NARAIN Vs. LRS. OF SMT. ANSUYIYA BAI

JUDGEMENT

(1.) THE Petitioner, a tenant, has come up in revision under Section 23 -E of M. P. Accommodation Control Act, 1961, aggrieved by n order of eviction from a non -residential accommodation passed by the Rent Controlling Authority, Gwalior under Chapter III -A of the Act. The case of the landlord/non -Petitioner was that she was a widow and without any employment. She had a son by name Basantrao, aged 21 years, also unemployed. She pleaded bonafide requirement of the suit accommodation for starting a shop of stationery and book -binding work to be run by herself and her son Basantrao. The Defendant/Petitioner having contested the applications on merits, ultimately the Rent Controlling Authority found the case as pleaded by the landlord to be proved. At the trial, the landlord Ansuiyabai and her son Basantrao both had appeared as witnesses and substantiated the averments made in the application for eviction. Both the Statements were believed by the Authority. During pendency of revision before this Court, Ansuiyabai, the widow -landlord expired. Her two sons, namely, Basantrao and Ganpatrao have been allowed to be brought on record in place of late Ansuiyabai on an application made by the tenant/Petitioner. At the hearing Shri Ramji Sharma learned Counsel for the Petitioner with his usual vehemence and thrust has raised two substantial contentions. He submits, firstly, that the original landlord was late Madhavrao, husband of late Ansuiyabai and on the death of Madhavrao, the rights of landlord had developed upon the widow and also on the two sons, who all having not been joined as parties to the application for eviction, the application was had for nonjoinder of necessary parties. The application was bad also because need of Basantrao, a co -landlord, but not a landlord belonging to the categories of landlords contemplated by Section 23 -J of the Act could not have been pleaded by another co -landlord, a widow. His second submission is that Ansuiyabai having expired during the pendency of the revision, this Court was bound to notice the subsequent event and hence the order of eviction passed by the Authority was liable to be set aside. Shri D. K. Kothari, learned Counsel appearing earlier for the widow landlord and now for her legal representatives, has countered the contentions raised by Shri Ramji Sharma.

(2.) IN so far as the first contention raised by Shri Ramji Sharma is concerned, the same is no more res integra, the field having been covered by a number of authorities. When the property, subject -matter of tendency , is jointly owned by co -owners and has not been partitioned, every inch of it is much owned by one co -owner as by the other and as such a suit for eviction can certainly be maintained by one of the co -owners. Recently in Palsingh v. Shri Sundersingh (1989 MPRCJ 72) the Apex Court, following its own earlier two decisions, has held that when the other co -owners do not object to the eviction, one co -owner can maintain an action for eviction even in the absence of other co -owners the position will change only when a partition takes place. In Ghanshyamdas Gupta v. Shivaldas and Ors. ( : 1988 MPLJ 260) it was observed, "The definition of the term "landlord" in Section 2 (b) of the Act does not negative plurality of ownership of any premises or accommodation to deny claim by any person as a landlord of any premises to initiate action under Section 23 -A because it cannot be said that he was not entitled to receive rent from the person who was being sued as a tenant for an order of eviction against him." In Sushila Devi Somani v. Kedarnath (1987 JLJ 453), a Single Bench decision, the view taken was that a widow co -owner could not initiate proceedings for eviction of the tenant before the Rent Controlling Authority pleading requirement of her major son, who was a co -owner. The view ran in conflict with the view taken in other three single Bench decisions to the contrary and on a reference being made to a Division Bench in Shibraj Jat v. Ashalata Yadav and Ors. ( : 1989 MPLJ 202) it was held overruling the view taken in Sushila Devi's case (supra) that: - When legislation enables a landlord' to seek eviction if the leased premises are bona fide required by the landlord there can be no logic or justification for denying that relief to the landlord, because the major son or daughter of the landlord also happens to be co -owner of the leased premises. The first contention of the learned Counsel for the Petitioner on all its limbs is, therefore, over ruled. To examine the depth of the second contention raised by Shri Sharma, it will be useful first to examine the nature and scope of powers of revision conferred on the High Court under Section 23 -E of the Act, before examining the legal effect of the death of the landlord in such proceedings. While inserting Chapter III -A M. P. Accommodation Control Act, 1961, the Amending Act of 1983, chose to incorporate Section 3 -E(sic) also therein making an independent provision for exercise of revisional jurisdiction by the High Court inspite of Section 115 being available in the Code of Civil Procedure, 1908. A reading in juxta position of the provisions contained in Section 115 C. P C. and Section 23 -E of M. P. Accommodation Control Act, 1961 shows that jurisdiction under the latter provision has been made a little wider. Section 23 -E specifically speaks of suo motu exercise of revisional jurisdiction by the High Court apart from the same being exercised at the instance of a person aggrieved. The purpose of jurisdiction conferred on the High Court has been defined as for satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceedings of Rent Controlling Authority. The High Court has jurisdiction to pass such order as it thinks fit. This wide power has no fetters so as to be qualified or circumvented by any such riders as are to be found in Clauses (a) to (c) of Sub -section (1) of Section 115 C. P. C. or in Clauses (a) and (b) of the proviso thereto. Nevertheless the jurisdiction is not an appellate one. That is why on several occasions this Court has held that the power conferred by Section 23 -E is wider than that the limited power of revision under Section 115 C. P. C., but certainly not so wide as vests in a court of appeal. (See B. Johnson v. C. S. Naidu (1985 JLJ 675) and Mahendra Kumar Jain v. Dharamchand Jain ( : 1986 JLJ 145).