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Smt. Munni Devi v. Ratan Lal & Another - CIVIL REVISION No. - 388 of 2004 [2007] RD-AH 15912 (22 September 2007)

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Civil Revision No. 388 of 2004

Smt.Munni Devi Vs. Ratan Lal & another

Hon.Janardan Sahai,J

A suit for rent and ejectment was filed by Smt. Munni Devi applicant against the defendant opposite parties Ratan Lal and Hari Shankar. The case of the plaintiff is that the disputed shop was let out in the year 1968 to the defendant no.1 Ratan Lal; that Ratan Lal had sub let the shop in dispute to Hari Shankar his brother in law, defendant no.2; that the defendant no.1 had made material alterations in the building in dispute. The plea of denial of the landlord's title was also taken. According to the plaintiff the defendant no.2 Hari Shankar came in March, 02 for payment of rent in his own name stating that he is the tenant of the building in dispute and it was then for the first time the plaintiff discovered that the defendant.2 was carrying on business in the shop. The suit was contested by the opposite parties who filed their joint written statement. The subtenancy was denied. It was alleged that originally the defendant no.2 was carrying on the business of general merchants and parchun with defendant no.1 in the name of M/s Hari Shankar Ravi Shankar and thereafter in the name of Hari Shankar Navin Kumar. It was alleged that the plaintiff had seen defendant no.2 carrying on business from the very beginning but no objection was however raised and the plaintiff, her husband and son had consented in his carrying on business in the disputed shop. In support of the case of the plaintiff, her son and power of attorney holder Daya Ram was examined. Defendants 1 and 2 were examined in defence. The trial court framed six issues on the point whether the defendant no.1 had sub let the building to the defendant no.2; whether any material alterations in the shop which had diminished its value has been made by the defendant; whether the defendant had denied the title of the landlady; whether the defendants committed default in payment of rent; whether the defendants are entitled to the benefit of Section 20 (4) of U.P.Act no.13 of 1972. The trial court found that the sub letting was not proved; that it was not established that the defendants had made material alterations which had diminished the value of the building; that the rent, costs etc were deposited on the Ist date of hearing and therefore the defendants are entitled to the benefit of Section 20(4) of the Act. In view of these findings the suit was dismissed.

I have heard Sri B.N.Asthana learned Sr. Counsel assisted by Sri P.K.Asthana counsel for the applicant and Sri N.C.Rajvanshi learned Sr. Counsel appearing for the respondents.

The finding on the question of material alterations, denial of title and the benefit of Section 20(4) have not been challenged by the applicant's counsel. Counsel for the applicant has challenged only the finding regarding sub-letting. He drew my attention to the averments made in para 25 of the joint written statement in which the plaintiff's case that she came to know about the tenancy of the defendant no.2 for the first time in March, 02 was denied. It was pleaded that since 1974 the defendant no.2 was doing the business exclusively and before that he was doing the general merchant and parchun business with defendant no.1 in the name of Hari Shankar Naveen Kumar and this fact was in the plaintiff's knowledge and in the knowledge of her husband and sons who were seeing the defendant carrying on business and made no objections. They have therefore consented to the defendant no.2 carrying on business in the disputed shop. In his deposition in the trial court it was admitted by Hari Shankar that there is no license in the name of Ratan Lal and that he is doing business in the shop in dispute since 1969-70. The trial court relied upon the statement of Daya Ram and has recorded a finding that defendant no.2 was doing business with defendant no.1 from the very beginning and defendant no.2 was continuing with the consent of the landlord and his tenancy has therefore been regularised under Section 14 of U.P.Act no.13 of 1972.

It is not in dispute that the rent was paid in the name of defendant Ratan Lal although it has come in evidence that some times the rent was paid by Ratan Lal himself and some times by Hari Shankar his brother in law and some times by other persons. Ratan Lal was thus the tenant of the building in dispute and the defendant respondent no.2 Hari Shankar was never the tenant of the building in dispute. There was no relationship of landlord and tenant between Hari Shankar and the plaintiff. The court below has therefore erred in holding that the defendant no.2 is entitled to the regularisation of tenancy under Section 14 of the Act. In Girja Shankar Tewari and another Vs. H.R.Chakraborty AIR 1990 SC151 it has been held that a person other than a tenant( in that case an employee) in occupation of the building would not be entitled to the benefit of regularisation under Section 14 of the Act. The Supreme Court held that as no rent was paid by the employee in his name he cannot be treated as a tenant. This case was relied upon in Vimal Kishore Paliwal Vs. IVth Addl.District & Sessions Judge, Muzaffarnagar, 2005 UPRCC 198. For these reasons the finding of the trial court that the defendant no.2 is entitled to the protection of Section 14 cannot be sustained.

Section 12(1)(b) of U.P.Act no.13 of 1972 provides that where a tenant has allowed the building to be occupied by any person who is not a member of his family the tenant would be deemed to have ceased to occupy the building. Sri B.N.Asthana submits that this provision applies because the admission made by the defendants in para 25 of the written statement is that since 1974 the defendant no.2 exclusively was carrying on the business in the shop and in case Section 12(1) (b) applies subletting would be deemed under the Explanation (i) of sub-section (2) of Section 25. The question therefore is whether the defendant no.2 was in exclusive occupation of the shop so as to attract Section 12(1) b.

Sri N.C.Rajvanshi counsel for the respondents made two submissions in reply. His first submission is that there is an admission of Daya Ram the plaintiff's witness in his deposition that Ratan Lal continued to be the tenant of the shop. Daya Ram also stated that from the very inception of the tenancy both Ratan Lal and Hari Shankar were carrying on the business and even today Ratan Lal is carrying on business. According to Sri Rajvanshi this is an admission of the fact that Hari Shankar was not in exclusive occupation of the shop. It appears that the statements of the defendant witnesses have not been considered by the trial court. The question whether Hari Shankar is in exclusive occupation is one of fact. It has been held in Laxmi Kishore.Vs.Har Prasad Shukla 1979 AWC 746 that reassessment of evidence is not permissible in a revision under Section 25 of the Provincial of Small Causes Court Act. The matter has therefore to go back to the trial court.

In the result the revision is allowed. The judgement and decree passed by the Judge Small Cause Court dated 15.10.04 is set aside. The trial court is directed to decide the question of sub-tenancy afresh.


cr 388/04


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