Suraj Bhan vs VIIth A.D.J. and Others

S.U. Khan, J.—Heard Sri M. A. Zaidi, learned Counsel for the petitioner and Sri K. K. Arora, learned Counsel for the landlord respondent No. 5 Rajesh Kumar, who appeared through caveat.

Respondent No. 6, Dharam Singh is real brother of petitioner. Landlord respondent No. 5 filed suit for eviction against respondent No. 6, Dharm Singh claiming therein that Dharm Singh alone was the tenant of the accommodation in dispute. The suil was registered as S.C.C. Suit No. 270 of 1995. The suit was dismissed on 4.8.2000 by J.S.C.C, Meerut. Against the said judgment and decree, respondent No. 5 filed S.C.C. Revision No. 200 of 2000. The revision was allowed by A.D.J., Court No. 8, Meerut on 16.11.2002. Revisional court set aside the judgment and decree passed by the J.S.C.C. and decreed the suit of the plaintiff for eviction and recovery of arrears of rent. Against the said judgment and decree, respondent No. 6-Dharm Singh filed Writ Petition No. 21700 of 2003. When the said writ petition was called as fresh on 19.5.2003, no one appeared for the petitioner, hence the said writ petition was directed to be listed for admission in the next cause list. Thereafter, the said writ petition was listed on 16.7.2003 and was passed over on the illness slip of learned Counsel for the petitioner. Thereafter, neither said writ petition was ever listed nor any application for listing was filed.

Accommodation in dispute is a shop, rent of which is only Rs. 40 per month. The shop in dispute is situate in Bakari Mohalla Lal Kurti, Meerut.

In the plaint of the aforesaid suit, it was also alleged that Dharm Singh had sub-let the shop in dispute to petitioner Suraj Bhan his real brother and that Dharm Singh had shifted to Kurukshetra. In the said suit, petitioner filed application for impleadment. In the impleadment application, it was stated by the petitioner that the shop in dispute had been taken on rent by him and his brother Dharm Singh. Annexure 2 to this writ petition is the copy of the said impleadment application. It was also alleged that as Dharm Singh was elder brother, hence receipts were issued in the name of Dharm Singh, J.S.C.C, Meerut allowed the said impleadment application through order dated 9.1.1998. copy of which is Annexure-3 to the writ petition. In the said order, it was mentioned that as applicant [i.e., Suraj Bhan) claimed himself to be joint tenant, hence it was proper to implead him. However, the order dated 9.1.1998 was set aside in Revision No. 71 of 1998 allowed by 7th A.D.J., Meerut on 23.10.1998. Copy of the said judgment is Annexure-4 to the writ petition. In the said judgment, it was observed that if petitioner had any independent right in the shop in question, then he could file application under Order XXI, Rules 97 to 100, C.P.C. after the decree was passed, if the suit was decreed for possession. Meanwhile, petitioner had also filed an injunction suit being O.S. No. 633 of 1996. In the said suit of 1996, an interim order was passed on 11.10.1996 that petitioner should not be evicted except in accordance with law, which was converted into status quo order on 10.3.1998 with the consent of the parties.

It appears that R.C. and E.O./D.S.O., Meerut also declared vacancy of the shop in dispute through order dated 4.7.2000. In para 15 of this writ petition, it is mentioned that against the said order also writ petition has been filed, however number of the said writ petition has not been mentioned.

Thereafter, in execution proceedings, petitioner filed application under Order XXI, Rules 97 to 100, C.P.C. The said application was rejected on 30.7.2005 by J.S.C.C, Meerut. The said judgment and order is contained in Annexure-13 to the writ petition. The said application was registered as Misc. Case No. 6 of 2003 and was filed in Execution Case No. 2 of 2003. Against the judgment and order dated 30.7.2005, S.C.C. Revision No. 55 of 2005 was filed by the petitioner. A.D.J./Special Judge (S.C./S.T. Act), Meerut dismissed the revsion on 22.9.2007, hence this writ petition. In this writ petition, apart from the orders dated 30.7.2005 and 22.9.2007, passed on petitioner''s application under Order XXI, Rules 97 to 100, C.P.C. the following two orders have also been challenged through this writ petition.

Order dated 4.7.2000, passed by R.C. and E.O. declaring vacancy and order dated 16.11.2002, through which revision against main judgment and decree (S.C.C. Revision No. 200 of 2000) was allowed against Dharm Singh-respondent No. 6.

As far as relief against judgment and order dated 16.11.2002 is concerned, it is clearly barred by delay and laches. As in the suit giving rise to the said revision, petitioner had applied for impleadment, hence he was aware about the said judgment. Similarly prayer for setting aside the order dated 4.7.2000 declaring vacancy is also barred by delay and laches. It has not been stated that petitioner was not aware of the said order. Even number of writ petition filed by the petitioner''s real brother respondent No. 6 against the said order has not been mentioned.

Petitioner stated in his application under Order XXI, Rules 97 to 100 dated 18.2.2003 (Annexure-XI), that shop in dispute was taken on rent 36-37 years before from its previous owner Kanhaiya Lal, who sold the same to the present landlords on 27.5.1988,. Petitioner further stated that at the time when shop in dispute was taken on rent he was very young and respondent No. 6 was his elder brother, hence receipts were issued in the name of respondent No. 6. In the objections, petitioner clearly stated that for last 30 years he alone was doing the dairy business from the shop in dispute and he was having licence in that regard in his name issued by cantonment board and that respondent No. 6 was carrying on business from another shop. Respondent No. 6 also filed objections u/s 47, C.P.C, which was also decided by the same order dated 30.7.2005 by J.S.C.C, Meerut.

Before the courts below, power-of-attorney dated 1.11.1995 executed by respondent No. 6 in favour of the petitioner was also filed, in which it was stated that Suraj Bhan was doing business from the shop in dispute and respondent No. 6 was authorising Suraj Bhan to do pairvi in all the cases.

The petitioner himself claimed that he was joint tenant with his brother Dharm Singh-respondent No. 6. A decree passed against one joint tenant is binding upon all other joint tenants even if they have not been impleaded in the suit vide Harish Tandon Vs. Addl. District Magistrate, Allahabad, U.P. and others, and Ashok Chintaman Juker and Others Vs. Kishore Pandurang Mantri and Another,

Petitioner admitted that he was in exclusive possession for last 30 years. All the receipts were in favour of the petitioner''s brother Dharm Singh-respondent No. 6. Petitioner clearly admitted that for last 30 years, respondent No. 6 was carrying on business from some other accommodation. The power-of-attorney filed by respondent No. 6 also proved that respondent No. 6 was having absolutely no control over the business carried out from the shop in dispute by the petitioner and the entire business was of the petitioner. By virtue of Sections 20 (2) (e), 25 and 12 (1) (b) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, it clearly amounted to sub-letting. u/s 3 (g) of the Act, brother is not included in the definition of the family. The aforesaid provisions are quoted below:

Section 3 (g).-"family", in relation to a landlord or tenant of a building, means, his or her:

(i) spouse,

(ii) male lineal descendants,

(iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her,

and includes, in relation to a landlord, any female having a legal right of residence in that building;

20 (2) (e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building.

Prohibition of sub-letting. -(1) No tenant shall sub-let the whole of the building under his tenancy.

(2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building.

Explanation. - For the purposes of this section:

(i) where the tenant ceases, within the meaning of Clause (b) of Sub-section (1) or Sub-section (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sub-let that building or part;

(ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting.

Deemed vacancy of building in certain cases.-(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if:

(b) he has allowed it to be occupied by any person who is not a member of his family.

Accordingly, petitioner does not have any independent right in the property in dispute and he is bound to be evicted in the decree against his brother respondent No. 6 whether he is joint tenant or sub-tenant. Subtenant is not necessary party to be impleaded alongwith the chief-tenant in the suit for eviction vide Biswanath Poddar Vs. Archana Poddar and Another, and Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another,

It has been held by the Supreme Court in P. John Chandy and Company (P) Ltd. Vs. John P. Thomas, that mere inaction of the landlord to take action for eviction for a long period on the ground of sub-letting does not amount to consent for subletting, hence even if the version of the landlord that immediately before filing of the suit, possession had been handed over by respondent No. 6 to the petitioner is not accepted and the version of the petitioner that sub-tenancy came into existence about 10 to 15 years before filing of the suit by the landlord against tenant (in the year 1995), no difference will be made). It has also been held by the Supreme Court in the aforesaid authority of Biswanath Poddar Vs. Archana Poddar and Another, that even if sub-tenancy has come into existence with the oral consent of the landlord still tenant or sub-tenant is liable to eviction if under the relevant Rent Control Act written permission of the landlord is necessary for creating sub-tenancy.

In the said authorities of Biswanath Poddar Vs. Archana Poddar and Another, and Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, , even though it was held that third party can raise the objections under Order XI, Rules 97 to 100, C.P.C. However, it was further held that a sub-tenant was bound by the decree against chief-tenant.

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

Petitioner is granted four months time to vacate provided that:

Within one month from today petitioner files an undertaking before the J.S.C.C. to the effect that on or before the expiry of aforesaid period of four months he will willingly vacate and handover possession of the property in dispute to the landlords-respondents.

For this period of four months, which has been granted to the petitioner to vacate, he is required to pay Rs. 8,000 (at the rate of Rs. 2,000 per month) as damages for use and occupation. This amount shall also be deposited within one month before the J.S.C.C. and shall immediately be paid to the landlords-respondents.

Within one month from today petitioner shall deposit entire decretal amount due till date before J.S.C.C. under revisional order dated 16.11.2002 for immediate payment to landlords respondents.

In case of default in compliance of any of these conditions petitioner shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or decretal amount and Rs. 8,000 are not deposited within one month then petitioner shall be liable to pay damages at the rate of Rs. 5,000 per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs. 8,000 the accommodation in dispute is not vacated on the expiry of four months then damages for use and occupation shall be payable at the rate of Rs. 5,000 per month since after four months till actual vacation. It is needless to add that this direction is in addition to the right of the landlords to file contempt petition for violation of undertaking and pursue their execution application.