Baboo vs IVth Addl. District Judge,Bareilly & Ors.

S.U. Khan, J.—This is landlord writ petition. Heard learned Counsel for the petitioner. Inspite of sufficient service no one has appeared on behalf of respondent/tenant.

Petitioner is plaintiff, who filed the suit for ejectment against tenant/respondent No. 3 on the ground of nonapplicability of U.P. Act No. 13 of 1972, default, material alteration and subletting. The trial Court/J.S.C.C. Bareilly decreed the suit which was numbered as S.C.C. Suit No. 604 of 1998 through judgment and decree dated 311981. The trial Court Court decided all the points against the landlord except that of material alteration which was point No. 3. The trial Court has held that in between the shop in dispute a wall has been raised which amounted to material alteration. Tenant/respondent No. 3 filed revision against judgment and decree passed by trial Court being Civil Revision No. 93 of 1981. The Revisional Court disageed with the J.S.C.C. landlord on the ground of material alteration and held that raising of a wall does not amount to material alteration or structural changes. The landlord as respondent in the revision had argued that the suit was liable to be decreed on the ground of subletting also. The Supreme Court in AIR 2002 SC 2562, has held that landlord/respondent in revision by tenant can challenge those findings of trial Court which have been recorded against him (landlord). The Revisional Court in para 10 onwards discussed the question of subletting. In the plaint plaintiff/defendant had pleaded that the shop had been sublet to one Siddiqui, however, in the oral statement the name of the sub tenant was not given. One Amman was examined as defendant''s witness (D.W. 1). He admitted that he was carrying on the business of welding from the shop in dispute in partnership with tenant Mahboob Khan for one and half years. In my view the finding of both the Courts below that subtenancy to Amman even on his own statement as D.W. 1 can not stand proved on the ground that his name as the subtenant was neither mentioned in the plaint nor in the oral statement of the plaintiff is not correct. Plaintiff had taken the ground that the shop in dispute had been sublet. Amman defendant''s witness admitted subletting. In such situation, not mentioning the name of Amman in the plaint was not fatal. Amman has admitted that he was partner of the tenant. This clearly amounts to subletting by virtue of Sections 25, 20 (2) (e) and Section 12 (2) of the Act. Section 12 (2) is quoted below:

�In the case of a nonresidential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.�

In my view the suit was liable to be decreed on the ground of subletting and both the Courts below illegally refused to decree the suit on the ground of subletting.

In view of above finding on the point/issue of subletting it is not necessary to decide whether constructions made by tenant fall under Section 20 (2) (e) of U.P. Act No. 13 of 1972 or not.

Accordingly the writ petition is allowed. Judgment and order passed by IV Additional District Judge, Bareilly in Civil Revision No. 93 of 1981 dated 1541982 is set aside and judgment and decree passed by the trial Court is restored even though on different ground.

As no one has appeared on behalf of respondent/tenant hence it is directed that whenever execution application is filed by the landlord no order shall be passed thereupon without ensuring service of notice upon tenant/respondent.