Sundar Devi vs IIIrd A.D.J.,Fatehpur & Ors.

S.U. Khan, J.—This is landlord''s writ petition arising out of suit for eviction filed by original petitioner Smt. Sundar Devi since deceased and survived by legal representatives against respondent Nos. 2 and 3Radhey Shyam and Purshottam Das. The suit was registered as S.C.C. Suit No. 54 of 1979 on the file of J.S.C.C./Munsif, Fatehpur. In the suit two grounds for ejectment were taken, one of default and the other of subtenancy (According to the plaint allegations respondent No. 2 was the tenant and he had sublet the tenanted shop to respondent No. 3). Trial Court through judgment and decree dated 1041981 decreed the suit for eviction and recovery of arrears of rent on the ground of subtenancy. Trial Court after recording that sub tenancy stood proved held that tenant was not entitled to the benefit of Section 20(4) of U.P. Act No. 13 of 1972. In my opinion trial Court was wrong in respect of benefit of Section 20(4) of the Act. Against the judgment and decree passed by the trial Court respondent Nos. 2 and 3 filed S.C.C. Revision No. 57 of 1981. IIIrd A.D.J., Fatehpur through judgment and order dated dated 1671982 allowed the revision and set aside the judgment and decree passed by the trial Court. Landlady filed this writ petition against the said judgment and order passed by the Revisional Court.

The Revisional Court held that plaintiff failed to explain that in what capacity respondent No. 3 Purshottam Das the alleged subtenant was working in the shop in dispute. The Revisional Court, therefore, held that there was no subtenancy. In this regard finding of the Revisional Court is utterly erroneous in law as it did not take into consideration the own admission of the defendants. Radhey Shyam respondent No. 2 in his oral statement clearly stated that Purshottam Das was doing business with him in the shop in dispute in the partnership and they had also obtained licence for the same. Similarly respondent No. 3 Purshottam Das stated in his oral statement that since August, 1978 he was doing business with Radhey Shyam in partnership and there was no subtenancy.

Learned Counsel for the tenantrespondent has argued that respondent No. 3 had supplied finance and he was to have 65% share in the income. All these things clearly amount to admission of subtenancy in the form of partnership as provided under Section 12(2) read with Section 25 of the Act. Both the provisions are quoted below:

Section 12 (2): �In the case on non residential 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.�

Section 25 Explanation. Where the tenant ceases, within the meaning of Clause (b) of subsection (1) or sub section (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sublet that building or part.�

From the above it is quite clear that admitting a partner amounts to subtenancy. The fact that respondent No. 3 was admitted as partner by the Chief Tenantrespondent No. 2 has been admitted by both the respondent Nos. 2 and 3 in their oral statement . The argument of the learned Counsel for the respondent is also to the same effect. In view of this sub tenancy stood proved through admission.

Learned Counsel for the respondents has argued that respondent No. 3 was admitted as partner in the business by respondent No. 2 and not as a partner in the tenancy. In this regard learned Counsel has cited AIR 1975 Alld. 517 and AIR 1966 Alld 621. Both these authorities deal with the old Rent Control Act (U.P. Act No. 3 of 1947) where there was no such provision like Section 12(2) of U.P. Act. No. 13 of 1972. Accordingly, the said authorities are not applicable to the facts of this case.

Therefore, I find that the judgment and order passed by the Revisional Court is patently erroneous in law and is liable to be quashed.

Writ petition is, therefore, allowed.

Judgment and order passed by the Revisional Court dated 1671982 is set aside and judgment and decree passed by the trial Court dated 1011981 is restored.

Tenantrespondents are granted four 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 the expiry of aforesaid period of four months they will willingly vacate and handover possession of the shop in dispute to the landladypetitioner. Within this period of one month they shall also deposit the entire decreetal amount due till today for immediate payment to the landlordspetitioners. For the aforesaid period of four months tenantrespondents shall deposit an amount of Rs. 2,000/ (at the rate of Rs. 500/ per month) as damages to use and occupation before trial Court within one month and the said amount shall also be paid to the landlordspetitioners at once.