Regular Second Appeal No. 3967 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3967 of 2008. (O&M) Date of Decision: 8.5.2009 *** Sanjay Mehta .. Appellant VS. Capt. Arun Kumar Sardana & Anr. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. B.P.S. Dhillon, Advocate for the appellant. Mr. Akshay Bhan, Advocate for the respondents. *** ARVIND KUMAR, J. The tenant-appellant has come up before this Court in the instant regular second appeal. He has been directed by both the Courts below to hand over the vacant possession of the rented premises as also to pay the rent as well as mesne profits for use and occupation thereof along with interest @ 9% per annum. The plaintiffs filed the suit and sought possession of the rented premises from the defendant on the averments that the same was rented out to the defendant for a period of 11 months @ Rs.3300/- per month vide rent/ lease deed dated 17.5.2004. Although the tenancy came to an end on 30.4.2005, but on written request of the defendants, it was extended twice up to 31.3.2006 and despite that the defendant did not vacate the premises and stop making the rent after February 2006, as a consequence thereof, the defendant was issued notice under Section 106 of the Transfer of Property Act calling upon him to restore the possession of the rented premises to the plaintiffs within 15 days. The defendant refused to accept the service of Regular Second Appeal No. 3967 of 2008 2 notice and ultimately the plaintiffs got instituted the suit claiming possession of the rented premises along with rent and mesne profits thereof from the defendant. The defendant contested the suit. He admitted that he was a tenant in the demised premises, but took the stand that the plaintiffs tried to forcibly dispossess him from the said house, as a result he filed a suit for permanent injunction wherein stay order was passed in his favour. It is further averred that the plaintiffs never approached him to vacate the premises in question and intentionally not accepted the rent to take a stand of non-payment of rent, rather he is ready and willing to deposit the rent at the agreed rate. The Courts below, as noticed above, directed the defendant to hand over the vacant possession of the house to the plaintiffs along with the rent and mesne profits thereof and interest @ 9% per annum. There was some variation in the rate of rent and mesne profits awarded by the trial court as well as by the appellate court. The trial court held the plaintiff entitled to receive rent at the agreeable rate of Rs.3300/- per month with increase @ 7% annually besides mesne profits @ Rs.6000/- per month from April 2006 till the handing over the possession while the first appellate Court modified the same by holding the plaintiff entitled to rent from 1.4.2005 to 31.3.2006 at the rate of Rs.3300/- plus 231(enhancement @ 7%) i.e. Rs.3531/- and mesne profits w.e.f. 1.4.2006 to 31.3.2007, from 1.4.2007 to 31.3.2008 and from 1.4.2008 to 31.3.2009 at the rate of Rs.3786, Rs. 4056/- and Rs.4338/- per month respectively. Dis-satisfied with the same, the defendant has approached this Court by way of instant regular second appeal. Before adverting further, it is relevant to have into account the admitted position of the case. The house in dispute bearing No. 24, situated at Sector 16, Panchkula is owned by Capt. Arun Kumar Sardana (Plaintiff No.1) and his wife Anjum Sardana. The premises were rented out to Sanjay Mehta (defendant) vide rent/lease deed dated 17.5.2004 by R.D. Sharma (Plaintiff No.2), the father of Anjum Sardana, on behalf of plaintiff No.1. The tenancy was created for 11 months w.e.f. 1.6.2004 till 30.4.2005 at monthly rent of Rs.3300/- excluding electricity and water charges. Despite the tenancy has come to an end, the defendant is still in possession of the Regular Second Appeal No. 3967 of 2008 3 rented premises. The writing (Ex.P-12) and affidavit (Ex.P-13) for extension of lease period up to 30.11.2005 and then to 31.3.2006, though denied to have been executed by the defendant, but in his cross examination he admitted his signatures thereupon and failed to substantiate as to under what circumstances, his signatures were procured thereupon. The plea that the plaintiffs never called upon him to vacate the house in dispute stand belied from the fact that in the lease deed itself it was mentioned that the tenant has to restore the vacant possession of the house after expiry of lease period and since the lease deed as well as extensions made were for specified period, the tenancy expired with the efflux of time. Not only this, it has come on record that the owners got issued a notice (Ex.P-14) dated 1.4.2006 under Section 106 of the Transfer of Property Act asking the defendant to vacate the premises in question, but the service thereof was refused by the defendant. Thus, finding no other way, the plaintiffs got instituted the present suit on 2.5.2006. All the aforesaid facts rightly led the Courts below to rank the defendant as trespasser on the rented premises after expiry of tenancy period and asked him to restore the possession thereof to the plaintiffs. The grouse of the appellant-defendant is with regard to the maintainability of the present suit. It has been contended that the owners of the house in question are plaintiff No.1 Arun Kumar Sardana as well as his wife, although they both got issued the notice under Section 106 of the Act ibid, but later she has not been joined in the suit as plaintiff and thus, due to non-joining of co-owner, the suit is not maintainable. Reference in this context has been made to the case of Nanalal Girdharilal & Anr. Vs. gulamnabi Jamalbhai Motowala & Ors. AIR 1973 Gujrat 131, upon reliance of which notice of motion was issued to the respondents. This question now stands concluded by a decision of the Hon'ble Apex Court in M/s India Umbrella Manufacturing Co. and Ors. v. Bhagabandei Agarwalla (Dead) by LRs. Smt. Savitri Agarwalla and Ors. [(2004) 3 SCC 178] wherein it was opined: "Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the co-owners can file a suit for Regular Second Appeal No. 3967 of 2008 4 eviction of a tenant in the property generally owned by the co-owners. (See Sri Ram Pasricha v. Jagannath and others 1976(4) SCC 184; Dhannalal v. Kalawatibai and others, 2002(6) SCC 16 (para 25.); RCR (Rent) 126(SC). 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 other co- owners is assumed as taken unless it is shown that the other co- owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised 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 act of parties or by operation of law." Similar view was reiterated by the Hon'ble Supreme Court in the case of Mohinder Parshad Jain Vs. Manohar Lal Jain AIR 2006 (SC) 1471, wherein, the Hon'ble Apex Court while relying upon the case of M/s India Umbrella (supra) held that a suit filed by a co-owner is maintainable in law and it is not necessary for the co-owner to show before initiating the eviction proceeding before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event, a co- owner objects thereto, the same may be a relevant fact. Thus, in the light of judicial pronouncements above, there is no doubt remain as to the maintainability of the present suit, especially when it is not the case of the defendant that there was any objection as to his ousting Regular Second Appeal No. 3967 of 2008 5 from the demised premises by another co-owner, who in fact joined hands with co-owner in issuing notice under Section 106 of the Transfer of Property Act asking the defendant to vacant the premises in question. So far as assessment of rent as well as mesne profits from the defendant for being in unauthorized occupation of the demised premises, as awarded by learned first appellate Court is concerned, it cannot be termed on higher side and needs no interference. In the light of above discussion, no substantial question of law, which is sine qua non for admission of appeal, is made out. The appeal is wholly without merits and the same is accordingly dismissed. No costs. (ARVIND KUMAR) JUDGE May 8,2009 Jiten