Prahlad Kumar vs Siddnath And Others
2012 Latest Caselaw 6184 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								Reserved on 24.9.2012
 
								Delivered on 20.12.2012
 

 
Case :- CIVIL REVISION No. - 253 of 2001
 

 
Petitioner :- Prahlad Kumar
 
Respondent :- Siddnath And Others
 
Petitioner Counsel :- W.H.Khan,Puneet Kumar Gupta
 
Respondent Counsel :- Jamal Ali,Jamal Ali
 

 
				Connected with
 
Case :- CIVIL REVISION No. - 254 of 2001
 

 
Petitioner :- Prahlad Kumar
 
Respondent :- Siddnath And Others
 
Petitioner Counsel :- W.H.Khan,Punit Kumar Gupta
 
Respondent Counsel :- Jamal Ali,Jamal Ali
 

 
Hon'ble Mrs. Sunita Agarwal,J.

These are landlord's revisions directed against the judgment and order dated 17.3.2001 passed by the Special Judge(SC/ST Act)/ SCC Judge, Banda in SCC case no. 1 of 1988 and SCC case no. 2 of 1988 between the plaintiff revisionist and defendants opposite parties.

The SCC suit no. 1 of 1988 was filed for eviction from three shops in question and recovery of rent of Rs.4904/- and damages from 5.1.1985 to 4.1.1988. The SCC suit no. 2 of 1988 was filed for eviction from godown and payment of Rs.4684/- towards payment of rent and damages from 5.1.1985 to 4.1.1988. As the dispute was between the same parties for the same period and grounds of eviction were same, both the suits were heard and decided together by a common judgment by the SCC court. Two revisions, namely SCC revision no. 253 of 2001 and 254 of 2001 filed before this Court were heard together and are being decided by common judgment.

Sri Jamal Ali, learned counsel has filed vakalatnama on behalf of heirs and legal representatives of respondent no.1. He had no objection. As such, the substitution application filed in Civil Revision No. 254 of 2001 is allowed. Office is directed to make necessary incorporation in the array of parties before issuing copy of this order. However, Legal heirs of deceased respondent no. 1 in Civil Revision no. 253 of 2001 are already on record. The counsel appearing on behalf of heirs was heard on merits.

Facts relevant for the purpose of deciding above revisions are that notice dated 10.10.1986 for eviction was given to defendant opposite parties terminating the vacancy and calling upon them to vacate the premises and pay the arrears of rent. It was alleged that the defendant Ram Sajivan inducted sub-tenants in the premises in dispute and three shops in tenancy of the defendants respondents were sublet to respondents no. 9,11,13,14 and 15. Unauthorised occupants namely defendants no. 9 to 15 did material alteration in the disputed premises at the instance of defendants no. 1 to 8. This apart, there was default in payment of rent from April, 1981. The suit was filed on 5.1.1988 for eviction and arrears of rent after service of notice upon the defendants. The defendant no. 1 filed written statement denying the plaint allegations. Separate written statement was filed by defendant no. 5 and 6 wherein they have specifically denied the plea of subletting, material alteration and default in payment of the rent.

Learned counsel for the revisionist addressed the Court on the issue of subletting and submits that the revisional court while deciding the said issue has committed material irregularity in rejecting the plea of the plaintiff revisionist on the ground that there was delay in filing the suit on the part of landlord. Learned counsel for the revisionist submits that the revisional court has not gone to the fact as to whether the premises was sublet by the defendants tenants and rather decided the suit against the plaintiff on the ground that the plaintiff had acquiesced with the fact of subtenancy as he did not file any suit prior to the year 1988 though the subtenancy was created from 1976 to 1984. As the plaintiff remained silent and slept over the matter, inference was drawn that he had accepted the fact of subtenancy and thereby consented to the same.

Learned counsel for the plaintiff revisionist submits that the approach of the trial court on issue no. 3 regarding subtenancy suffers from illegality in as much as there cannot be an implied consent under the provision of U.P. Urban Buildings(Regulation of Letting, Rent and Eviction Act, 1972 (hereinafter referred to as the 'Act').

Learned counsel for the revisionist further submits that in the scheme of the Act, the permission in writing for subletting is necessary and in absence of any such permission, no implied consent can be drawn. Moreover, no period of limitation has been provided for raising the issue regarding subtenancy created after coming into operation of the Act. The provisions of Section 12(2) and Section 25 of the Act are mandatory in nature and there being a deeming clause under Section 12(2) of the Act, inaction of the landlord for few years for eviction on the ground of subletting does not amount to consent.

Learned counsel relied upon judgment of this Court in Suraj Bhan vs. VII ADJ Court No. 8 Meerut decided on 25.10.2007 reported in 2007-LAW(All)-10-19 in order to submit that even if the subtenancy has come into existence with the oral consent of the landlord, the tenant or subtenant are liable to eviction as under the Rent Control Act, written permission of the landlord is necessary for creating subtenancy.

The second argument of learned counsel for the revisionist is that there was default in payment of rent and the issue was decided against the plaintiff on the ground that entire arrears of rent was deposited by the tenant on the first date of hearing of the suit. As such, the tenant is entitled for benefit of Section 20(4) of the Act, the suit cannot be decreed on the ground of default in payment of rent on the part of the tenant. In order to substantiate his argument, learned counsel for the revisionist submits that though the tenant deposited certain amount towards rent, court fee, water tax and interest in both the suits, however there was deficiency of Rs.1273/- in SCC No. 1 of 1988 and of Rs.506/- in SCC No. 2 of 1988. In view of the  said deficiency,  the tenant was not entitled to the benefit of  Section 20(4) of the  Act.  The  SCC court has illegally  decided the issue in favour of the tenants on the  ground that as both the parties filed  their  evidences and the  defendants have established   from their evidences that  they did not  commit  any  default in payment of rent, the suit  for eviction cannot be decreed.   The issue  of  deposit on the first date of hearing of the suit and the  benefit  of section 20(4) of the  Act was not   dealt with in accordance with law and  as such  the  judgment  and the order dated 17.3.2001 passed by the  SCC court cannot be sustained.  Learned counsel for the revisionist placed reliance upon the judgment of this  Court dated 14.7.2008 passed in the case of  Ram  Pratap Singh @ Shailendra  @ Shalu vs.  Vinod  Kumar Shivhare and others.

Sri Adil Jamal, learned counsel for opposite parties refuting submission of learned counsel for the revisionist submits that this is a clear case of implied consent of the landlord and subtenancy, if any, created by the tenant stood regularised under Section 14 of the Act as the landlord had slept over the matter and did not take any action for eviction of the alleged subtenant from 1976 till 1988. For the first time, the suit was filed in the year 1988 and the landlord being aware of the nature of the premises in question and having not raised any objection to the same , cannot turn around and say that the subtenancy has been created without his consent. He further submits that the plea of subtenancy having been categorically denied by the tenants in the written statement, the burden lay upon the landlord to prove the same. The plaintiff landlord had failed to discharge the said burden, the trial court committed no illegality in deciding the issue of tenancy in favour of defendants tenants. In order to substantiate his argument, he placed reliance on 1984 ALJ 99 (Rajendra Kumar & others vs. District Judge, Bulandshahar and another); 1984(2) ARC 61 and (2010) 1 ARC 532.

Heard Sri Gulrej Khan, learned counsel for the revisionist and Sri Adil Jamal holding brief of Sri Jamal Ali, learned counsel for the opposite parties and perused the record.

In so far as the first point is concerned, submission of learned counsel for the revisionist is that  the revisionist  could not be non-suited  by the  SCC Court  on the ground that he has kept silence  over the matter till 1988 when the suit was filed.  The reference  may be  made to Section 12(2)  and  Section 25 of the  Act. The same are quoted below:-

12. Deemed vacancy of building in certain cases:

(2) In the case of 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."

"25.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."

There  are serious dispute between the parties  in respect of subtenancy  and from the  mere fact that the notice was  given by the  landlord  for the first time in the year 1986  terminating the tenancy on the ground of subletting and the  suit was filed in 1988, it cannot be  concluded that the subtenancy, if created, in the disputed premises  stood regularised under  Section 14 of the  Act.  Section 14 of the  Act is quoted  below:-

"14. Regularisation or occupation of existing tenants.-Notwithstanding anything contained in this Act or  any other law for the time being in force, any licensee(within  the meaning of Section 2-A) or  a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the  Uttar Pradesh Urban Buildings ( Regulation of Letting, Rent  and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court  or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building."

Under section 25 read with section 12(2) of the  Act, subtenancy of  part of the building is permitted with the permission in writing  of the landlord and with the  permission of the District  Magistrate  and where the tenancy is ceased within the meaning of Section 12(2) of the  Act, the  occupant of the building  or  in part thereof, is deemed to have sublet the building or part.  The  Apex  Court  in AIR 2001 SC 2849 (Biswantah Poddar vs. Archana Poddar & another) has held that previous written consent  of the landlord being mandatory requirement of law, oral permission, if any, is meaningless.  The same  view was  reiterated in AIR 2002 SC 1003 (Gurdial Singh & others vs.  Raj Kumar  Aneja & others) wherein  it was held that  when the  law speaks of written consent, the court could not have substituted to 'oral  consent' in place thereof'.  In  AIR 2002 SC 2057 (P. John Chandy and Co. (P) Ltd. vs. John P. Thomas) the  Apex  Court  considered the aspect of delay in  initiating the proceeding   to evict on the ground  of subletting.  In para 11 and 12 of the said judgment it was held that mere inactivity or lack of initiation on the part of  landlord would not amount to consent.  The distinction was drawn between 'acquiescence' and 'consent' in relation to  a dispute  between a landlord and  a tenant with reference to the provisions of the  Act. It was held that the consent means there has to be some positive action on the part of the landlord so that the tenant can be said to have the authority to  sublease his lease rights.  Mere  silence may not be enough.

Considering the judgments of the  Apex  Court, this  Court  in (2006) 2 ARC 737 ( Bhagwan Das & another vs.  Rent Control and Eviction Officer/SDO, Sambhal, Moradabad and others) has held that even though the landlord was aware of the fact that since 1974 the subtenant was inducted, this  will not make  any difference.  The subtenancy, be the part  or whole of the tenanted accommodation cannot be regularised under Section 14 of the  Act, even if landlord is aware of the same. If a stranger is inducted as tenant without  written  permission of the landlord, vacancy  comes into existence  and tenancy  of new firm cannot be regularised  under  Section 14 of the  Act. 

In view of  above discussion, the reliance placed by the learned counsel for the tenants opposite parties on the judgments in submitting that the subtenancy, if any, stood regularised under section 14 of the Act, cannot be accepted. The judgments are distinguishable on the facts of the case. As reards burden of proof is concerned, there is no dispute about the fact that initial burden is upon the landlord to prove that the premises had been sublet. However, since there is no discussion and finding on the issue of actual occurrence of subtenancy during the period alleged by the plaintiff/landlord, in the judgment of the trial court and as such this issue raised by the counsel for the opposite parties cannot be adjudicated in the revisional jurisdiction of this Court. The conclusion is that  SCC court has committed material irregularity in dealing with the issue  of subletting  raised by the plaintiff/revisionist. As the trial court has not recorded any finding  as to whether there was any subtenant in the premises in question from 1976 to  1984 as  alleged by the plaintiff, this Court in revisional jurisdiction has no option  but to relegate the issue  on merits. 

Dealing with the second  submission  of the learned counsel for the  plaintiff revisionist that there was deficiency in deposit of  arrears of rent  on the  first date of filing of both  the suits by him, the finding of  SCC court is hereby set aside.  The  SCC  court is further directed to consider the objections of plaintiff-revisionist regarding deficiency in making deposit  and record a categorical finding as to whether the benefit of Section 20(4) of the  Act  can be given to the defendants tenants.  The trial court is further directed to  consider objections of defendants  tenants regarding  tendering of rent and record a categorical finding as to  whether  there was  any default in payment of rent on the part of defendants  tenants or not. 

As  observed above,  no categorical finding has been recorded by the trial court with regard to  the fact that  as to whether there was any  default or not, this  Court relegates the matter on this issue  for  fresh decision.

With the above observations, the judgment and order dated 17.3.2001 passed by the Special Judge(SC/ST Act)/ SCC Judge, Banda is hereby quashed and the  SCC court  is directed to decide the matter afresh on the issues relegated to it keeping in view the observations made above and in accordance with law.  As the matter is an old one, the  SCC court is directed to decide the same within a period of six months from the date  a certified copy of this order is filed before it.

Both the revisions are allowed. There shall be no order as to costs.

Order Date :- 20.12.2012

P.P.