Smt. Janak Dulari vs Xth A.D.J., Lucknow and Others

Sibghat Ullah Khan, J.—At the time of hearing no one appeared for the contesting respondent. Accordingly, only arguments of Sri. D.C. Mukherji, learned Counsel for petitioner were heard. This is landlord''s writ petition arising out of SCC suit No. 563 of 1970. P.L. Nigam v. Smt. Gujja and others. The matter was once remanded to the Trial Court by the Revisional Court. Thereafter, Additional J.S.S.C. Lucknow through judgment and decree dated 10.10.1988 dismissed the suit. The petitioner, who was substituted at the place of original plaintiff landlord filed S.C.C. Revision No. 213 of 1988. The revision was dismissed on 3.8.1996, hence this writ petition.

The original landlord plaintiff had died during pendency of the suit and had been substituted by the petitioner Smt. Janak Dulari. Accordingly, the title of the suit when it was decided in 1988 was Janak Dulari v. Smt. Gujja and others.

Both the Courts below dismissed the suit mainly on the ground that the notice was defective as it did not contain the details of total tenanted accommodation. Copy of the notice is Annexure-3 to the writ petition, in which the accommodation in dispute has been described to consist of "two rooms, one kothari, one gallery inside for kitchen, Courtyard, latrine and bathroom". Copy of the plaint is Annexure-4 to the writ petition. In para-1 of the plaint, the tenanted accommodation has been described exactly in the same manner as it was described in the notice. However, at the end of para-1 of the plaint, it was also mentioned as follows:

A site plan of the Ds 1/1 to 1/8 tenanted portion in the house of plaintiff is enclosed herewith which forms fact of plaint.

Unfortunately alongwith the copy of the plaint annexed as Annexure-4 to the writ petition, copy of the site plan has not been annexed.

In the plaint, it was stated that against Shiv Prasad another tenant of the same landlord occupying adjoining portion, suit for eviction was filed which was decreed however in execution, the tenant of the accommodation in dispute i.e., Sri Chhannoo (who died during pendency of the suit and was substituted by respondents No. 3 to 8 and two others i.e., Kallu and Chandrika) claimed that one kothari was wrongly shown to be in tenancy occupation of the other tenant Shiv Prasad and the said kothari was in his tenancy occupation. It was further stated in the plaint that in order to avoid the controversy plaintiff accepted Chhannoo to be tenant of the said kothari. Both the Courts below held that this proved that there were two kotharis in tenancy occupation of Chhannoo, however in the notice only one kothari was shown. It was also stated that in the site plan annexed alongwith the plaint, two kotharis were shown.

As far as this finding is concerned, I do not agree with it. Firstly, in the notice as well as in the beginning of the para-1 of the plaint apart from one kothari, one gallery was also shown. May be this gallery was described as kothari No. 2 in the site plan. However, even if it is held that in the notice one kothari was not mentioned, it will not make any difference. The Supreme Court in AIR 2005 SC 1513 placing reliance upon its earlier Constitution Bench, seven Judge authority in V.D. Chettiar v. Y. Ammal AIR 2005 SC 1745 held that if U.P. Act No. 13 of 1972 applies to a building (as is the position in the instant case) then no notice terminating the tenancy u/s 106 of Transfer of Property Act is required to be given before filing the suit. In the said case also eviction decree passed by J.S.C.C. and lower Revisional Court had been set aside by this High Court on the ground that notice issued by the landlady was not in accordance with law. The Supreme Court set aside the order of the High Court and affirmed the eviction order passed by the Trial Court.

The suit giving rise to the instant writ petition had been filed on the ground of default and subletting (rate of rent is Rs. 26/- per month). As far as subletting is concerned, both the Courts below held that possession of one kothari had been delivered to Joginder Gulati, defendant No. 2/respondent No. 9 of the writ petition. However, both the Courts below held that mere delivery of possession was not sufficient to prove subletting and neither any evidence had been adduced to show that original tenant Chhannoo entered into an agreement of subletting with Joginder Gulati nor evidence had been adduced of payment of rent by Joginder Gulati or his legal representatives. This view is utterly erroneous in law. For proving subletting, exclusive possession is sufficient vide M/s. Bharat Sales Ltd. Vs. Life Insurance Corporation of India, and Joginder Singh Sodhi Vs. Amar Kaur, . In the first authority, the Supreme Court has held that direct affirmative proof of subletting is not possible. In this regard, reference may also be made to Vaishakhi Ram and Others Vs. Sanjeev Kumar Bhatiani, .

Accordingly, it is held that both the points, i.e., validity of notice and subletting have wrongly been decided by both the Courts below against the landlord petitioner. (Notice was not even required.) These findings are patently erroneous in law. Accordingly, writ petition is allowed. Impugned judgment and decree is set aside. Suit of the plaintiff for dispossession of the defendants respondents and for arrears of rent/damages for use and occupation till the date of the filing of the suit, pendente lite at the agreed rate of rent of Rs. 26/- per month is decreed. With effect from today till actual eviction tenants shall be liable to pay Rs. 1,000/- per month for use and occupation.