1. Heard Sri W.H. Khan, learned Senior Advocate assisted by Sri J.H. Khan, learned counsel for the petitioner and Sri Iqbal Ahmad, learned counsel for respondent no. 1.

2. This is a tenant's writ petition. Respondent no. 1 is the owner and landlord of the building in dispute which consists of one room, i.e., a shop, in premises No. 88/373A ( New No. 88/390), Humayunbagh, Kanpur Nagar.

3. It is not in dispute that the shop in question was initially under tenancy of one Mohd. Ismail. The building was owned by somebody else and purchased by respondent no. 1, Sri Mansoor Ali vide sale deed dated 10.05.1985. He served a notice upon petitioner-tenant sometime in 1999 i.e. after the death of Sri Mohd. Ismail, and devolution of tenancy rights upon his legal heir( s).

4. Application under Section 21( 1)( a) of U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972 ( hereinafter referred to as the "Act, 1972"), was filed in the year 2000 vide plaint dated 24.08.2000 registered as Suit No. 302 of 2000 in the court of Judge Small Causes, Kanpur Nagar. There were three grounds for ejectment, namely, default in payment, sub-letting and denial and renouncement of title of landlord/owner. It is specifically pleaded in para 3 of application that after death of Mohd. Ismail, Smt. Hazra Begum solely is occupying the disputed building but has never paid any rent to plaintiff-landlord.

5. The application was contested by petitioner, filing a written statement, stating that monthly rent of shop is Rs. 75/- inclusive of water tax; Sri Mohd. Ismail died leaving widow, i.e., petitioner; three sons and one unmarried daughter; and, all are joint/co-tenants of the accommodation in question. The landlord, having not impleaded other legal heirs is guilty of non-joinder of necessary parties. The rent was tendered by petitioner-tenant for the period of 01.01.1998 to 31.07.1999 but returned with postal endorsement of "left", dated 22.07.1999, whereafter it was deposited under Section 30( 1) of Act, 1972 in Misc. Case No. 543/70 of 1999 vide court's order dated 02.12.1999. Subsequent rent from January, 2001 to December, 2001 was deposited on 23.03.2001. Hence there is no default. There is no sub-letting. There is no cause of action for filing the application for ejectment of tenant.

6. The petitioner-tenant also moved an application dated 06.08.2001 for appointing an Advocate Commissioner for spot inspection but the said application was rejected by Trial court vide order dated 05.09.2001. The petitioner came to this Court in Writ Petition No. 40928 of 2001. It was disposed of with the following directions:

"On perusing the averments in the application for appointing Advocate Commissioner as well as objection of the landlord and taking into account other relevant facts and circumstances, I am of the opinion that it would be expedient in case Advocate Commissioner is appointed but taking care that tenant petitioner is not allowed to delay the proceedings under its garb. The petitioner may, in case Rent Control Case No. 20 of 2000 has not been heard and decided finally as yet petitioner may file certified copy of this judgment within one week from today and in that contingency the Court below shall appoint Advocate Commissioner with a direction to submit his report within one week after notice to the respective parties. Objection against the Advocate Commissioner's report may be invited within ext one week and thereafter case itself may be decided within since weeks of the filing of the objections.

Learned counsel for the petitioner gives a solemn assurance to the effect that no adjournment will be sought before the Prescribed Authority. It may be mentioned that application for appointment Advocate Commissioner shall be allowed subject to petitioner's depositing cost to such an Advocate Commissioner as well by making payment of Rs. 1,000/- as cost to the landlord also within one week of filing of certified copy of this judgment.

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