Whether one of co-owner can withdraw his consent midway in eviction suit against tenant?

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 and Ors., MANU/SC/0473/1976 : [1977]1SCR395 ; Dhannalal v. Kalawatibai and Ors., MANU/SC/0565/2002 : [2002]SUPP1SCR19 ). 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.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5357 and 5358 of 1996

Decided On: 05.01.2004

India Umbrella Manufacturing Co. Vs. Bhagabandei Agarwalla  (Dead) by Lrs. and Ors.

Hon'ble Judges/Coram:

R.C. Lahoti and Ashok Bhan, JJ.

Citation: (2004)3 SCC 178

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Whether one party to divorce by mutual consent can withdraw his consent for divorce?

Adverting to the above principles of law it cannot be said that there was any legal bar for the petitioner to withdraw his consent as recorded in the pursis when the pursis referred that "both the parties have agreed to take divorce by consent." In any event if at all the parties were to maintain their consent for divorce as stated in the pursis, then the requirement of law was that the parties, would present an appropriate application by complying necessary requirements provided by Section 28 of the Special Marriage Act and seek a decree of divorce by mutual consent. However, before such an application/petition could be presented, the petitioner intended to withdraw his consent by the application on which the impugned order is passed. In my opinion, considering the aforesaid clear position in law there was no legal impediment for the petitioner to withdraw his consent as recorded in the pursis. The petitioner having withdrawn his consent, the necessary consequence would be that the family Court would be required to proceed and adjudicate the petition on the issue of divorce on all the grounds which are available to the parties. Thus, considering the requirement of law it was not proper and appropriate for the family Court to reject the application of the petitioner to withdraw the joint pursis dated 25 July 2015. The impugned order is manifestly illegal.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 12862 and 12863 of 2017

Decided On: 22.01.2018

 Vishal Nitinkumar Kondhia Vs. Jahnvi Vishal Kondhia

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