Mahesh Chandra Tiwari vs K.S.Dixit & Others
2011 Latest Caselaw 1222 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                           
 
Court No. - 7
 

 
Case :- WRIT - A No. - 22206 of 2011
 

 
Petitioner :- Mahesh Chandra Tiwari
 
Respondent :- K.S.Dixit & Others
 
Petitioner Counsel :- R.A.Upadhyay
 
Respondent Counsel :- Atul Kumar-I
 
                                                
 

 
Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

This writ petition has been filed by the petitioner tenant challenging the validity and correctness of the order dated 25.3.2011 passed by the Special Judge ( E.C. Act ), Kanpur Nagar in Rent Revision No. 81 of 2006, Mahesh Chandra Tiwari versus Rent Control and Eviction Officer and others.

The petitioner has also sought a writ of mandamus directing the respondents not to interfere in his peaceful possession over the shop in dispute.

The facts in brief are that the shop in dispute was allotted to the petitioner by Rent Control and Eviction Officer, Kanpur Nagar/Additional City Magistrate, Vth vide order dated 20.10.1981. Respondent no.1, K.S. Dixit r/o House No. 105/282-A, Chamanganj, Kanpur Nagar moved an application for allotment of the shop in dispute before the Rent Control and Eviction Officer /Additional City Magistrate, Vth Kanpur Nagar interalia that tenant-petitioner has violated the terms of the allotment by renting out a part of it to a sub-tenant and as such the shop in dispute be declared as vacant. The application filed under Section 12(1) of Uttar Pradesh Urban Buildings ( Regulation Of Letting, Rent And Eviction) Act, 1972 for allotment by respondent no.1 was registered as case No. 95 of 2005, K.S. Dixit versus Prem Narain Mishra.

During the proceedings, the Rent Control Inspector submitted his report after inspection of the shop in dispute. The petitioner also filed his objection before the court below that neither any portion of the shop in dispute was sub-let by him nor lying vacant and only he is running his business in the aforesaid shop. It was also stated in the objection by the tenant that respondent no.3 is his brother having no concern with the business in the said shop but occasionally helps him as such it cannot be said that the petitioner has violated the terms of tenancy by sub-letting a part of the shop in dispute. Reply was filed by the landlord on 2.2.2006 to the objection filed by the petitioner stating that it has come to his knowledge that the tenant is sharing the rent with his brother to whom he has sub-let a part of the said shop and has filed certified copy of letter and agreement dated 1.10.2003 entered into the tenant and his brother in Suit No. 109 of 2003. As regards respondent no.3, the brother of the petitioner tenant is concerned, he appears to have moved an application before the authority stating that he is doing business of T.V. repairs in a part of the shop in dispute and he is also equally a tenant of the shop in dispute with his brother to whom the shop is initially allotted.

The Rent Control and Eviction Officer after considering material on record declared vacancy in the shop in dispute by his order dated 4.9.2006. Thereafter, the release application was filed by the landlord on 19.9.2006 under Section 16(1)(b) of U.P. Act No. 13 of 1972. Objection in the release application was filed by the tenant along with an affidavit under Section 34(1) (G) of U.P. Act No. 13 of 1972 denying the allegations made therein. The Prescribed Authority appears allowed the release application and released the shop in dispute in favour of respondent no.2 vide order dated 30.11.2006. Aggrieved by order dated 30.11.2006 petitioner filed Rent Revision No. 81 of 2006, Mahesh Chandra Tiwari versus Rent Control and Eviction Officer and others.

The contention of learned counsel for the petitioner is that neither the Rent Control and Eviction Officer nor the Prescribed Authority have applied their mind to the facts and circumstances of the case. It is stated that the Prescribed Authority without considering the objection and evidence on record has passed the order whereby he has proceeded to release the shop in dispute in favour of respondent no.2. It is argued that vacancy has wrongly been declared on the ground that the petitioner has sub-let the shop in dispute as such the judgment passed by the court below was beyond its jurisdiction.

Learned counsel for the petitioner has relied upon paragraph Nos. 10 and 11 of the judgment of the Apex Court rendered in 2002 AIR SC-676, Ganesh Trivedi versus Sundar Devi. Paragraph Nos. 10 and 11 of the judgment are as under:-

" 10. There is yet another reason why no interference with the impugned order of the High Court is called for. Shri Upadhyaya, the learned counsel for respondent nos. 1 to 3 invited our attention to the pleadings and pointed out that admittedly the sale-deed executed by Jagdamaba Prasad Awasthi in favour of Ganesh Trivedi, the appellant, contains recitals to the effect that the former landlord-owner was well aware of Deo Narain occupying the suit premises after the death of Suraj Prasad, that he was acknowledged by the landlord as tenant in the premises, and rent was also paid by Deo Nrain to the landlord under receipts issued by the landlord though Deo Narain had fallen into some arrears of rent at the time of sale of the suit premises in favour of the appellant. Such admissions made by Jagdamaba Prasad Awasthi are binding on Ganesh Trivedi, the appellant, inasmuch as the same are contained in the sale-deed by which title has been derived by the appellant and thereunder the appellant has stepped into shoes of the previous owner-landlord. Deo Narain's status as tenant in occupation of the suit premises, cannot, therefore, be doubted or disputed by the appellant.

11. The proceedings out of which these appeals arise were not initiated by the landlord; they were initiated by a third person who was interested in the allotment of the suit premises in the event of their being declared 'deemed vacant' and after an adverse decision by the High Court he has chosen not to pursue his claim. He has not filed any petition seeking leave to appeal against the decision of the High Court."

Per contra, learned counsel for the respondent landlord has submitted that it is true that the petitioner had been allotted the shop in dispute by the Rent Control and Eviction Officer in October, 1981 but thereafter the petitioner tenant illegally inducted his brother in a part of the shop in dispute where he is doing his independent business of T.V. repairs.

He also submits that admittedly from the affidavit filed by respondent no.3, the brother of the petitioner he is contributing half of the rent by mutual agreement between them and the same is paid by the allottee to the landlord without disclosing to him that it is shared rent with his brother; that the relationship between the two brothers subsequently became strained, the petitioner tenant then filed Suit No. 109 of 2003 against his brother without impleading the landlord as party and an agreement has been entered into between them on 1.10.2003 as such the landlord had no knowledge about the agreement between the tenant and his brother. Certified copy of the agreement in the aforesaid suit has been placed by the learned counsel for the respondent landlord read thus:-

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lq/khj pUnz frokjh iq= LoxhZ; d`".k pUnz frokjh fuoklh 3, @ 74 vktknuxj dkuiqj uxjA - - - - - f}rh; i{kA

izFke i{k o f}rh; i{k vkil esa fuEufyf[kr le>kSrk gqvk%&

1- ;g fd mijksDr nqdku esa vk/ks&vk/ks Hkkx esa izFke i{k o f}rh; i{k cSBsxsaA vkxs ds Hkkx esa izFke i{k o ihns Hkkx esa f}rh; i{k cSBxkA

2- ;g fd mijksDr nqdku ds vk/ks Hkkx esa lq/khj pUnz frokjh bysDV~kfud fjis;fjax dk dk;Z djsaxsa o egs'k pUnz frokjh bysfDV~dyl fjis;fjax dk dk;Z djsaxsA mijksDr nksuksa dk;ksZ esa fdlh izdkj dk gLr{ksi ,d nwljs dk ugha gksxkA

3- ;g fd mijksDr nqdku dk fdjk;k nksuksa i{k vk/kk&vk/kk nsxsa o vU; [kpsZ fctyh dk fcy nqdku dh iqrkbZ vkfn nksuksa i{k vk/kk&vk/kk ogu djsaxsA

4- ;g fd mijksDr nqdku dh ,d ,d pkHkh nksuksa i{kksa ds ikl jgsxhA

5- ;g fd mijksDr nqdku frokjh bysfDV~d dEiuh ds uke ls gS ftlds izksizkbVj egs'k pUnz frokjh gS ml ij f}rh; i{k dks dksbZ vf/kdkjh ugha gksxkA

6- ;g fd nksuksa i{k viuk viuk dk;Z iwjh bZekunkjh ls djsxsA nqdku esa nksuksa HkkbZ;ksa dk leku vf/kdkj gksxk tc rd lq/khj pUnz frokjh thfor gS rc rd mudk vf/kdkj jgsxk muds e`R;q ds ckn egs'k pUnz frokjh dk iwjk gd gksxkA

7- ;g fd egs'k pUnz frokjh ds lkFk muds iq= jktsUnz frokjh ,oa ftrsUnz frokjh dk;Z dj ldrs gSaA

8- ;g fd mijksDr 'krksZ ds foijhr dksbZ i{k dk;Z djrk gS rks mDr bdjkjukek jn~n ekuk tk;sxkA

9- ;g fd izFke i{k egs'k pUnz frokjh f}rh; i{k lq/khj pUnz frokjh ds thoudky rd mDr nqdku ls gVk;sxs ughaA rFkk lq/khj pUnz frokjh f}rh; i{k dh e`R;q ds ckn muds okfjlkuksa dk mDr nqdku ls fdlh izdkj dk dksbZ okLrk o ljksdkj u gksxk vkSj u gh dksbZ viuk gd o vf/kdkj trk ik;sxsaA

10- ;g fd mijksDr lqygukek nksuksa i{kksa us [kwc lksp le>dj fcuk fdlh tksj nkc uktk;t ds i<+dj] lqudj o le>dj :c: xokgku rgjhj fd;k x;k rkfd lun jgs vkSj oDr t:jr ij dke vk;sA

rgjhj rkjh[k % 1-10-2003 bZloh izFke i{k

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1- Pawan Kumar Shukla

RG(a)6 Bank Road,

Kanpur.

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The aforesaid agreement and is part of the records  filed  before the court below. 
 

A perusal of the agreement shows that the rent and expenses towards electricity and other charges were being equally shared by the two brothers and paid to the landlord, though the shop was allotted only to the petitioner. It has been held by the court below that it is established from the agreement that in fact the tenant had inducted his brother as sub-tenant in the shop as is apparent from the agreement which has been filed in Suit No. 109 of 2003.

It is apparent from the record and the arguments of learned counsel for the parties that only the petitioner had been allotted the shop in dispute in October, 1981 but thereafter he had inducted his brother in independent business of T.V. repairs in a part of the shop in dispute; that subsequently there was some dispute between the two brothers and ultimately Suit No. 109 of 2003 was filed by the tenant against his brother to whom he had sub-let the shop.An agreement dated 1.10.2003 has been arrived at into the said suit perusal of which it appears that the two brothers were paying shared rent to the landlord. According to the aforesaid agreement between them, the landlord who accepting it in bonafide belief that the rent is being paid by the petitioner as tenant and has been executing the rent receipts accordingly to the petitioner only as he was neither a party in the aforesaid suit nor had any knowledge about the agreement between the tenant and his brother about sharing of the rent.

The court below has recorded a categorical finding of fact that the petitioner had sub-let a part of the shop in dispute to respondent no.3, who is his real brother appears to be enough evidence on record before the court below for arriving at the conclusion that a part of the shop in dispute was sub-let by the tenant petitioner to his brother respondent no.3, hence the courts below have rightly declared vacancy and has released the shop in favour of the landlord.

It is apparent from paragraph nos. 10 and 11 of the judgment of the Apex Court In Ganesh Trivedi (supra) relied upon by the learned counsel for the petitioner that the Apex Court has considered the peculiar facts and circumstances of that case and the pleadings pointed out by the appellant regarding a sale-deed executed by Jagdamba Prasad Awasthi in favour of Ganesh Trivedi. It was acknowledged by the landlord in that case that after the death of Suraj Prasad, tenant Deo Narain who was not a tenant was occupying the suit premises within the knowledge of the erstwhile landlord and this fact was within his knowledge whereas the present case is not a case where the question of title is in dispute or that an outsider has been occupying the premises in dispute without being allotted the shop in dispute as was the case of Ganesh Trivedi (supra). The facts of the present case are clearly distinguishable as this is a case of sub-tenancy for declaration of vacancy on ground of sub-letting which is proved by the landlord. The Court below has recorded a categorical finding of fact that the petitioner had sub-let the premises in suit to his brother who was carrying on his business of T.V repairs independently in a part of the shop in dispute allotted to the petitioner. Subsequently, Suit No. 109 of 2003 was filed by the allottee tenant/petitioner against his brother without arraying the landlord as party in which an agreement dated 1.10.2003 was arrived at between the two brothers. Therefore, sub-tenancy stands proved from perusal of the aforesaid agreement.

As regards limitation of 12 years in moving the application for release is concerned, suffice it to say that cause of action would arise from the date the came to the knowledge of the landlord. As it has come on record that the landlord had no knowledge about the terms and conditions of the agreement entered into between the two brothers in Suit No. 109 of 2003 as he was not a party in the suit the cause of action is to be calculated from the date of his knowledge i.e. after application was filed by respondent no.1 for declaration of vacancy on ground of sub-letting the tenement. Therefore, the application for release is well within time and is not barred by limitation. It appears that the petitioner has done everything at his command to ensure that the fact of sub-tenancy may not get disclosed, though both of the brothers were sharing the rent mutually amongst themselves but in fact the rent was being tendered only by the petitioner as tenant to whom the shop in dispute had been allotted.

For the reasons stated above, I do not find any merit in the writ petition for interfering in the impugned orders in exercise of extra-ordinary powers under Article 226 of the Constitution. The writ petition is accordingly, dismissed. No order as to costs.

Dated 20.4.2011

CPP/-