Satyendra Bajpai vs Addl Judge. Small Causes (I-St) ...
2013 Latest Caselaw 7228 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(Judgment reserved on 26.11.2013)
 
(Judgment delivered on 02.12.2013)
 

 
Court No. - 21
 
Case :- RENT CONTROL No. - 143 of 2013
 
Petitioner :- Satyendra Bajpai
 
Respondent :- Addl Judge. Small Causes (I-St) Court No 18 Lucknow And Ors.
 
Counsel for Petitioner :- P.S Mehra
 
Counsel for Respondent :- Manish Kumar,Abhay Srivastava
 

 
Hon'ble Sibghat Ullah Khan,J.

In this writ petition on 21.11.2013, 25.11.2013 and 26.11.2013 following orders were passed on the writ petition and order sheet:

"21.11.2013: Put up as fresh on 25.11.2013.

Until 25.11.2013 no dispossession shall take place. Learned counsel for respondent No.2 states that the receipts, copies of which have been filed by the petitioner along with the writ petition showing payment of rent to Sri Surendra Nath Srivastava, real brother of respondent No.2, Dr. Mahendra Nath are forged and Sri Surendra Nath Srivastava never issued any receipts. On inquiry from court as to whether he can file affidavit of Surendra Nath Srivastava, learned counsel states that it can very well be done. Accordingly, on 25.11.2013 affidavit of Surendra Nath Srivastava shall be filed along with vakalatnama of some advocate.

Learned counsel for petitioner is directed to immediately implead Sri Surendra Nath Srivastava as respondent No.4 in the writ petition.

25.11.2013: Learned counsel for the petitioner has filed supplementary affidavit.

Shri Surendra Nath Srivastava, respondent no. 4 is present in the Court and states that he has never issued any receipt in favour of the petitioner. He further states that the upper portion belongs to him and ground floor belongs to his brother who is opposite party no. 2 Dr. Mahendra Nath.

Put up tomorrow i.e. 26.11.2013.

Stay order granted earlier shall remain in operation till tomorrow.

26.11.2013: Heard learned counsel for both the parties.

Judgment reserved.

Put up for delivery of judgment on 02.12.2013.

Until 02.12.2013 petitioner shall not be dispossessed from the property in dispute."

Dispute relates to part of House No.136/1984, Khurshed Bagh, Lucknow consisting of three rooms, (or two rooms) verandah, godown etc. According to the opposite party No.2, Dr. Mahendra Nath, the tenant of the accommodation in dispute was Rajesh Kumar Shukla, opposite party No.3 against whom he filed release application under Section 21 of U.P. Act No.13 of 1972 in the form of P.A. Case No.58 of 2009, Dr. Mahendra Nath Vs. Rajesh Kumar Shukla, which was allowed ex parte by Prescribed Authority/ First Additional J.S.C.C., Court No.18, Lucknow on 20.10.2010. Copy of the said judgment is Annexure-7 to the writ petition. According to the release application, accommodation in dispute consisted of two rooms and other amenities, which was let out in 2000 and that on the first floor his brother, opposite party No.4, Satyendra Nath was residing and in mutual partition ground floor had come in his share. It was also stated that accommodation in dispute was given on rent to opposite party No.3 in 2000, however he resided only uptil 2004 and thereafter, he sublet the same to one of his relations, who was residing. It was also stated that for six years no rent had been paid. It was also stated that opposite party in the release application was residing in his own house.

The opposite party in the release application appeared in the case and filed vakalatnama and an application seeking time for filing written statement. Thereafter, he did not appear in the proceedings and also did not file any evidence. Accordingly, proceedings were directed to proceed ex parte. This is very strange that in the release application it was stated that opposite party, Rajesh Kumar had sublet the portion to one of his relations, however the name of the relation was not mentioned. During arguments learned counsel for opposite party No.2 stated that the present petitioner was that relation of Rajesh Kumar, opposite party in the release application.

According to the petitioner, he was the tenant of the entire ground floor consisting of about six rooms and he had been inducted as tenant by Surendra Nath, opposite party No.4, real brother of opposite party No.2 and initially rate of rent was Rs.2000/-, however afterwards half portion was surrendered and the tenancy of remaining portion (now in dispute) was settled for Rs.1000/- per month which he was paying against receipts. Copies of few receipts have also been filed along with the writ petition and of rest along with the supplementary affidavit. Petitioner also filed Regular Suit No.181 of 2009 impleading therein Surendra Nath as sole defendant and praying that defendant landlord must be restrained from forcibly evicting him. In the said suit, ex parte temporary injunction was granted 31.07.2010 by Civil Judge, Junior Division, North Lucknow. The allegation that in spite of filing of the suit, Surendra Nath, opposite party No.4 is continuing to accept the rent from the petitioner is unbelievable on the face it. After start of the litigation by the tenant against the landlord no landlord accepts the rent. Sri Surendra Nath categorically denied having issued the receipts or having let out the accommodation in dispute to the petitioner. He categorically admitted that ground floor including the portion in dispute belonged to his brother i.e. Mahendra Nath.

However, the fact remains that in the release application it was admitted that the alleged tenant opposite party in the release application, i.e. Rajes Kumar Shukla, opposite party No.3, in this writ petition was not residing and had sublet the portion to one of his relations. It was utterly wrong on the part of opposite party No.2, landlord not to mention even the name of alleged sub-tenant. Now it is admitted to the parties that when release application was filed Rajesh Kumar Shukla was not residing but petitioner Satyendra Bajpai was residing in the house in dispute.

It is correct that in eviction proceedings including release application under Section 21 of the Act against tenant, sub tenant is not necessary party. However the fact as to whether petitioner is sub-tenant or the tenant has to be decided as according to the petitioner he is not sub-tenant but the tenant. It has been held by this Court in Chhakki Lal Vs. III Additional District Judge, Mainpuri, AIR 1977 All 8 (para-4) that if such objection is raised in proceedings under Section 23 of the Act for enforcement of an eviction order passed under Section 21 of the Act then it has to be decided.

Petitioner filed impleadment application in proceedings under Section 23 of the Act, which was initiated by opposite party No.2 for (Execution Case No.2 of 2011) enforcement of ex parte release order dated 20.10.2010 in the form of P.A. Misc. Case No.1-C of 2011, Satyendra Bajpai Vs. Dr. Mahendra Nath. Prescribed Authority/ First Additional J.S.C.C., Court No.18, Lucknow decided the case on 22.10.2013 against the petitioner, which order has been challenged through this writ petition. In that case, Surendra Nath, opposite party No.4 had also filed an affidavit supporting the case of his brother, opposite party No.2. The application was mainly rejected on the ground that partition cannot be questioned by the tenant or sub-tenant and sub-tenant was not a necessary party in eviction proceedings and provisions of Section 47, C.P.C. were not applicable in proceedings under Section 21 of the Act and impleadment application of the applicant Satyendra Bajpai in the Execution Case No.2 of 2011 had been rejected. In my opinion, the rejection of impleadment application in execution case did not make any difference. As far as applicability of provisions of Section 47, C.P.C. is concerned, the said section does not apply but as held in the aforesaid authority of Chhakki Lal it has to be decided in execution as to whether the person alleged to be tenant by the landlord and against whom release order has been passed was in fact tenant or not.

Some photographs were filed by the petitioner showing that he was sitting comfortably with Surendra Nath, however those photographs are utterly irrelevant for deciding controversy in question.

In my opinion, the most important point to be decided is as to whether petitioner was tenant or not. The fact that he was inducted as tenant if at all by Surendra Nath or his brother Dr. Mahendra Nath, opposite party No.2 was not very relevant.

Accordingly, writ petition is allowed. Impugned order is set aside. Matter is remanded to the Prescribed Authority to decide as to whether petitioner is tenant of the premises in dispute inducted therein by opposite parties No.2 and 4 or not. Until decision, petitioner shall not be evicted from the premises in dispute provided that he deposits Rs.75000/- before the Prescribed Authority on 20.01.2014 along with the certified copy of this judgment. On the said date, both the parties shall appear before the Prescribed Authority. It is further directed that until decision, petitioner shall deposit Rs.2000/- per month for the period starting from February, 2014 to be deposited by 7th of each succeeding month (first deposit be made on or before 07.03.2014). The order regarding disbursement of this amount shall be passed at the time of final disposal of the application. The amount shall be kept in some good interest bearing account. However, in case on 20.01.2014, the amount is not deposited this order shall stand automatically vacated and writ petition shall be deemed to have been dismissed. Similarly, if subsequent deposits are not made, application of petitioner shall be dismissed by Prescribed Authority and the deposited amount shall be paid to opposite party No.2, Dr. Mahendra Nath.

Writ Petition is accordingly allowed as above.

Order Date :- 02.12.2013

NLY