The tenant is entitled to adjust the amount of house tax paid by him towards rent, and the mere presence of a person other than the tenant in the shop does not amount to subletting unless exclusive possession is given to such person and the tenant loses control over the premises.

( 1 ) THIS writ petition is directed against the Judgment and decree dated 2. 2. 1996 passed by the judge. Small Causes Court, respondent No. 2, decreeing the suit for recovery of arrears of rent, ejectment and damages against the petitioner and defendant-respondents and the order of revisional court dated 22. 7. 1998 affirming the said judgment in revision.

( 2 ) KESHAV Kinkar Narain Singh, the husband of respondent No. 4, filed S. C. C. Suit No. 891 of 1977 against the petitioner and the defendants for recovery of arrears of rent, ejectment and damages on the allegation that the father of the petitioner, Mahlpal Singh, was tenant of the house in dispute at monthly rent of Rs. 50. The defendants fell in arrears of rent and house and water tax since 1. 1. 1975. A notice of demand dated 27. 6. 1977 and termination of their tenancy was sent but in spite of service of notice it was not complied with. The defendants sublet the accommodation to Devendra Kumar Singh and Rajendra Singh, defendant Nos. 8 and 9, and on this ground they were liable for eviction.

( 3 ) THE petitioner filed written statement denying that any default was committed. He claimed that the amount was paid towards house tax and that was liable for adjustment and if that amount was taken into account, he was not in arrears of rent for more than three months on the date of service of notice. It was denied that the accommodation was sublet to Devendra Kumar Singh and Rajendra Singh.

( 4 ) THE plaintiff-respondent filed an application to strike off the defence of the petitioner under order XV. Rule 5 of the Code of Civil Procedure for not depositing the amount as required under the said provision. The trial court struck off the defence and that order was affirmed in revision. The trial court, on merits, came to the conclusion that defendants had committed default in payment of arrears of rent and had sublet the accommodation to defendant Nos. 8 and 9 and on these findings it decreed the suit on 2. 2. 1996. The petitioner preferred a revision before the district Judge. Respondent No. 1 has dismissed the revision on 22. 7. 1998.

( 5 ) THE petitioner has challenged the findings on these two questions in this writ petition. The core question is as to whether the amount of house tax paid by the tenant, which was payable by the landlord, was liable to be adjusted towards payment of rent. There is no dispute that as regards water tax, the liability is on the tenant as provided under Section 7 of U. P. Urban buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (in short the Act ). The liability to pay house tax is on the landlord as provided under sub-section (2) of Section 179 of U. P. Nagar mahapalika Adhiniyam, 1959 which reads as under :

( 6 ) IN any other case, the tax shall be primarily leviable as follows, namely (a) if the property is let from the lessor ; (b) if the property is sub-let from the superior lessor ; (c) if the property is unlet from the person in whom the right to let the same vests. Sub-section (4) of Section 179 provides that an occupier who makes any payment for which he is not primarily liable under the foregoing provisions shall, in the absence of any contract to the contrary, be entitled to be reimbursed by the person primarily liable.

( 7 ) IN Basant Lal Katiyar v. Boom Ram Kapoor and others, AIR 1963 All 568, considering the provisions of Section 149 of the Municipalities Act. which is in conformity with Section 179 of u. P. Mahapalika Adhiniyam, the Court held that if the tenant pays the amount on demand made by the municipal authorities, the tenant is entitled to be reimbursed by the lessor.

( 8 ) IN Hem Raj Singh and others v. VIIth Additional District Judge. Kanpur and others, 1984 (1)ARC 177. the Court relying upon the provisions of Section 179 (4) of U. P. Nagar Mahapalika adhiniyam held that the tenant is entitled to adjust the amount of taxes in rent. Apart from it, clause (g) of Section 108 of the Transfer of