IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1880 OF 1989 Custodio Salvador Martis alias Simon. ... Plaintiff. V/s. Shivanand Sanjeevan Kamath and others. ... Defendant. Prakash Fernandes for the plaintiff. Santosh Shetty i/b. M.P.Vashi & Associates for defendant No.1. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 15th January 2008. DATED: 15th January 2008. DATED: 15th January 2008. P.C.: P.C.: P.C.: . This suit, for possession, was, initially, filed by plaintiff No.1- widow of one Philip Martis along with her sons, who were joined as plaintiff Nos.2 to 6, and daughters, who were joined as plaintiff Nos.7 to 9. Whereas two other daughters, who were not available for signing plaint, were arrayed as defendant Nos.2 and 3 to the plaint. That is how the entire body of owners and/or rather landlords and/or licensors was before the Court. 2. The deceased Philip Martis was a tenant in the premises wherein he was carrying said business of eating house and restaurant. The said Philip Martis expired on 31st December, 1985 leaving behind original plaintiff Nos.1 to 9 and defendant Nos.2 and 3 as stated hereinabove. 3. The case of the plaintiffs in the plaint was that plaintiff Nos.1 to 9 and defendant Nos.2 and 3 are the heirs and legal representatives of the deceased Philip Martis ("deceased" for short). The said Philip Martis owned eating house and restaurant run in the name of "Hollywood Stores And Restaurant" situate on the ground floor of Rehmani Building at Veer Nariman Road, Bombay- 400 001 ("suit property" for short). 4. The defendant No.1- Shivanand Sanjeevan Kamath was allowed by said Late Philip Martis to conduct his aforesaid business of eating house for a period of eight years under the agreement dated 1st July, 1969 which was renewed from time to time and last of such renewal was on 28th June, 1985. Thus, defendant No.1 was permitted to run eating house under the name and style of "Hollywood Stores and Restaurant". The agreement expired by efflux of time on 30th June, 1989. Consequently, plaintiff No.2 on his behalf and on behalf of other plaintiffs and defendant Nos.2 and 3 by notice dated 17th February, 1989 called upon defendant No.1 to quit and hand over possession of the premises with business run therein and offered to return the amount of deposit as they themselves had decided to run the said business. Since defendant No.1 did not vacate and delivered possession of the premises and the business of eating house run therein.The case of the plaintiffs in the plaint, when filed, was that the tenancy and other rights having devolved upon the plaintiffs and defendant Nos.2 and 3 after the death of said Philip Martis by heirship and law of succession, they became entitled to file suit against defendant No.1 for recovery of possession. 5. It appears that during pendency of the suit, original plaintiff No.1- Mrs.Florine Martis (widow of Philip Martis); plaintiff No.6- Valerian Martis and defendant No.7- Amelia Monis left for heavenly abode. Consequently, their heirs and legal representatives were brought on record. 6. It further appears that during the pendency of the suit, some dispute cropped up between the heirs of late Philip Martis. Some of the plaintiffs were not inclined to proceed with the suit; may be because of their settlement with defendant No.1; consequently, plaintiff Nos.3 to 9 were required to be transposed as defendant Nos.4 to 13. With the result, original plaintiff No.2 remained as sole plaintiff, as he alone desired to prosecute the suit against defendant No.1. Accordingly, amendments were allowed to be carried out. Some of the plaintiffs were transposed as defendant Nos.4 to 13. The writ of summons was taken out against them. However, they could not be served. With the result, for want of steps to effect service of writ of summons on them, suit against them came to be dismissed vide order dated 28th November, 2007 reading as under: "1. Learned Counsel for plaintiff did not take any steps to serve notice on the defendant Nos.2 to 13. On being asked, he showed reluctance to take steps to serve and virtually refused to take appropriate steps. Needless to mention that plaintiff has no choice to say that he will join those persons as party defendants but will not take steps to serve them. This suit is pending since 1989, i.e. for more than past 18 years. In the circumstances, looking to the attitude of the plaintiff suit is dismissed against the defendant Nos.2 to 13 for want of service of summons on them. 2. Defendant No.1 has filed his Written Statement. Parties are directed to circulate their draft issues so as to enable this Court to settle the same. 3. Stand over for one week." 7. With the dismissal of the suit against defendant Nos.2 to 13, the question of survival of the suit, at the instance of the sole plaintiff No.2- Custodio Salvador Martis, cropped up. Consequently, advocate for the plaintiff was called upon to address this Court as to how the suit would survive against defendant No.1 in absence of other joint landlords or owners of the suit property i.e. in absence of body of landlords. 8. The learned counsel appearing for the plaintiff was granted adjournment on more than 3 occasions, at his request, to get himself prepared and address this Court on this issue. 9. The learned counsel for the plaintiff, relying upon the judgment of the Apex Court in the case of Mahabir Prasad v. Jage Ram Mahabir Prasad v. Jage Ram Mahabir Prasad v. Jage Ram, AIR 1971 SC 741, urged that such a suit is very much maintainable in the present form notwithstanding its dismissal against some of the defendants (co-owners/ joint landlords). He, thus, prayed for trial of the suit on merits. 10. The contention advanced by the learned counsel for the plaintiff cannot be accepted in view of the settled legal position emerging from the various judgments referred to hereinafter. 11. In the case of Vagha Jaising v. Manilal Vagha Jaising v. Manilal Vagha Jaising v. Manilal Bhogilal Desai Bhogilal Desai Bhogilal Desai, AIR 1935 Bombay 262; wherein the reference has been made to the landlords’ rights belonging jointly to several persons. In the said judgment, this Court observed as under: "Landlord and Tenant - Several persons being landlords - All of them must sue jointly for recovery of rent on new basis or enhancement of rent. . Where the landlord’s rights belong jointly to several persons, a suit to eject tenant can only be brought by all the co-owners; it makes no difference whether the suit be technically one for enhancement of rent or to recover rent on a new basis of calculation." (emphasis supplied) 12. In the case of Rama Motibhai v. Dalwadi Rama Motibhai v. Dalwadi Rama Motibhai v. Dalwadi Tupoo Rama Tupoo Rama Tupoo Rama, AIR 1956 Bombay 264, the Division Bench of this Court held as under: "(4) Mr.Chhatrapati for the applicant- landlord says that although his client may not be the sole owner of the land, he can still maintain this application, because he says that one co-owner can file a suit on behalf of all the co-owners. Now, it is true that as against a trespasser one co-owner on behalf of all the co-owners can maintain action. . But if an action is to be filed against a tenant, then all the co-owners must be joined. In this connection it may be pertinent to refer to the observations of the learned Chief Justice in ‘Appeal No.48 of 1952’ from Original Decree which was ‘decided’ by this Court on ‘11-11-1952 (Bom) (SA). The learned Chief Justice stated in the course of his judgment: "..... as far as the trespasser is concerned the principle seems to be that any co-owner is entitled to defend the title to the property in which he is interested by seeking to eject a person who has no right to the property at all, but when we come to the case of a tenant, all persons interested in the property must join in filing the suit." There is, therefore, no force in Mr.Chhatrapati’s submission that although the applicant may not be the full owner of the property but may only be one of the co-sharers in the property, he can still maintain this application. (5) ...... The Bombay Revenue Tribunal was apparently satisfied from the record before it that in this particular land Rana Motibhai Sartansang and certain other persons were co-sharers and that Rana Motibhai Sartansang alone was not competent to file the application under S.34 of the Bombay Tenancy and Agricultural Lands Act. We agree that that was the correct view to take on the material before the Revenue Tribunal." (emphasis supplied) 13. The above view of this Court is in consonance with the view of the Nagpur High Court as can be seen from the decision in Abdul Hamid v. Abdul Hamid v. Abdul Hamid v. Bhuwaneshwar Prasad Bhuwaneshwar Prasad Bhuwaneshwar Prasad, AIR 1953 Nagpur 18; wherein the Court ruled as under: "Transfer of Property Act (1882), S. 106 - Co-lessors - Notice to quit. . A tenant cannot be ejected at the instance of only one of the landlords where the tenancy has been created by several landlords. All the joint landlords must join in giving notice to the tenant before terminating his tenancy. Case law discussed." (emphasis supplied) The view of the Calcutta High Court in Aswini Aswini Aswini Kumar Roy v. Kshitish Chandra Sen Gupta Kumar Roy v. Kshitish Chandra Sen Gupta Kumar Roy v. Kshitish Chandra Sen Gupta, AIR 1971 Calcutta 252 is also in consonance with the above views; wherein the Court held that for the recovery of possession suit become incompetent if some of the co-owners are not impleaded. While taking this view, the Calcutta High Court relied upon the judgment of the Apex Court in the case of Kanakarathnammal v. V.S.Loganath Mudaliar Kanakarathnammal v. V.S.Loganath Mudaliar Kanakarathnammal v. V.S.Loganath Mudaliar, AIR 1965 SC 271; wherein, after discussing factual matrix; (at page 275); their Lordships observed has under: " Therefore, we are satisfied that the trial court was right in coming to the conclusion that even if the property belonged to the appellant’s mother, her failure to implead her brothers who would inherit the property along with her makes the suit incompetent. It is true that this question had not been considered by the High Court, but since it is a pure point of law depending upon the construction of Section 10 of the Act, we do not think it necessary to remand the case for that purpose to the High Court." (emphasis supplied) 14. In view of the aforesaid settled legal position unless all the co-owners or the joint landlords or the body of landlords, who are entitled to inherit the property from late Philip Martis, are party to the suit, the suit would be incompetent. In view of dismissal of the suit against defendant Nos.2 to 13 and since the dismissal has become final, there cannot be two inconsistent decrees in one suit; as held by this Court in the case of Sheela wd/o Vijay v. Central Sheela wd/o Vijay v. Central Sheela wd/o Vijay v. Central Bank Bank Bank, 1998 (1) Mh.L.J. 928. 15. In view of dismissal of the suit against all other co-owners, the suit is liable to be dismissed. No useful purpose would be served by trying the suit on merits. Hence the suit is dismissed with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)