Tej Singh Verma and Another vs District Judge and Others

Prafulla C. Pant, J.—By means of this petition, moved under Article 227 of Constitution of India, the Petitioners have sought writ or direction in the nature of certiorari quashing judgment and decree dated 09-06-2003, passed by Judge Small Cause Court in Suit No. 01 of 1998 and judgment and order dated 20-11-2004, passed by revisional court in revision No. 2 of 2003, arising out of decree passed by the trial court, whereby the Petitioners have been directed to be evicted from house in suit.

Brief facts of the case as narrated in the petition are that Respondent Nos. 2 to 8, earlier filed a suit No. 05 of 1982, claiming themselves to be landlords against Respondents No. 9 and 10 (alleging them to be tenants) which was dismissed for ejectment but decreed for arrears of rent in respect of house in suit situated in Lansdowne. The Petitioners case is that they were not impleaded in said earlier suit. They claim they are actual tenants in the house and residing in it since 1957. However, it is admitted that a registered notice dated 26-07-1997 was served by the Respondent No. 2 to 8 on the Petitioners as well as on Respondents No. 9 and 10 alleging that the Respondents No. 9 and 10 have sublet the house to the Petitioners as such their tenancy was terminated on expiry of period of thirty days of notice. Thereafter suit No. 01 of 1998 was instituted by the Respondents No. 2 to 8 against the Petitioners and Respondents No. 9 and 10 for their ejectment, arrears of rent and mesne profits. It is alleged by the Petitioners that the earlier suit No. 05 of 1982 was a collusive suit and the Petitioners are not bound by it. It is further alleged that though Late Jawahar Mal was original owner of the house in suit but the Respondents No. 2 to 8 are not his legal heirs. However, it is stated in the petition that Petitioners to save themselves from eviction deposited entire arrears of rent with interest and costs of suit on the first date of hearing of the suit (No. 01 of 1998) as required u/s 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. Learned trial court gave the finding that Respondents Nos. 9 and 10 have sublet house to the Petitioners without consent of the landlords (Respondents No. 2 to 8) and also that a sublessee is not protected from eviction under Sub-section (4) of Section 20 of U.P. Act 13 of 1972 and accordingly decreed the suit. Aggrieved by which the Petitioners preferred revision before District Judge u/s 25 of Provincial Small Cause Courts Act, 1887, which was also dismissed. These orders are challenged in this petition on the ground that both the courts below have erred in law in holding that the Petitioners are sub tenants of the Respondents No. 9 and 10. The impugned orders are also challenged on the ground that the courts below have erred in law in not considering the house tax receipts produced by the Petitioners showing their possession since 1957. The impugned orders are also challenged on the ground that the courts below have erred in law in holding that the Petitioners are not protected u/s 20(4) of U.P. Act 13 of 1972. Lastly, it is also alleged that the Petitioners tenancy stood regularised u/s 14 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

A counter affidavit is filed on behalf of Respondents Nos. 2 to 8 in which it is stated that the ground floor of house No. 199/150 situated at Sadar Bazar, Lansdowne was originally let out to Late Sri Ram Chandra Verma and first floor was let out to late Shri Makhan Lal Verma. On death of these two their heirs inherited the tenancy whereby Sri Govind Singh Verma (Respondent No. 9) and Pushpa Devi succeeded from Ram Chandra Verma and Kishore Kumar Verma (Respondent No. 10) succeeded the tenancy rights from Makhan Lal Verma. It is further stated in the counter affidavit that Shri Govind Singh Verma and Pushpa Devi have sublet the ground floor of house to the Petitioners-Sri Tej Singh Verma and Sri Kishore Kumar Verma has sublet the first floor to Daulat Ram (Petitioner No. 2). Defending the concurrent; findings of courts below it has been stated the same cannot be interfered with by this Court in its exercise of powers u/s 227 of the Constitution of India. It is also stated that question relating to relationship of landlord, tenant and subtenant are the questions of farts which have attained finality and the writ petition is liable to be dismissed.

I heard learned Counsel for the parties and perused the record.

Most surprising fact in this case is that Petitioners have alleged themselves to be tenants but no where in the petition they have disclosed who is their landlord. This breaks backbone of the Petitioners case. Not only this they claim their long possession in the house in suit as tenants, but they have failed to establish to whom they tendered the rent. Both the courts below, after appreciation of evidence have found that Respondents No. 9 and 10 were the tenants who inherited tenancy rights from their respective father. It is admitted to all the parties that original owner of the house was Jawahar Mai who has died long back. It is also admitted that there had been earlier round of litigation in 1982 between Respondents Nos. 2 to 8 (landlords) and Respondents Nos. 9 and 10 (tenants) in which Petitioners were not parties. It is apparent from the record that the landlords are living in District Gonda and house in question is situated in Lansdowne. In such circumstance, the evidence of subletting adduced from the side of Plaintiff landlord is rightly believed by the courts below.

Sub-section (4) of Section 20 of U.P. Act 13 of 1972, reads as under-

In any suit for eviction on the ground mentioned in Clause (a) of Sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent per annum and the landlord''s costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under Sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:

Provided....

Firstly above sub-section protects only tenant and not sub tenants. The definition of word tenant is clear in Section 3(a) of U.P. Act 13 of Section 1972. Secondly, the protection under Sub-section (4) of Section 20 quoted above is available only when the eviction is sought on the ground of default in payment of rent, not in the case of subletting. Therefore, this Court finds no illegality in the impugned orders and is in full agreement with the findings and orders of the courts below.

As to the regularization of tenancy u/s 14 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is concerned there is no such plea in the written statement filed by the Petitioners before the trial court. It is only before this Court this point is pressed which is against pleading as well as evidence on record.

For the reasons as discussed above, this petition is liable to be dismissed. The same is dismissed. However, in the interest of justice, the Petitioners are allowed three months time from today to vacate the house in suit failing which the Plaintiff/Respondent shall be at liberty to seek execution of the decree. No order as to costs.