Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 413

IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR BIRLA, J.
M/s A.B. Corporation - Appellant
Versus
Vishnu Kumar Agrawal and Others - Respondent
WRIT - A No. 125 of 2021
Decided On : 19-03-2021

Advocates:
Advocate Appeared:
For the Appellant : Saurabh Srivastava
For the Respondent: Manish Kumar Nigam

Point of Law: Landlord and tenant relationship - Court do not find any good ground to entertain present petition on ground of tenant and landlord relationship in present case between parties and that it requires any interpretation of Section 3(j) of Act.

Headnote:
Urban Buildings (Regulation of Letting, Rent and Eviction) Act - Section 3 (j) - Rule 15(2) - Tenant – Quashing of Order - original owner of the property in question was late Suraj Bhan Agrawal and after his death property was inherited by three sons and formal opposite party no. 2 in the release application) and formal opposite party no. 3 in release application - The petitioner is tenant pursuant to the order of the allotment in year 1965. The release application was contested by tenant on the ground that the applicant is not the landlord of the shop and as such the release application at his instance is not maintainable - Contention of counsel for the petitioner is that the applicant was not landlord in view of definition of Section 3(j) of Act - Whether mere fact that somebody de facto realizes rent, will determine status, realised in his independent right and capacity as landlord or the same is being realised in representative capacity for the benefit of another person.
Finding of the court: Court find that the suit has admittedly been filed by Suman Prakash. It was admitted in the replication that the property is of HUF of which plaintiff-respondent is the Karta and he is entitled to file the present suit. It is also pertinent to note that no other person has come forward to claim the ownership or landlordship in the present case. The status of the defendant-petitioner herein as tenant is also not in dispute. It is settled law that in the rent control matters the landlord-tenant relationship is to be seen. It is also settled law that one co-owner is entitled to initiated the proceedings against the tenant - 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 eviction of a tenant in the property generally owned by the co-owners. If rent is being collected in representative capacity for the benefit of actual owner, then it will be the owner who shall be the landlord. Otherwise a servant or a brother authorised by original owner to realize rent on his behalf from tenant will become landlord. Law does not contemplate such a situation - I do not find any good ground to interfere in the orders impugned herein. The courts below have recorded concurrent findings of fact on bonafide need as well as on comparative hardship. The scope of interference under Article 226 of the Constitution of India on such finding of fact is extremely limited. Therefore, I do not find any good ground to entertain present petition on the ground of tenant and landlord relationship in the present case between the parties and that it requires any interpretation of Section 3(j) of the Act. The law is already settled on this issue.
Result: Petition Dismissed

JUDGMENT :

1. Heard Sri Saurabh Srivastava, learned counsel for the tenant-petitioner and Sri Manish Kumar Nigam, learned counsel appearing for the landlord-respondent no. 1.

2. Present petition has been filed for quashing the order dated 14.10.2019 passed by the Presribed Authority / Civil Judge (J.D.), Kanpur Nagar in Rent Case No. 2 of 2016 (Vishnu Kumar Agrwal vs. M/s A.B. Corporation and others) as well as order dated 1.12.2020 passed by the Additional District Judge, Court No. 11, Kanpur Nagar in Rent Appeal No. 50 of 2019 (M/s A.B. Corporation vs. Vishnu Kumar Agrwal and others).

3. By the order dated 14.10.2019 the Prescribed Authority allowed the release application filed by Vishnu Kumar Agrawal against the tenant-petitioner herein. The appeal filed by the tenant was dismissed by the impugned judgment dated 1.12.2020.

4. The release application was filed with the specific allegations that Vishnu Kumar Agrawal is the co-owner / co-landlord; the original owner of the property in question was late Suraj Bhan Agrawal and after his death the property was inherited by three sons namely Vishnu Kumar Agrawal (release applicant), Virendra Kumar Agrawal (eldest son and formal opposite party no. 2 in the release application) and Om Prakash Agrawal (formal opposite party no. 3 in the release application). The petitioner is tenant pursuant to the order of the allotment in the year 1965.

5. The release application was contested by the tenant on the ground that the applicant is not the landlord of the shop and as such the release application at his instance is not maintainable. It was submitted that the rent was being collected by Virendra Kumar Agrawal as Karta of HUF and therefore, the release application filed by Vishnu Kumar Agrawal was not maintainable as only Virendra Kumar Agrawal would be landlord in view of the definition of the word 'landlord' as prescribed in Section 3 (j) of the Act 13 of 1972 (hereinafter referred to as the Act).

6. The landlord and tenant relationship was found between the parties and the bonafide need and the comparative hardship was also decided in favour of the landlord by the Prescribed Authority.

7. In the appeal three points of determination were framed by the appellate court, (1) landlord and tenant relationship between the parties; (2) bonafide need; and (3) comparative hardship. On the issue of landlord and tenant relationship it was found that admittedly, after death of Suraj Bhan Agrawal the rent receipts were issued by Virendra Kumar Agrawal in the name of M/s Kashi Ram Suraj Bhan HUF and admittedly, Virendra Kumar Agrawal was the Karta of the HUF as being eldest son of Suraj Bhan Agrawal. Lower appellate court has considered the documents of OS No. 1201 of 1999, judgment dated 31.10.2005, OS No. 345 of 2009, orders dated 20.12.2012 and 6.8.2016 and found that the applicant was a co-owner / co-landlord of the property in question and the same could not be rebutted by the tenant-appellant. The appellate court had also considered the written statement filed by Virendra Kumar Agrawal, wherein he had stated that since Vishnu Kumar Agrawal is not cooperating in the litigation, therefore, it would not be proper to treat the plaintiff as co-landlord / co-owner and it was further stated by him that the release application was filed without his consultation. It was found that by the judgment dated 31.10.2005 rendered in OS No. 1201 of 1999 the applicant-landlord was found to be co-owner / co-landlord of the property in question. All the co-owerns were made formal parties in the release application and therefore, concurrent finding was returned that there was a landlord and tenant relationship between the parties. On the issue of bonafide need, it was found that the property already in possession of the landlord is being used in different manner to meet out the need of the landlord as given in the release application. It was also noticed that the assertions made by the landlord that the property in question