Santosh Kumar vs A.D.J. and Others

Shashi Kant Gupta, J.—This writ petition has been filed against the order dated 29.7.2011 whereby the application of the Petitioner filed under Order 1 Rule 10 of the CPC was rejected by the lower Appellate Court.

An application u/s 21(1)(a) of the U.P. Act No. 13 of 1972 (in short "Act") was filed by the landlord against the Respondent No. 3 which was registered as P.A. Case No. 62 of 2004 for release of the disputed shop on the ground of bonafide and genuine need. The aforementioned application was allowed by the Prescribed Authority on 10.4.2007. Feeling aggrieved and dissatisfied with the order dated 10.4.2007, an appeal was filed by the Respondent No. 3 u/s 22 of the Act which was registered as Rent Control Appeal No. 17 of 2007. It appears that during the pendency of the said appeal, an application under Order 1 Rule 10 of the CPC was filed by the Petitioner on 31.5.2010 seeking his impleadment in the appeal claiming himself to be the co-tenant of the disputed premises. The aforementioned impleadment application has been rejected by the lower appellate court by judgment and order dated 29.7.2011. Hence the present writ petition.

Learned Counsel for the Petitioner has submitted that the Petitioner was a co-tenant of the disputed premises and, therefore, he was a necessary and proper party but the application u/s 21(1)(a) of the Act was filed by the landlord without impleading him, as such, the order passed by the lower appellate court rejecting the impleadment application is illegal and arbitrary. It was further submitted that one SCC Suit was earlier filed by the landlord-Respondents No. 2 against the Petitioner and his brother Respondent No. 3 on the ground of arrears of rent and sub-letting. The said suit was decreed by the judgment and order dated 22.2.2007 against the Petitioner and his brother Respondent No. 3. Aggrieved with the said order, a SCC Revision No. 48 of 2007 was filed by the Petitioner and the Respondent No. 3 which was allowed by judgment and order dated 22.10.2007. In the said case, it was held that the Petitioner is not a sub-tenant of the disputed premises and he was treated as a co-tenant.

Heard the learned Counsel for the Petitioner and perused the impugned order as well as order dated 22.10.2007 passed by the Revisional Court in Revision No. 48 of 2007.

From a bare perusal of the judgment and order dated 22.10.2007 passed by the Revisional Court, it is evident that the revisional court had not treated the Petitioner as a co-tenant of the disputed premises and it was simply held that the Petitioner is not a sub-tenant of the premises, and the rent receipts were issued in favour of the Respondent No. 3, Om Prakash Kasaria alone who happens to be the brother of Santosh Kumar, as such, the plea of the Petitioner that he was treated as co-tenant by the revisional court in the aforementioned judgment cannot be accepted. It is also noteworthy that the Petitioner is the brother of Om Prakash Kasaria who is a tenant of the premises in dispute. It is also to be noted that the release application was filed by the Respondent No. 2 u/s 21(1)(a) of the Act for release of the disputed premises in the year 2004 and that release application was allowed by the Prescribed Authority on 10.4.2007 and thereafter, an appeal was filed in the year 2007 but the Petitioner did not file any application for impleadment before the Prescribed Authority although the matter remained pending there between 2004 to 2007. However, the impleadment application was filed before the lower appellate authority nearly after three years of filing of the appeal on 31.5.2010 without giving any plausible explanation for the said delay. The record further shows that the Petitioner had also filed an application in support of his brother before the Prescribed Authority, as such, it cannot be said that the Petitioner was not aware about the proceedings pending before the Prescribed Authority for the release of the disputed shop.

The Petitioner has failed to show that there was any privity of contract between him and the landlord Respondent No. 2 and that he was co-tenant of the disputed premises. The rent receipts were issued in favour of the brother Om Prakash Kasaria, as such, by No. stretch of imagination the Petitioner can be said either the sole tenant or the co-tenant of the disputed premises. Besides this, it appears that the impleadment application has been filed simply to delay the disposal of the appeal pending before the court below. Such tendencies cannot be encouraged.

In view of the above, I do not see any illegality or infirmity in the impugned order passed by the lower appellate court whereby the impleadment application of the Petitioner has been rejected.

In the result, the writ petition is dismissed.