Kailash and Others vs Rajiv Lochan and Another

S.U. Khan, J.—This is tenants'' writ petition. Landlords-Respondent filed S.C.C. Suit No. 41 of 2001 against tenants for eviction on the ground of default and material alteration and for recovery of arrears of rent after serving notice of termination of tenancy and demand of rent. The suit was decreed by J.S.C.C., Bijnor on 14.1.2003. Revision filed against the same being Revision No. 6 of 2003, has also been dismissed by A.D.J./Special Judge, Bijnor through judgment and order dated 4.2.2004, hence this writ petition.

It was alleged in the plaint that by virtue of family partition only Plaintiffs-Respondent were owners landlords of the property in dispute. According to the landlords rate of rent was Rs. 200 per month while according to the tenants Petitioners it was only Rs. 45 per month. Both the courts below have held that the rate of rent was Rs. 200 per month. Regarding benefit of deposit u/s 30 of Uttar Pradesh Act No. 13 of 1972, the courts below held that as after service of notice tenants admittedly did not send any money order to the landlords hence deposit made by the tenants u/s 30 could not be of any avail to them. Question of material alteration was also decided in favour of the landlords and it was held that in July, 1998, about four feet verandah was demolished by the defendants.

Revisional court held that as the rent u/s 30 had been deposited after termination of tenancy hence it was not a valid deposit, as after termination of tenancy Petitioners did not remain tenants hence they were not entitled to make deposit u/s 30 of the Act. In my opinion to that extent revisional court was wrong. Even after termination of tenancy if landlords refuse to accept rent, tenants who become statutory tenants are entitled to make deposit u/s 30 of the Act. However as admittedly no money order was sent after notice of demand and termination of tenancy hence deposit u/s 30 of the Act was invalid on this ground. Apart from it no rent was deposited by the tenants on the first date of hearing in the suit giving rise to the instant writ petition to avail the benefit of Section 20(4) of the Act.

The finding of rate of rent is finding of fact and courts below have taken into consideration relevant material on record to record the said finding. Even in the finding regarding substantial damage to the building there is no such error, which may warrant interference in exercise of writ jurisdiction.

The main point argued by learned Counsel for the tenants Petitioners is that notice of termination of tenancy on behalf of some of the landlords was not valid and similarly suit filed by some of the landlords without impleading other landlords as Respondent was not maintainable. In this regard learned Counsel for the Petitioner has cited G.S. Prasad v. D.J., Dehradun and Ors. 1997 (2) ARC 535.

This point was not raised before the courts below.

Even otherwise the aforesaid authority of G.S. Prasad v. D.J., Dehradun, is per incuriam, as it has not taken into consideration Supreme Court authorities on the point.

In a Full Bench authority of Gujarat High Court in Nanalal Girdharlal and Another Vs. Gulamnabi Jamalbhai Motorwala and Others, , it was held that suit by some of the co-owners or joint owners against tenants for eviction is not maintainable. The said Full Bench authority of the Gujarat High Court was overruled by the Supreme Court in Laxmishankar Harishankar Bhatt Vs. Yashram Vasta (dead) by L.Rs., , placing reliance upon several earlier authorities of the Supreme Court particularly the authority in Pal Singh Vs. Sunder Singh (Dead) by Lrs. and Others, .

A Full Bench authority of this Court in 1987 (1) ARC 281, has declared Rule 15(2) of the Rules framed under Uttar Pradesh Act No. 13 of 1972 as invalid and has held that release application u/s 21 of the Act by one or some of the co-owners/co-landlords is maintainable even without impleading all other co-owners/co-landlords as proforma opposite parties. If release application u/s 21 of the Act is maintainable by some of the landlords then suit for ejectment. Rent is also maintainable by them. The aforesaid authority of G.S. Prasad has not taken into consideration this Full Bench authority and the Supreme Court authority of Laxmishankar Harishankar Bhatt Vs. Yashram Vasta (dead) by L.Rs., , hence it is per incuriam.

Accordingly I hold that suit for ejectment filed by some of the landlords even without impleading other landlords as proforma Respondent is quite maintainable.

Accordingly there is no merit in the writ petition and it is dismissed.

However, tenants Petitioners are granted ten months time to vacate provided that within one month from today they file an undertaking before the J.S.C.C. to the effect that on or before expiry of the aforesaid period of ten months they will willingly vacate and handover possession of the property in dispute to the landlords. Tenants Petitioners shall also deposit the entire decretal amount due till expiry of ten months within one month before the J.S.C.C. for immediate payment to the landlords.