Pyarey Lal Jaiswal vs A.D.J. and Others

S.U. Khan, J.—Heard learned Counsel for the petitioner and learned Counsel for the respondent No. 3, Lal Ji Jaiswal.

Respondent No. 3, landlord filed release application u/s 21 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 against Vikram Jaiswal, respondent No. 4, who is real brother of petitioner Pyarey Lai Jaiswal. Prescribed Authority/ Special C.J.M., Allahabad allowed the release application (P.A. Case No. 107 of 1990) on 25.01.1995. Vikram Jaiswal filed appeal, however it appears that during pendency of appeal compromise took place in between landlord and Vikram Jaiswal and Vikram Jaiswal accepted some money and thereafter allowed the appeal to be dismissed in default. Appeal of Vikram Jaiswal was registered as R.C. Appeal No. 108 of 1995 and was dismissed in default on 30.05.1995. Thereafter, petitioner also filed appeal against release order dated 21.01.1995 as well as objections u/s 23 of the Act. Appeal was dismissed as not maintainable on 17.07.1995 and objections were also dismissed on 01.12.1995. The two orders were challenged by the petitioner through writ petition No.5043 of 1996. The writ petition was disposed of on 19.08.2006 holding the appeal of the petitioner to be maintainable and directing the appellate court to decide the appeal on merit. Thereafter, appeal was again heard and dismissed through order dated 09.08.2007 passed by A.D.J. Court No. 14, Allahabad. The said order has been challenged through this writ petition.

Number of petitioner''s appeal is shown to be R.C. Appeal No. 18 of 2007. Initially appeal of the petitioner was registered as Misc. Case No. 471 of 1995 and was dismissed as not maintainable by District Judge, Allahabad. After order of this Court dated 19.08.2006, said appeal was registered as Rent Control Appeal No. 18 of 2007.

The case of the petitioner is that he was tenant/ sub tenant in the shop in dispute with the consent of the landlord as in the Year 1989, his brother Vikram Jaiswal had delivered possession to him. Accordingly, it was argued that judgment of the Prescribed Authority dated 25.01.1995 is not binding upon the petitioner. Learned counsel has mainly placed reliance upon Paragraph-6 of the release application, copy of which is Annexure-2 to the writ petition. In the said paragraph landlord stated that tenant Vikram Jaiswal sublet the shop to different persons and lastly to Pyre Lai in the first week of July, 1990 (release application was filed on 19.08.1990). Learned counsel for the petitioner has also argued that Vikram Jaiswal, brother of the petitioner was on of good terms with the petitioner. In order to show that petitioner is tenant and paying rent, some copies of tenders through which rent was deposited by the petitioner have been annexed as Annexure-9 to the writ petition. They all are of 1995. Neither any receipt nor tender for the period from 1989/90 to 1995 has been filed. Learned counsel has further argued that petitioner''s brother was in collusion with the landlord. This argument is utterly untenable. If Vikram Jaiswal had been in collusion with landlord, then he would not have opposed release application for five years. Learned counsel for the petitioner has placed reliance upon Annexure-1, which is said to be copy of the rent agreement in between the petitioner and landlord dated 01.12.1989. The said agreement only states that shop was being given on rent since 01.12.1989, that Rent will be Rs.500/- per month and tenant will not carry on any illegal business from the shop in dispute. The said agreement is not registered. Landlord out rightly denied the execution of any such agreement. Even the original agreement was not filed before the Appellate Court, only his photostat copy was filed. Appellate Court also observed that petitioner in his objections u/s 23 of the Act before the Prescribed Authority filed several documents but not the alleged agreement dated 01.12.1989 or its copy and in objections also it was not stated that there was any such agreement in existence.

Learned Counsel for the petitioner has argued, at the end, that at least comparative hardship of petitioner should have been considered as he was sub-tenant with the consent of the landlord. Learned counsel for the petitioner has cited two authorities in this regard one of this High Court and the other of Supreme Court reported in Shyam Babu Vs. District Judge, Moradabad and Others, "Shyam Babu v. District Judge, Moradabad." As far as Supreme Court authority is concerned, it has been held therein that comparative hardship of sub-tenant, who has been inducted with the consent of the landlord is to be considered. In the instant case, it has not been proved that landlord ever consented to the subletting. The other authority (of the High Court) also deals with sub-letting. In the said authority, it has been held that if landlord has got knowledge of subletting for five years, then implied consent may be presumed. That was a case arising out the suit for eviction on the ground of sub-tenancy.

The Supreme Court in the following authorities has held that if written consent is necessary for subletting under the Rent Control Act, then knowledge or oral consent is meaningless. In the first authority, it has also been held that it is not necessary to implead sub-tenant in suit for eviction and point of collusion between landlord and chief tenant cannot be gone into.

Biswanath Poddar Vs. Archana Poddar and Another,

Gurdial Singh and Others Vs. Raj Kumar Aneja and Others,

I do not find least error in the findings of fact recorded by the Appellate Court. The alleged agreement dated 01.12.1989 is neither genuine nor proved. The agreement itself was not filed before the appellate court. There is absolutely no question of collusion between the landlord and Vikram Jaiswal as latter contested the proceedings against the landlord tooth and nail for five years.

Accordingly, there is no merit in the writ petition, hence it is dismissed. Since today till actual vacation, petitioner is liable to pay damages for use and occupation @ Rs. 1500/- per month.