BRIJ RAJ PANDEY Vs. RAMANUJ

JUDGEMENT

(1.) THIS is a landlord's petition under Article 226 of the Constitution challenging the appellate order of the District Judge by which the petitioner's application under Section 21 of U. P. Act 13 of 1972 for release of his house in Mohalla Patkapur, Kanpur, was dismissed by Autho rity. The sole ground on which the learned District Judge acted was that in the course of the proceedings before the Prescribed Authority one of the three landlords had filed a compromise with the tenant respondents. The learned District Judge took the view that if one of the petitioners does not want the eviction of the accommodation in the tenancy of Ramanuj it would not be possible to release the accommodation in favour of the other two because if the tenant continues to be tenant of even one co- landlord he would have a right to continue in possession of the building. The view of the learned District Judge about the legal position after a compromise by one of the co- landlords in clearly erroneous. Reference may be made to Chhangur Ram v. Ganesh (1978(4) A.L.R. 126 (Summary)=1978 A.L.J. 486) In that case Mehrotra, J. after review of case law held that in a case where the co-landlords had terminated the tenancy one or more of the co-landlords cannot waive the notice or revive the tenancy or create a fresh tenancy and the same can be done only be all the co-owners acting together. Consequently, the Court upheld the refusal to record a compromise at the appellate stage between the tenant and some of the co-landlords under order 23, Rule 3 Civil Procedure Code. It was held that the compromise by some of the plaintiffs could not affect the right of the remaining plaintiffs to maintain the decree for eviction. The same principle would apply to a compromise by some of the co- landlords in the trial Court therefore. The question whether some only of the co-landlords can terminate the tenancy by service of a notice under Section 106, Transfer of Property Act, did not arise in Chhangur Ram's case (supra). The principle of Chhangur Ram's case can and should be applied to proceedings for eviction under Section 21 of the Act also. In the present case the application under Section 21 was duly filed by all the landlords and signed by them in accordance with Rule 15 (2). Therefore, the application under Section 21 was quite in order. The ground taken in the application, as appearing from the order of the prescribed Authority, was that the families of the three co-landlords had insufficient residential accommodation and required the tenanted premises for their own need. If this application were allowed on the principle of Chhangur Ram's case (supra) one co-landlord would not be able to affect the order by com promising with the tenant. Same would be the position qua a compromise during the pendency of the application before the Prescribed Authority. Mere compromise by some of the co-landlords with the tenant would not suffice for rejecting the application because the remaining landlords might very well be in a position to prove their claim from additional accommodation notwithstanding the defection of the compromising co-landlords. If this happens the application would be allowed notwithstanding the change of front through the compromise by one or more of the landlords. There is, however, one important difference between the effect of such a compromise on a suit and a proceeding under Section 21 of the Act. In a suit since the compromise cannot affect the termination of the tenancy and create any right in the tenant it can be rejected as invalid, in law and can be ignored, it has no effect on the controversy in the suit. In a proceeding under Section 21 where eviction of the tenant is sought on the ground of residential need of all the co-landlords, the compromise by one of the landlords may very well in greater degree affect the claim of requirement for landlord's residential need and even the controversy regarding comparative hardship. Therefore, this crucial aspect regarding the controversy of fact bona fide requirement by the landlords and comparative hardship has to be taken into account and considered while record in findings on those points. Therefore, where such a compromise is made after the evidence of the parties has been recorded but before the order it may in some cases be necessary to reconsider the facts and whether the defection by some of the landlords would affect the case on the points of need and comparative hardship in suitable cages parties may have to be allowed to lead evidence afresh to show the bearing of this defection on the need which was the ground in the application. Where evidence is adduced after the compromise in most cases this aspect will already be covered by evidence. Therefore, the question which the District Judge should have considered was whether the bona fide requirement had been established. Only in that connection the bearing of the compromise by one co-landlord could to be relevant. The District Judge has dealt with the mat ter erroneously as if the compromise by one co-landlord destroyed the whole case for release as a matter of law whereas the utmost he could have done was to consider the bearing of the compromise in connection with the question of fact before him, namely, whether the claim of the remaining landlords of bona fide requirement of the premises and greater comparative hardship was correct. The order of the District Judge, therefore, suffers from a manifest error of law and is unsustainable. In the result the Writ Petition is allowed and the appellate order of the District Judge dated, 7-5-1977 is quashed. The District Judge is directed to decide the appeal afresh on merits according to law in the light of observa tions made in this order. There shall be no order as to costs.