (A. I. R. 1934 P. C. 58), it was held that "where the lease discloses a joint demise or contract, no one the four lessors, with or without the consent of his co-lessors, can sue for an aliquot part of the whole the suit must be for the whole of the interest demised, else it fails." In the present case the suit is for the whole of the accommodation and not for the plaintiff's undivided share. The appeal fails and is dismissed with costs.