Tag Archives: Tenanted Premises

One Co-Owner – Can Maintain An Action for Eviction

One co-owner, in the absence of any objection from the other co-owners, can maintain an action for eviction against a tenant, without impleading all the co-owners. The governing principle is the doctrine of agency. When one co-owner institutes a suit for eviction against the tenant, it is construed as the suit having been instituted in his own right and also as an agent of the other co-owners. What is of importance is the jural-relationship of the landlord and tenant. Once a co-owner satisfies the description of the landlord, the fact that the other co-owners have not joined in action pales in significance and does not affect the maintainability of the suit. Of course, different considerations come into play when existence of a dispute between the co-owners as regards the institution of the very action of eviction, is brought to the notice of the Court.

A reference in this context can be made to a decision of the Hon’ble Supreme Court in the case of Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 2 SCC 724, wherein it was held as under:

This question now stands concluded by a decision of this Court in India Umbrella Manufacturing Cov. Bhagabandei Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt.), (2004) 3 SCC 178,wherein the Hon’ble Court opined:

 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. (See Sri. Ram Pasricha v. Jagannath, (1976) 4 SCC 184 and Dhannalal v. Kalawatibai, (2002) 6 SCC 16.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.”

A suit filed by a co-owner, thus, is maintainable in law. 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. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein.

 This aspect was again considered by the Hon’ble Supreme Court in the case of Boorugu Mahadev and Sons v. Sirigiri Narasing Rao, (2016) 3 SCC 343, in the context of the proceedings between a landlord and tenant, governed by the rent control legislation. The Supreme Court enunciated that the concept of ownership and consequently the right to sue, in such cases, has to be distinguished from the one in a title suit. The observations in the said judgment are extracted below:

 It is also now a settled principle of law that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. (vide Sheela v. Firm Prahlad Rai Prem Prakash(2002) 3 SCC 375).” Madhuri Doulatram Choitram v. Lachmandas Tulsiram Nayar, 2019 SCC Online Bom 6111.

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Once Lease or Tenancy Stands Determined – Tenant’s Right to Possess the Leased Property Ends

In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705, the Hon’ble Supreme Court observed that “the litigation goes on for an unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises.” It has, then, observed that once the lease or tenancy stands determined, say, through a decree from a competent court, the tenant’s right to continue to possess the leased property ends. And for his continued use and occupation of the property for any period thereafter, he must pay damages at the rate the landlord could have let out the premises if there had been no tenant or the tenant had vacated with the lease termination. Thus, Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 has summed up the principles of interim compensation:

(1) while passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and in so far as those proceedings are concerned. Such terms, needless to say, shall be reasonable;

(2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree; (3) the doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a later date. Ishwarlal Vrajlal Mistry v. Manohar U. Shetty, Writ Petition No. 13100 of 2018 decided on 18.12.2019.

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Statutory Tenant

 In Gian Devi Anand v. Jeevan Kumar, (1985) 2 SCC 683, a Constitution Bench of the Hon’ble Supreme Court dealt with the question – whether the rule of heritability extends to a statutory tenancy of commercial premises as much as it did to residential premises under the Delhi Rent Control Act, 1958. The Court while holding this in the affirmative discussed the concept of statutory tenant and held thus:

“”Statutory tenant” is not an expression to be found in any provision of the Delhi Rent Control Act, 1958 or the rent control legislation of any other State. It is an expression coined by the Judges in England and, like many other concepts in English law, it has been imported into the jurisprudence of this country and has become an expression of common use to denote a tenant whose contractual tenancy has been determined but who is continuing in possession of the premises by virtue of the protection against eviction afforded to him by the rent control legislation. Though the expression “statutory tenant” has not been used in any rent control legislation the concept of statutory tenant finds recognition in almost every rent control legislation.…

It is also important to note that notwithstanding the termination of the contractual tenancy by the landlord, the tenant is afforded protection against eviction and is permitted to continue to remain in possession even after the termination of the contractual tenancy by the Act in question and invariably by all the Rent Acts in force in various States so long as an order or decree for eviction against the tenant on any of the grounds specified in such Acts on the basis of which an order or decree for eviction against the tenant can be passed, is not passed.

The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act; and, the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contrary.”

         In Krishna Prosad Bose v. Sarajubala Dassi , AIR 1961 Cal 505, it was held as under:   “The Rent Control and the Tenancy Acts create a special world of their own. They speak of life after death. The statutory tenancy arises phoenix-like out of the ashes of the contractual tenancy. The contractual tenant may die but the statutory tenant may live long thereafter. The statutory tenant is an ex-tenant and yet he is a tenant.” R.S. Grewal v. Chander Parkash Soni, (2019) 6 SCC 216.

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