# M/s A.B. Corp., Kanpur Nagar v. Vishnu Kumar Agarwal & Ors

- **Citation:** (2021) 4 ILRA 206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-19
- **Case number:** Writ A (Rent Control) No. 125 of 2021
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-a-b-corp-kanpur-nagar-v-vishnu-kumar-agarwal-ors-46984
- **Pages:** 10

## Headnote

A. Civil Law - Rent Control - The U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 - Section 3(j)
- One co-owner is competent to maintain
an action for eviction of the tenant of the
entire
premises,
since
he
can
be
considered as a landlord within the
meaning of Section 3(j) of the Act. One coowner alone would be competent to sign
application for release of premises. (Para
12)

In the present case, the applicant was the
landlord for the purpose of filing of the release
application and is covered under definition of
'landlord' as given Section 3(j) of the Act. (Para
9)

In the appeal three points of determination
were framed by the appellate court, (1) landlord
and tenant relationship between the parties; (2)
bona fide need; and (3) comparative hardship.

Concurrent finding was returned that
there
was
a
landlord
and
tenant
relationship between the parties. (Para 7)
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
4 All. M/s A.B. Corp., Kanpur Nagar Vs. Vishnu Kumar Agarwal & Ors.
207
the landlord as given in the release
application. (Para 7, 18)

It was also noticed that the assertions made by
the landlord that the property in question is
lying locked and is not being used, could not be
disputed by the tenant. It was further found
that no effort was made by the tenant to search
out any other alternative accommodation.
Hence,
A
concurrent
finding
on
comparative hardship was also recorded
in favour of the landlord. (Para 7, 18)

B. A non-petitioning co-landlord can be
arrayed as proforma respondent and
omission to sign application by a landlord,
in
such
a
case
would
be
of
no
consequence. (Para 11)

C. No relief can be granted to the tenant
on the ground that the person, who was
receiving the rent has not filed the release
application. (Para 19)

It is, open to even one of the several colandlords to realise rent from the tenant on
behalf of the co-landlords and normally it is
convenient for the tenant also to pay rent to
one of the several co-landlords. (Para 11)

Whether mere fact that somebody de
facto realizes rent, will determine status,
is not a correct proposition of law. It has to
be found out whether rent is being realised in
his independent right and capacity as landlord
or the same is being realised in representative
capacity for the benefit of another person. 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. (Para 13)

The main argument on behalf of tenantpetitioner is that the applicant is not the
landlord as the rent was being collected by
Virendra Kumar Agrawal as Karta of the HUF
and only he could have file

## Text

206 INDIAN LAW REPORTS ALLAHABAD SERIES
demanded, as has been noted by the
authority in the impugned order. The
medical certificate, brought on record,
merely prescribes four weeks bed rest due
to complaint of low back pain. The
certificate is not supported by any medical
prescription nor the course and nature of
treatment undergone by the petitioner. The
issue whether the petitioner was justified in
not complying the order of posting due to
his illness rests upon the genuineness of his
medical treatment. The onus in the first
instance is upon the petitioner to discharge
the
burden.
The
medical
certificate
prescribing bed rest and not supported by
any other material to show the nature and
followup treatment to support the stand of
the petitioner is a question of fact resting
upon evidentiary determination, which
cannot be gone into under Article 226 of
the Constitution in the first instance. The
motive or foundation for passing the
termination order that weighted with the
employer would rest upon evidence of the
respective parties. The petitioner in the
circumstances would have to seek remedy
before the appropriate authority/forum.

30. The writ petition, in the
circumstances would not be maintainable,
accordingly, disposed of with liberty to the
petitioner to take recourse to alternative
remedy.

31. It is clarified that the observations
made in the order touching upon the merit
of the case would have no bearing, the
authority/forum to decide independently on
merit without being influenced by the
observations.

32. No costs.
----------
(2021)04ILR A206
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ A (Rent Control) No. 125 of 2021

M/s A.B. Corp., Kanpur Nagar ...Petitioner
Versus
Vishnu Kumar Agarwal & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Saurabh Srivastava

Counsel for the Respondents:
Sri Manish Kumar Nigam

A. Civil Law - Rent Control - The U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 - Section 3(j)
- One co-owner is competent to maintain
an action for eviction of the tenant of the
entire
premises,
since
he
can
be
considered as a landlord within the
meaning of Section 3(j) of the Act. One coowner alone would be competent to sign
application for release of premises. (Para
12)

In the present case, the applicant was the
landlord for the purpose of filing of the release
application and is covered under definition of
'landlord' as given Section 3(j) of the Act. (Para
9)

In the appeal three points of determination
were framed by the appellate court, (1) landlord
and tenant relationship between the parties; (2)
bona fide need; and (3) comparative hardship.

Concurrent finding was returned that
there
was
a
landlord
and
tenant
relationship between the parties. (Para 7)
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
4 All. M/s A.B. Corp., Kanpur Nagar Vs. Vishnu Kumar Agarwal & Ors.
207
the landlord as given in the release
application. (Para 7, 18)

It was also noticed that the assertions made by
the landlord that the property in question is
lying locked and is not being used, could not be
disputed by the tenant. It was further found
that no effort was made by the tenant to search
out any other alternative accommodation.
Hence,
A
concurrent
finding
on
comparative hardship was also recorded
in favour of the landlord. (Para 7, 18)

B. A non-petitioning co-landlord can be
arrayed as proforma respondent and
omission to sign application by a landlord,
in
such
a
case
would
be
of
no
consequence. (Para 11)

C. No relief can be granted to the tenant
on the ground that the person, who was
receiving the rent has not filed the release
application. (Para 19)

It is, open to even one of the several colandlords to realise rent from the tenant on
behalf of the co-landlords and normally it is
convenient for the tenant also to pay rent to
one of the several co-landlords. (Para 11)

Whether mere fact that somebody de
facto realizes rent, will determine status,
is not a correct proposition of law. It has to
be found out whether rent is being realised in
his independent right and capacity as landlord
or the same is being realised in representative
capacity for the benefit of another person. 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. (Para 13)

The main argument on behalf of tenantpetitioner is that the applicant is not the
landlord as the rent was being collected by
Virendra Kumar Agrawal as Karta of the HUF
and only he could have filed release application.
In such matters the term 'landlord' is used in
different meaning and if one co-owner files
release application, the same, even without
impleading the other co-owners, would be
maintainable. In the present case, the other coowners/co-landlords were impleaded as formal
parties and even Virendra Kumar Agrawal has
filed his written statement. The release of the
shop in question in favour of Vishnu Kumar
Agrawal has never been disputed. The original
owner/landlord was Suraj Bhan Agrawal and his
three sons namely, Vishnu Kumar Agrawal,
Virendra Kumar Agrawal and Om Prakash
Agrawal inherited the property. It is also not in
dispute that the rent is being collected by
Virendra Kumar Agrawal only as Karta of the
family (HUF) for the benefit of all and in the
other original proceedings it was held by the
civil court that he is co-owner/co-landlord of the
property in question. (Para 17)

D. The concept of ownership in a landlordtenant litigation governed by Rent control
laws has to be distinguished from the one
in a title suit. (Para 14)

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
initiate
the
proceedings against the tenant. It may also
be noticed that it is not a case of property
dispute where filing of the suit on behalf of
Karta or any other coparcener may be
claimed to have material effect on the
proceedings.
Suffice
to
note
that
a
coparcener is any of several people who
share an inheritance. (Para 15)

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.
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.
(Para 15)
208 INDIAN LAW REPORTS ALLAHABAD SERIES
A suit filed by a co-owner, 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. (Para
15)

Writ petition dismissed. (E-3)

Precedent followed:

1. Smt. Hamidan Vs Vth A.D.J., Allahabad 1983
ARC 405 (Para 9)

2. Gopal Das & anr.Vs Ist A.D.J., Varanasi &
ors., 1987 (1) ARC 281 (Para 9)

3. Om Prakash Mittal Vs Vth A.D.J., Ghaziabad &
ors., 2000 (2) ARC 111 (Para 9)

4. Board of Basic Education, U.P. Allahabad &
ors. Vs VIth Addl. District & Sessions Judge,
Kanpur Nagar & ors., 2007 (3) ARC 591 (Para 9)

5. Boorugi Mahadaev & Sibs (M/s. ) & anr. Vs
Sirgiri Narsing Rao & ors., 2016 (1) ARC 490
(Para 14)

6. Manoj Kumar Vs Suman Prakash, 2019 (3)
ARC 614 (Para 15)

7. Apollo Zipper India Ltd. Vs W. Newman &
Comp. Ltd., 2018 (6) SCC 744 (Para 16)

Present petition challenges orders dated
14.10.2019 and 01.12.2020, passed by
Prescribed Authority/Civil Judge (J.D.),
Kanpur Nagar and Additional District
Judge, Kanpur Nagar respectively.

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Saurabh Srivastava,
learned counsel for the tenant-petitioner
and Sri Manish Kumar Nigam, learned
counsel
appearing
for
the
landlordrespondent 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 / colandlord; 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
4 All. M/s A.B. Corp., Kanpur Nagar Vs. Vishnu Kumar Agarwal & Ors.
209
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 applicantlandlord was found to be co-owner / colandlord 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 is
lying lock and is not being used, could not
be disputed by the tenant. It was further
found that no effort was made by the tenant
to
search
out
any other
alternative
accommodation.
Hence,
a
concurrent
finding on comparative hardship was also
recorded in favour of the landlord.

8.

Challenging
the
aforesaid
judgments, main contention of learned
counsel for the petitioner is that the release
applicant was not the landlord in view of
definition of Section 3(j) of the Act. He had
drawn attention to paragraph 4 of the
written statement filed by Vishnu Kumar
Agrawal in OS No. 1201 of 1999 to submit
that the plaintiff is not the co-landlord and
defendant no. 1 in the said suit Virendra
Kumar Agrawal was admitted as a sole
landlord
and
therefore,
the
release
application was not maintainable. He has
also advanced his arguments on the issue of
bonafide need and comparative hardship.

9. Per contra, Sri Manish Kumar
Nigam, learned counsel for the respondent
submitted that concurrent finding has been
recorded by both the courts below that the
applicant was the landlord for the purpose
of filing of the release application and is
covered under the definition of 'landlord' as
given in Section 3(j) of the Act. Attention
was drawn to the findings recorded by the
lower appellate court, wherein contention
210 INDIAN LAW REPORTS ALLAHABAD SERIES
raised by learned counsel for the petitioner
were dealt with specifically. The finding
returned by the lower appellate authority on
the point of determination no. 1 regarding
landlord and tenant relationship were
specifically dealt with in paragraphs 9 to
19. In support of his arguments learned
counsel for the respondent has placed
reliance on judgments in the cases of Smt.
Hamidan vs. Vth Addl. District Judge,
Allahabad 1983 ARC 405 (paragraph 7),
Gopal Das and another vs. Ist Additional
District Judge, Varanasi and others 1987
(1) ARC 281 (paragraph 17), Om
Prakash Mittal vs. Vth Addl. District
Judge, Ghaziabad and others 2000 (2)
ARC 111 (paragraph 16) and Board of
Basic Education, U.P. Allahabad and
others vs. VIth Addl. District & Sessions
Judge, Kanpur Nagar and others 2007
(3) ARC 591 (paragraph 18).

10. I have considered the submissions
and have perused the record.

11 . Before proceeding further it
would be appropriate to refer some case
laws. Paragraph 7 of Smt. Hamidan
(supra) is quoted as under:-

"7. Moreover, as has been held by
the Supreme Court in Ambika Prasad v.
Ram Ekbal Rai AIR 1966 SC 605 (SC) title
cannot pass by mere admission. Apart from
the admission in the aforesaid affidavit no
other evidence about the private settlement
referred to therein seems to have been
produced. The petitioner appears to have
set up a case that in pursuance of some gift
made by her husband she alone was entitled
to the house in question. That case has not
been believed by the authorities below.
Indeed in her affidavit filed subsequently
on which reliance has been placed even by
counsel for the respondent No. 3 the
petitioner had given up her case that she
was the exclusive owner of the house in
question. In the absence of a valid gift in
favour of the petitioner and the admission
made by her in the proceedings for
mutation
not
being
relevant
for
determination of the question of tile, it was
apparent that on the death of Mohd. Yaqub
the house in question devolved on all his
heirs,
namely,
the
petitioner
and
respondents 4 to 7. As such all of them
became co-owners of the house in question.
Since in their capacity as co-owners of the
house they were all entitled to realise rent
from the respondent No. 3, they would be
co-landlords also. It is, however, open to
even one of the several co-landlords to
realise rent from the tenant on behalf of the
co-landlords and normally it is convenient
for the tenant also to pay rent to one of the
several co-landlords. In the absence of any
finding as to ouster the petitioner even if,
she was realising the rent exclusively will
be deemed to be realising it not only on her
behalf but on behalf of the other colandlords also. This being the legal position
the assertion of the petitioner in one of her
affidavits that she was realising rent herself
and her assertion in the other affidavit that
she was realising it on behalf of her sons
would not be material. In Smt. Kamta Goel
v. B.P. Pathak and others AIR 1977 SC
1599, while dealing with almost a similar
question under the Delhi Rent Control Act
it was held by the Supreme Court:

"Where a landlord who had let
out his premises to a tenant, dies and his
heirs succeed to his estate, one co-heir to
whom the rent is being paid by the tenant
and who receives it on behalf of the estate,
would be landlord for the purpose of the
Act. The co-heirs constituted the body of
landlords and, by consent, implicit or
otherwise, of the plurality of landlords, one
4 All. M/s A.B. Corp., Kanpur Nagar Vs. Vishnu Kumar Agarwal & Ors.
211
of them representing them all, was
collecting rent. In short, he functioned for
all practical purposes as the landlord, and
was
therefore,
entitled
to
institute
proceedings for eviction against the tenant
quo landlord."

As regards Rule 15(2) of the Rules
framed under the Act, it was held in Roop
Narain v. Radha Mohan Katiyar 1980 UP (2)
RCC 212 that a non-petitioning co-landlord
can be arrayed as proforma respondent and
omission to sign application by a landlord, in
such a case would be of no consequence.
Reliance in the case of Roop Narain (supra)
was placed on an earlier case of this Court in
Yogesh Saran v. Jyoti Prasad and others 1978
ARC 408, wherein it was held that the
omission to sign the application by all the
landlords is of a formal character and an
application made by a landlord cannot be
rejected on this basis. In Sangram Singh v.
Election Tribunal, Koth and another AIR
1955 SC 425 it was held:

"Now a code of procedure must be
regarded as such. It is 'procedure', something
designed to facilitate justice and further its
ends: not a penal enactment for punishment
and penalties not a thing designed to trip
people up. Too technical a construction of
sections that leaves no room for reasonable
elasticity of interpretation should therefore be
guarded against (provided always that justice
is done to 'both' sides) lest the very means
designed for the furtherance of justice be
used to frustrate it." (emphasis supplied

12. Paragraphs 12 and 17 of Gopal Das
(supra) are quoted as under:-

"12. In view of these decisions,
there can, therefore, be little doubt as to the
maintainability of the action for eviction
brought by one co-owner without
impleading the other co-owners. The view
taken in Devi Charan's case (1980 UPLT
NOC 143) cannot be said to have laid down
the correct law and it is overruled. The
view taken in Ranga Nath's case (1984 All
LJ 455) is correct and we reiterate the
same.

17. So far as the applicability of
this Rule to the present case is concerned,
there is no problem. Murlidhar Sah who
has brought the action for eviction of the
premises in question is undoubtedly the
landlord. He has signed the application. He
alone is competent to sign the application.
However, we may point out that the
requirement
of
Rule
15(2)
that
an
application for release of premises owned
by co-owners should be signed by all coowners would be invalid. One co-owner is
competent to maintain an action for
eviction of the tenant of the entire
premises, since he can be considered as a
landlord within the meaning of Section 3(j)
of the Act. One co-owner alone would be
competent to sign such an application."
 (emphasis supplied)

13. Paragraphs 16 and 17 of Om
Prakash Mittal (supra) are quoted as
under:-

"16.
The
petitioner's
main
contention is that a landlord is one to whom
rent is being paid de facto as per the
definition of landlord in the Act. Argument
ignores several factual aspects.

17. Whether mere fact that
somebody de facto realizes rent, will
determine
status,
is
not
a
correct
proposition of law. It has to be found out
whether rent is being realised in his
212 INDIAN LAW REPORTS ALLAHABAD SERIES
independent right and capacity as landlord
or
the
same
is
being
realised
in
representative capacity for the benefit of
another person. 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."

(emphasis supplied)

14. Paragraph 19 of Boorugi
Mahadaev & Sibs (M/s.) & Anr. vs.
Sirigiri Narasing Rao and Ors 2016 (1)
ARC 490 is quoted as under:-

"19. 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 &
Ors. vs. Firm Prahlad Rai Prem Prakash,
(2002)
3
SCC
375)."
(emphasis
supplied)

15. Paragraphs 11, 12, 13, 14, 15
and 17 of Manoj Kumar vs. Suman
Prakash 2019 (3) ARC 614 are quoted
as under:-

11. On perusal of record, I 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 defendantpetitioner 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. It may also be noticed that it is not
a case of property dispute where filing of
the suit on behalf of Karta or any other
coparcener may be claimed to have
material
effect
on
the proceedings.
Suffice to note that a coparcener is any of
several people who share an inheritance.

12. In Black's Law Dictionary
(Eighth Edition) "coparcener" is defined as
"A person to whom an estate descends
jointly, and who holds it as an entire estate:
a person who has become a concurrent
owner as a result of descent" and
"coowner" is defined as "A person who is
in concurrent ownership, possession, and
enjoyment of property with one or more
others; a tenant in common, a joint tenant,
or a tenant by the entirety."

13. As per Legal Glossary (2001
Edition) "Karta" means (1) author; (2)
manager; (3) principal.

14. Thus, broadly speaking a
karta is a person who is a concurrent owner
as a result of a descent and is managing the
property as principal or say, manager for
the benefit of all members of the HUF.
4 All. M/s A.B. Corp., Kanpur Nagar Vs. Vishnu Kumar Agarwal & Ors.
213
Thus, his status, within the family may be
different, if questioned by any coparcener
but his status will be that of a concurrent
owner or coowner.

15. In the rent control matters
where the proceedings are summary in
nature and only landlord-tenant relationship
is to be seen. Thus, the law as applicable in
a case of co-owner in rent control and
eviction
proceedings
will
prevail.
A
reference made be made to a decision of
the Apex Court in Mohinder Prasad Jain vs.
Manohar Lal Jain, 2006 (2)SCC 724, para
10 and 11, relevant extract of which are
quoted as under:

"10. This question now stands
concluded by a decision of this Court in
Indian Umbrella Mfg. Co. v. Bhagabandei
Agarwalla, 2004 (3) SCC 178 wherein this
Court opined (SCC p.183 para 6):

"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 eviction of a tenant in the
property generally owned by the coowners. 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 coowners 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."

11. 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..................................."

17. A reference was also be made
to judgment of Hon'ble Apex Court in the
case of Boorugu Mahadev and sons and
another vs. Sirigiri Narasing Rao and
others, (2016) 3 SCC 343, para 18 whereof
is quoted as under:

"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
214 INDIAN LAW REPORTS ALLAHABAD SERIES
good as proof of ownership in landlordtenant 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)." (emphasis supplied)

16. Paragraphs 40 and 41 of Apollo
Zipper India Limited vs. W. Newman
and Company Limited 2018 (6) SCC 744
are also quoted as under:-

40. It is a settled principle of law
laid down by this Court that in an eviction
suit filed by the landlord against the tenant
under the Rent Laws, when the issue of title
over the tenanted premises is raised, the
landlord is not expected to prove his title
like what he is required to prove in a title
suit.

41. 41. In other words, the burden
of proving the ownership in an eviction suit
is not the same like a title suit. (See Sheela
v. Firm Prahlad Rai Prem Prakash 2002 (3)
SCC 375, para 10 at SCC p. 383 and also
Boorugi Mahadev & Sons & Anr. vs.
Sirigiri Narasing Rao & Ors. 2016 (3) SCC
343, Para 18 at page 349 )."
 (emphasis supplied)

17. On perusal of record I find that
the status of the tenant-petitioner herein as
tenant in the property in question is not in
dispute. The main argument of learned
counsel for the tenant-petitioner is that the
applicant is not the landlord as the rent was
being
collected
by
Virendra
Kumar
Agrawal as Karta of the HUF and only he
could have filed release application. It is
not in dispute that in such matters the term
'landlord' is used in different meaning and
if one co-owner files release application,
the same, even without impleading the
other co-owners, would be maintainable. In
the present case, the other co-owners / colandlords were impleaded as formal parties
and even Virendra Kumar Agrawal has
filed his written statement. It is to be noted
that he never disputed the release of the
shop in question in favour of Vishnu
Kumar Agrawal. He never challenged the
order of the Prescribed Authority that the
release application has wrongly been
allowed in favour of the applicant-landlord
Vishnu Kumar Singh. He is also not before
this Court opposing the release of the shop
in favour of Vishnu Kumar Agrawal. It is
also not in dispute that the original owner /
landlord was Suraj Bhan Agrawal and his
three sons namely, Vishnu Kumar Agrawal,
Virendra Kumar Agrawal and Om Prakash
Agrawal inherited the property. It is also
not in dispute that the rent is being
collected by Virendra Kumar Agrawal only
as Karta of the family (HUF) for the benefit
of all and in the other original proceedings
it was held by the civil court that he is coowner / co-landlord of the property in
question.

18. In such view of the matter, for the
discussions made hereininabove, 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.

19. Status of petitioner as tenant is not
in dispute, therefore, if other co-owner / co-
4 All. Satyapal Chopra Vs. A.D.J., Lalitpur & Anr.
215
landlord have not come forward to
challenge the release in favour of one, who,
admittedly, has also inherited the property,
no relief can be granted on this ground to
the tenant that the person, who was
receiving the rent has not filed the release
application.

20. In such view of the matter, I do
not find any jurisdictional error or
perversity in the findings recorded and
the conclusion drawn by the courts
below. Present petition is devoid of
merits and is accordingly dismissed.

21. Having considered the facts and
circumstances of the case, subject to
filing of an undertaking by the petitionertenant before the Court below, it is
provided that:

(1) The tenant-petitioner shall
handover the peaceful possession of the
premises in question to the landlordopposite party on or before 30.9.2021;

(2) The tenant-petitioner shall
file the undertaking before the Court
below to the said effect within two
weeks;

(3) The tenant-petitioner shall
pay entire decretal amount within a
period of two months from the date of
receipt of copy of this order.

(4) The tenant-petitioner shall
pay damages @ Rs. 2,000/- per month by
07th day of every succeeding month and
continue to deposit the same in the Court
below till 30.9.2021 or till the date he
vacates the premises, whichever is earlier
and the landlord is at liberty to withdraw
the said amount;

(5) In the undertaking the
tenant-petitioner shall also state that he will
not create any interest in favour of the third
party in the premises in dispute;

(6) Subject to filing of the said
undertaking, the tenant-petitioner shall not
be evicted from the premises in question till
the aforesaid period;

(7) It is made clear that in case of
default of any of the conditions mentioned
herein-above, the protection granted by this
Court shall stand vacated automatically.

(8) In case the premises is not
vacated as per the undertaking given by the
petitioner, he shall also be liable for
contempt.

22. There shall be no order as to costs.
----------
(2021)04ILR A215
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ A ( Rent Control) No. 4854 of 2021

Satyapal Chopra ...Petitioner
Versus
A.D.J., Lalitpur & Anr. ...Respondents

Counsel for the Petitioner:
Sri Ravi Anand Agarwal, Sri Shreya Gupta

Counsel for the Respondents:
C.S.C.

A. Civil Law - Rent Control - Res-judicata
- Code of Civil Procedure, 1908 - Section
11 - Same ground of eviction but based on