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2016 Supreme(All) 3496
ALLAHABAD HIGH COURT
Devendra Kumar Upadhyaya, J.
Awadhesh Kumar Gupta - Appellant
Versus
Additional Judge Small Causes-1 Room No. 18 Lko. and Ors. - Respondent
Rent Control No. 19 of 2015
Decided On : 05-07-2016
For the Petitioner:- Pritish Kumar, Gaurav Mehrotra and Ram Karan Agarwal, Advocates.
For the Respondent:- U.N. Misra, Mohd. Aslam Khan and Yogesh Gurnanai, Advocates.
The burden of proof lies on the petitioner to establish the combined tenancy and subletting. Non-joinder of necessary parties does not vitiate the proceedings if there is a valid termination of the lease.
Headnote:
Ejectment - Tenancy Dispute - U.P. Act No.13 of 1972 - Section 20(2)(a), (e) - Section 30(1) - Order 22, Rule 3, CPC - Burmah Shell Oil Distributing v. Khaja Midhat Noor - M/S. Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar
Fact of the Case:
The tenant filed a petition challenging the decree passed in favor of the landlord for ejectment and arrears of rent and damages. The dispute arose from a rent note executed in 1962 for a tenanted portion of a building. The landlord filed a suit for ejectment and arrears of rent based on non-compliance with a notice of demand. The trial court decreed the suit, and the revisional court upheld the judgment.
Finding of the Court:
The court found that the tenancies of the shop and godown were separate, rejected the plea of combining tenancies, and held that the defendants had sublet the premises. The court also rejected the petitioner's arguments regarding the relief claimed, non-appearance of the original plaintiff, validity of the notice, non-joinder of necessary parties, and admissibility of the rent note.
Issues: The issues involved the validity of the notice, non-joinder of necessary parties, admissibility of the rent note, and the nature of the tenancies and subletting.
Ratio Decidendi: The court held that the burden of proof lies on the petitioner to prove the combined tenancy and subletting. It also emphasized that the original tenants had inducted a sub-tenant and failed to disprove the subtenancy. The court further ruled that the notice was valid and the non-joinder of necessary parties did not vitiate the proceedings.
Final Decision: The writ petition was dismissed, and no costs were awarded.
Devendra Kumar Upadhyaya, J. –
Heard learned counsel for the parties and perused the records.
2. This petition by the tenant has been filed challenging the order dated 19.01.2013, passed by the First Additional Judge Small Causes, Court No.18, Lucknow whereby the suit filed by the landlord for ejectment and arrears of rent and damages has been decreed. The petitioner has also challenged the revisional order passed by learned revisional court on 12.01.2015 dismissing the revision petition and upholding the judgment of the trial court.
3. The facts giving rise to the controversy involved in this case are that on 13.07.1962 a rent note was executed for tenanted portion of the building bearing No.86 consisting of four rooms, a verandah, courtyard, staircase, dochatti, latrine and bathroom, between late Manorama Devi and three tenants, namely, Kailesh Chandra Jain, Ram Chandra Gupta and Bala Prasad Gupta for a rent of Rs.75/- per month.
4. In October, 1972 the rent was enhanced to Rs. 146/- including Rs. 11/- as water tax. In the year 1981 a Miscellaneous Case No.167 of 1981 was filed by the partners of M/s. Bharat Kirana Store, under Section 30 (1) of U.P. Act No.13 of 1972. The partners of the said firm who filed the said miscellaneous case were late Kailash Chandra Jain, Ram Chandra Gupta and Awadhesh Kumar Gupta and five other persons. On 31.01.1983, a notice of demand of arrears of rent for the period commencing from 01.02.1981 till 31.12.1982 and ejectment was sent which was served on the tenants on 02.02.1983. When the terms of the notice was not complied with, late Manorama Devi filed a suit on the grounds enumerated in Section 20 (2) (a) and (e) of U.P. Act No.13 of 1972. During pendency of the suit, Smt. Manorama Devi died and in her place her legal heirs were substituted as plaintiffs. The suit was contested by filing written statement stating therein inter alia that previously the rent was Rs. 75/- per month for a shop in the house and in the year 1976 late Manorama Devi and her husband agreed with the partners of the firm M/s. Bharat Kirana Store to consolidate the tenancy and enhance the rent of the shop and godown to Rs. 300/- per month which was accepted in the name of Lala Motilal Rastogi who realised the rent regularly. The notice which formed the basis of the suit was said to be bad and the suit was also alleged to suffer from the vice of non-joinder of Lala Motilal Rastogi and other partners of M/s. Bharat Kirana Store. Learned trial court on the basis of pleadings available framed nine points for determination and decreed the same by the judgment and order dated 19.01.2013. The petitioner filed SCC Revision challenging the said judgment and order dated 19.01.2013 which too was dismissed by means of impugned judgment and order dated 12.01.2015 passed by the revisional court.
5. Learned trial court while allowing the suit rejected the plea taken by the petitioner regarding combining the tenancies of the godown and the shop and inclusion of additional tenants and further gave finding that both tenancies were in respect of separate premises having separate landlords. In respect of shop late Manorama Devi was held to be landlord and in respect of godown Lala Motilal Rastogi was held to be landlord. The trial court further held that the defendants had sublet the premises and as such the provisions of Section 20 (2) (a) and (e) of U.P. Act No.13 of 1972 were attracted in the case.
6. Learned counsel for the petitioner has taken various grounds to impeach the impugned judgment and orders passed by the learned courts below. The first ground taken by learned counsel for the petitioner is that since no relief was claimed in favour of the plaintiff of SCC suit and the relief was prayed for in favour of the predecessor-in-interest of the plaintiff who had already died, as such no relief could be granted in favour of dead person. In support of this argument, learned counsel for the petitioner has placed reliance on the ca
