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2000 Supreme(All) 319
IN THE HIGH COURT OF ALLAHABAD
Sudhir Narain, J.
YOGENDRA KUMAR JAIN - Appellant
Versus
VIKASH JAIN - Respondents
C. M. W. P. 45912 Of 1993
Decided On : 02/22/2000
ATUL DAYAL, K.M.Dayal
The main legal point established in the judgment is the prohibition on subletting without the permission of the landlord and the District Magistrate, and the implications of surrendering tenancy rights on sub-tenants.
Headnote:
tenancy - sub-tenancy - U.P. (Temporary Rent control and Eviction) Act, 1947, U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Section 7(3), Section 25 - The court discussed the legal provisions related to sub-tenancy, surrender of tenancy, and the rights of sub-tenants under the U.P. Acts. It emphasized the prohibition on subletting without the permission of the landlord and the District Magistrate, and the implications of surrendering tenancy rights on sub-tenants.
Fact of the Case:
The petitioner claimed right of tenancy as a sub-tenant in a disputed premises. The trial court found that the tenant-defendants had illegally sublet the premises to the petitioner. The petitioner sought to acquire the rights of tenancy after the tenants surrendered their tenancy under a compromise during the pendency of the revision.
Finding of the Court:
The court found that the landlord had never acquiesced in subletting and that the petitioner was not a sub-tenant but an employee of the tenant. It also held that the tenants had not surrendered the tenancy, but had accepted the decree passed by the trial court.
Issues: The core issue was whether the petitioner acquired any right of tenancy as a sub-tenant, and whether the tenants had surrendered their tenancy rights.
Ratio Decidendi: The court emphasized that sub-tenancy implies a contract between the tenant and the sub-tenant, and that the landlord's acquiescence in possession of an employee of a tenant does not imply acquiescence in sub-tenancy. It also highlighted the prohibition on subletting without the permission of the landlord and the District Magistrate, and the implications of surrendering tenancy rights on sub-tenants.
Final Decision: The court dismissed the writ petition, stating that the petitioner had not acquired any right of tenancy and that the tenants had not surrendered the tenancy. The parties were ordered to bear their own costs.
( 1 ) THE core question in this petition is whether the petitioner acquired any right of tenancy.
( 2 ) BRIEFLY stated the facts are that Smt. Satyawati Jain, the predecessor in Interest of respondent no. 1, filed Suit No. 44 of 1982 in the Court of Judge Small Causes for recovery of arrears of rent, ejectment and damages against Smt. Shila Devi, Anand Kumar and Yogendra Kumar Jain (petitioner herein) with the allegations that the first and second floor portion of premises No, 76/578. Kuli Bazar, Kanpur. was let out to defendant Nos. 1 and 2 for their residence. They constructed their own house No. 6/38. Purana Kanpur and shifted there with bag and baggage and thereafter illegally sublet the disputed accommodation to Yogendra Kumar Jain, defendant no. 3. The plaintiff sent a composite notice dated October 11, 1981, demanding arrears of rent and terminating their tenancy which was served on the defendant Nos. 1 and 2 on 15. 10. 1981 but they did not comply with the notice. It was alleged that the petitioner-defendant No. 3 was in unauthorised occupation.
( 3 ) THE defendant No. 1 filed written statement. It was stated that house No. 6/38, Purana Kanpur. was not constructed by the defendant Nos. 1 and 2 but was purchased by them in the year 1960. It was denied that they had sublet the accommodation to Yogendra Kumar Jain or any other person. The Firm M/s. Pyare Lal Hazarl Lal was the tenant of the accommodation and later on It was converted into a partnership firm. Sri Yogendra Kumar Jain and Shanti Devi were not sub-tenants of the defendants, Yogendra Kumar Jain, the petitioner, did not file any written statement. He had. however, filed an affidavit as pairokar of defendant No. 2. The trial court framed the following issue :
"whether defendant Nos. 1 and 2 illegally sublet the premises in suit to defendant No. 3. If so, its effect?"
( 4 ) ON the date fixed for leading evidence the plaintiffs son, Ajit Kumar Jain, appeared as P. W. 1 and made statement in support of the version contained in the plaint. None appeared for the defendants- The trial court came to the conclusion that the tenant-defendant Nos. 1 and 2 had illegally sublet It to Yogendra Kumar Jain, defendant No. 3. and accordingly decreed the suit on 6. 1. 1990. The defendants including the petitioner filed an application under Order IX. Rule 13 of code of Civil Procedure to set aside the decree of 27. 1. 1990 treating it as an exparte decree. The trial court rejected the application on 31. 3. 1990 on the ground that it was not an ex parte decree but passed on merits as Order XVII. Rule 3 of the Code of Civil Procedure was applicable on the facts of the case. The defendants filed Revision No. 82 of 1990 against this order. The revisional court dismissed the revision on 1. 2. 1992. The petitioner filed Writ Petition No. 8057 of 1992 against the order dated 31. 3. 1990 and 1. 2. 1992 which has been dismissed by the Court.
( 5 ) THE defendants thereafter filed revision against the Judgment of the Judge Small Causes Court dated 6. 1. 1990 along with an application to condone the delay in filing the revision. During the pendency of the said revision, the defendant Nos. 1 and 2. namely, Shila Devi and Anand Kumar filed application on 18. 11. 1992 stating that they do not want to press the revision and accept the judgment of the Judge Smalt Causes Court and they had entered into compromise with the plaintiff. They prayed that the revision be decided in terms of the compromise. Respondent No. 1 rejected the application filed by the applicants to condone the delay in filing the revision by its order dated 15. 9. 1993. The petitioner has filed Writ Petition No. 45912 of 1993 against this order. The defendant Nos. 1 and 2. the tenants, did not file any written statement.
( 6 ) THE learned counsel for the petitioner contended that the petitioner was sub-tenant of the disputed premises and the tenants defendant Nos. 1 and 2 having surrendered their tenancy under th
