Case: Dhannalal Vs. Kalawatibai

claim for eviction is filed by a landlord, or a co-landlord, belonging to any one of the five categories defined in Section 23-J of the Act, as the sole applicant without objection by other co-landlords who have not joined as co-applicants and the nature of claim for eviction is covered by Section 23-A(b) of the Act, the proceedings would lie only before the Rent Controlling Authority;(ii) where a claim for eviction is filed by a landlord or by such a co-landlord who does not belong to any of the categories defined by Section 23-J and the other co-landlord/landlady falling in one of the categories defined in Section 23-J is not joined as co-plaintiff the claim shall have to be filed only by way of a suit instituted in a Civil Court;(iii) if the proceedings are initiated by such co-owner landlords, one or more of whom belong to Section 23-J category while some others are those not falling within the definition of landlord under Section 23-J and the requirement pleaded provides a cause of action collectively to all the landlords arrayed as plaintiffs or applicants, the choice of forum lies with the landlords. They may file an application before R.C.A. under Chapter III-A or may file a civil suit in a Civil Court under Section 12 of the Act; in either case the proceedings would be competent and maintainable. 26. We are, therefore, of the opinion that there is no merit in the plea raised on behalf of the appellants that the three respondents, one widow and her two major sons, could not have initiated proceedings for eviction before the Rent Controlling Authority. We have carefully perused the two applications for eviction filed by the respondents. The bonafide requirement pleaded is of the widow landlady, the respondent no. 1, who requires the suit premises for Govinda, respondent no. 2 for starting his business and that of another son Hemant, the respondent no. 3 fo continuing the business which presently he is carrying on in rented premises. Respondents 2 and 3 being major sons of the widow respondent no. 1, such requirement clearly falls also within the purview of Section 23-A (b) of the Act. The proceedings initiated before R.C.A. do not suffer from want of jurisdictional competence.27. So far as the challenge to proof of requirement is concerned it merits a summary dismissal. The Rent Controlling Authority and the High Court, both, have on a meticulous evaluation of evidence found the requirement proved. None of the landlords is possessed of any other suitable alternative accommodation of his or her own to satisfy the requirement found proved. A landlord cannot be compelled to carry on business in rented premises and the proved requirement cannot be defeated by the tenant submitting that the landlord can start or comfortably continue to run his business in rented premises. It has come in evidence that the landlords have secured possession of some premises in Ahilyapura locality situated at a short distance from the suit premises but the Ahilyapura accommodation is again a tenanted accommodation and hence irrelevant for defeating the claim of the landlords. To be an alternative accommodation relevant within the meaning of Section 12(1)(f) or Section 23-A(b) it must be of his own, that is, the one owned by the landlord. Another alternative accommodation pointed out by the tenant is the one situated on the first floor of the building. It has come in the evidence that the second floor of the building is used for residence of the landlords while the first floor is used partly as a godown and partly for stitching the clothes which are sold as readymade garments in the shop of respondent no. 3. To amount to an alternate non-residential accommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitable non-residential accommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 this Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. The availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. The bona fides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court. For the business, which the respondents no. 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do. Moreover, there is no evidence adduced by the appellants to show that in M.T. Cloth market shops are also situated on first floor of buildings and attract the same business as the shops on ground floor do. The High Court and the R.C.A. have held none f the premises pointed out by the tenant-appellants such alternate accommodation as may defeat the respondents claim. e find no reason to take a different view. Between the year 1987 and 1989 late Krishna Das, the then sole owner of the building, had sold three shops but that was an event which had taken place in the life-time of late Krishna Das and cannot have relevance for denying the claim of the respondent-landlords filed in the year 1995.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Though the requirement pleaded is of all the landlords, i.e. the widow as also the other twoit is only the widow who can take advantage of the special procedure for eviction but the others two, who actually require the premises for theiruse, should have gone to Civil Court and cannot, under the law, have recourse to the forum of Rent Controlling Authority.We find ourselves in agreement with the view of the law taken by the High Court of M.P. in Shivraj Jats case (supra) and Harbans Singhs case (supra). An analysis of Section(b) of the Act shows that an application seeking eviction of tenant thereunder is maintainable if(i) the accommodation is let forpurpose; (ii) it is required bona fide by the landlord for the purpose of continuing or starting (a) his business, or (b) business of any of his major sons or unmarried daughters; (iii) the landlord is the owner of such accommodation or is holding accommodation for benefit of any person who requires the accommodation; and (iv) the landlord or such person has no other reasonably suitableaccommodation of his own in his occupation in the city or town concerned.16. It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha vs. Jagannath and Ors. (1976) 4 SCC 184 , Kanta Goel vs. B.P. Pathan and Ors.(1977) 2 SCC 814  and Pal Singh vs. Sunder Singh (dead) by Lrs. and Ors. (1989) 1 SCC 444  that one of thecan alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that otherwere not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, everyowns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the otherif such otherdo not object. In Shri Ram Pasrichas case (supra) reliance was placed by the tenant on the English rule that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail; the requirement must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectfully dissented from the rule of English Law. This Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being "if he is the owner", the expression as employed by Section 13(1)(f) of W.B. Premises Tenancy Act, 1956.Both the learned senior counsel for the parties stated that there is no specific statutory provision nor a building precedent available providing resolution to the problem posed. Procedural law cannot betray the substantive law by submitting to subordination of complexity. Courts equipped with power to interpret law are often posed with queries which may be ultimate. The judicial steps of judge then do stir to solve novel problems by neat innovations. When the statute does not provide the path and precedents abstain to lead, then they are the sound logic, rational reasoning, common sense and urge for public good which play as guides of those who decide. Wrong must not be left unredeemed and right not left unenforced. Forum ought to be revealed when it does not clearly exist or when it is doubted where it exists. When the lawes not debar any two seekers of justice from joining hands and moving together, they must have a common path. Multiplicity of proceedings should be avoided and same cause of action available to two at a time must not be forced to split and tried in two different fora as far as practicable and permissible.21. Reference to, or deriving aid from, certain legal maxims will be useful. Ubi jus ibi remediumthere is no wrong without a remedy. Where there is a right there is a forum for its enforcement. According to Brooms Legal Maxims (Tenth Edition,the maxim has been considered so valuable that it led to the invention of the form of action called an action on the case. Where no precedent of a writ can be produced, the clerks in Chancery shall agree in forming a new one. The principle adopted by courts of law accordingly is, that the novelty of the particular complaint alleged in an action on the case is no objection, provided that an injury cognizable by law be shown to have been inflicted on the plaintiff, in which case, although there be no precedent, the common law will judge according to the law of nature and the public good. If a man has a right, he must, "have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it, and, indeed, it is vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal".Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of plaintiffs choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.24. Reference may also be had to Section 17 of CPC which provides that where a suit is to obtain relief respecting immoveable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situated; provided that, in respect of the value of theof the suit, the entire claim is congnisable by such Court. The provision confers right on plaintiff suing on consolidate cause of action to choose one out of several fora available to him and it is his convenience and sweet will which will prevail. The provision is not an answer to the problem posed in the present case; nevertheless the principle underlying thereunder can be read out and pressed in servie. In Nrisingha Charan Nandy Choudhry vs. Rajniti Prasad Singh and Ors. AIR 1936 PC 189 , their Lordships referred to Section 17 of the CPC and termed it as the ordinary rule for determining the Court which can take congnizance of a suit for immoveable property situated within the local limits of two or more tribunals. Where cause of action is one against several defendants and they reside in different jurisdictions, the plaintiff may, under Section 20 of CPC file the suit in a court within whose jurisdiction any one of the defendants, at the time of the commencement of the suit, actually and voluntarily resides. Thus in case of a cause of action being triable in more than one forum it may be tried by any one forum subject to any other provision or rule of law.25. Reverting back to the issue before us, the cause of action is onerequirement of a major son, who himself is aIt is capable of being construed in two ways, depending on from the point of view of which of the landlords we look at. From the point of view of the widow landlady and owner it is a case of the accommodation let forpurpose required bona fide by the landlady for the purpose of continuing or staring the business of any of her major sons, within the meaning of Sectionof the Act.From the point of view of the major son himself, who is also himself an owner, it is a case of the accommodation let forpurpose required bona fide by the landlord for the purpose of continuing or starting his business as he is owner thereof, within the meaning of Section 12(1)(f)of the Act.In the former case the cause of action is triable by way of an application before R.C.A. In the latter case the cause of action is triable in a suit instituted in Civil Court. Any one of them may singally commence the proceedings without impleading the other or by impleading the other as aor defendant incapacity in which case the choice of forum would present no difficulty. The former shall go to R.C.A. The latter shall go to Civil Court. However, the law does not prevent thelandlords from joining together to sue on the cause of action common to them all. And if they do so the conflict of jurisdiction arises. The choice of forum, in such a case, must of necessity be left open to the plaintiffs. Otherwise they will be left withoutin view the three relevant principles (i) that every wrong must have a remedy and every right to relief must have a forum for enforcement, (ii) that plaintiff is dominus litis, and (iii) that onecan file a suit for ejectment of tenant and it is not necessary that allmust jointly sue for ejectment though they are not prevented fromrather entitled tojoining together and suing jointly if they wish to do so, we proceed to state our conclusions aswhere a claim for eviction is filed by a landlord, or abelonging to any one of the five categories defined in Sectionof the Act, as the sole applicant without objection by otherwho have not joined asand the nature of claim for eviction is covered by Sectionof the Act, the proceedings would lie only before the Rent Controlling Authority;(ii) where a claim for eviction is filed by a landlord or by such awho does not belong to any of the categories defined by Sectionand the otherfalling in one of the categories defined in Sectionis not joined asthe claim shall have to be filed only by way of a suit instituted in a Civil Court;(iii) if the proceedings are initiated by suchlandlords, one or more of whom belong to Sectioncategory while some others are those not falling within the definition of landlord under Sectionand the requirement pleaded provides a cause of action collectively to all the landlords arrayed as plaintiffs or applicants, the choice of forum lies with the landlords. They may file an application before R.C.A. under Chapteror may file a civil suit in a Civil Court under Section 12 of the Act; in either case the proceedings would be competent and maintainable.We are, therefore, of the opinion that there is no merit in the plea raised on behalf of the appellants that the three respondents, one widow and her two major sons, could not have initiated proceedings for eviction before the Rent Controlling Authority. We have carefully perused the two applications for eviction filed by the respondents. The bonafide requirement pleaded is of the widow landlady, the respondent no. 1, who requires the suit premises for Govinda, respondent no. 2 for starting his business and that of another son Hemant, the respondent no. 3 fo continuing the business which presently he is carrying on in rented premises. Respondents 2 and 3 being major sons of the widow respondent no. 1, such requirement clearly falls also within the purview of Section(b) of theThe proceedings initiated before R.C.A. do not suffer from want of jurisdictional competence.27. So far as the challenge to proof of requirement is concerned it merits a summary dismissal. The Rent Controlling Authority and the High Court, both, have on a meticulous evaluation of evidence found the requirement proved. None of the landlords is possessed of any other suitable alternative accommodation of his or her own to satisfy the requirement found proved. A landlord cannot be compelled to carry on business in rented premises and the proved requirement cannot be defeated by the tenant submitting that the landlord can start or comfortably continue to run his business in rented premises. It has come in evidence that the landlords have secured possession of some premises in Ahilyapura locality situated at a short distance from the suit premises but the Ahilyapura accommodation is again a tenanted accommodation and hence irrelevant for defeating the claim of the landlords. To be an alternative accommodation relevant within the meaning of Section 12(1)(f) or Sectionit must be of his own, that is, the one owned by the landlord. Another alternative accommodation pointed out by the tenant is the one situated on the first floor of the building. It has come in the evidence that the second floor of the building is used for residence of the landlords while the first floor is used partly as a godown and partly for stitching the clothes which are sold as readymade garments in the shop of respondent no. 3. To amount to an alternateaccommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitableaccommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222  this Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. The availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. The bona fides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court. For the business, which the respondents no. 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do. Moreover, there is no evidence adduced by the appellants to show that in M.T. Cloth market shops are also situated on first floor of buildings and attract the same business as the shops on ground floor do. The High Court and the R.C.A. have held none f the premises pointed out by thesuch alternate accommodation as may defeat the respondents claim. e find no reason to take a different view. Between the year 1987 and 1989 late Krishna Das, the then sole owner of the building, had sold three shops but that was an event which had taken place in theof late Krishna Das and cannot have relevance for denying the claim of thefiled in the year 1995.