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Smt. Vimla Srivastva v. VIIIth ADJ - WRIT - C No. 9740 of 1972  RD-AH 19 (11 May 1999)
?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
+Civil Misc Writ Petition no 9740 of 1972
# Smt Vimla Srivastava
Advocates for Petitioner
^Advocate for Respondent
Hon'ble Yatindra Singh, J.
%Date of Judgment 11.5.1999
1. This is the landlord's writ petition against the order dated 22.05.19821 passed by he VIII ADJ, Allahabad allowing the revision filed by respondent no.22 dismissing the suit filed by the petitioner-landlord.
2. The petitioner-landlord filed a suit after terminating the tenancy of the tenant. The premise in dispute is residential premises. According to landlord-petitioner the respondent no. 2 is his tenant. The rate of rent was Rs. 60/- per month and Rs. 10/- per month for water charges. Petitioner filed a suit after terminating the tenancy on the ground that the tenant-respondent no. 2 has sub-let the premises in dispute to respondent no.3 Sri Babulal son of Ram Bhawan alias Barka and he is in arrears of rent. The Judge, Small Causes Courts, Allahabad by its order dated 05.09.1998 held that the tenant is not in arrears of rent but he has held that the respondent no. 2 has sub-let the premises in dispute to respondent no. 3, as such he decreed the suit for eviction. Aggrieved by his order the tenant-respondent no. 2 filed a revision. The petitioner-landlord also filed a revision. Both the revisions were taken up together. The revision of the landlord is dismissed whereas the revision of the tenant-respondent no. 2 was allowed. It was held that there was no sub-letting. Hence the present petition.
POINTS FOR DETERMINATION
3. The counsel for the petitioner says that Judge Small Causes Court had given a finding that respondent no. 2 has sub-let a part of premises to respondent no. 3. It is finding of fact. It could not be interfered under section 25 of the Provincial Small Causes Act. This is so held by a decision of Division Bench on of this Court reported in Luxmi Kishor vs Har Prasad Shukla, 1981 ARC 545 Counsel for the respondents' say that judgement of Judge Small Cause Court was not in accordance with law. The revisional court rightly interfered with it. The counsel for the respondents further argued that the notice terminating the tenancy was invalid, as it was not mentioned in the notice that respondent no. 2 has sub-let the premises to the respondent no. 3. On the submission of the counsels following points arises for determination.
(i)The finding of subletting recorded by the Judge Small Causes Court Act was a finding of fact. Could it be set aside/interfered in revision under section 25 of the Provincial Small Causes Act.
(ii)Was the notice terminating the tenancy invalid due to the reason that there was no mention that respondent no. 2 has sublet the premises to respondent no. 3.
5. The landlord had come up with the case that Kranti Kumar Khare, respondent no.2, has sublet part of premises to respondent no. 3. The case of Respondent no. 2 was that he has not sub-let the premises in dispute to Babu Lal respondent no. 3, he is merely a domestic servant and is residing in the part of the premises. The possession of the respondent no. 3 was admitted. The trial court considered the oral evidence including the statement of Babulal Respondent no 3(DW-2), the statement of Km. Indira Devi, PW-1 and the statement of Sri Raghu Nandan Prasa (PW-2) an independent witness. Babulal respondent no. 3 himself admitted that he was working in the ''Moonlight Press' where he was getting salary and his office timing is from 9.30 a.m. to 6.30 p.m. He could not stay what pay was given to him by respondent no. 3 for working as domestic servant. At one stage he said that he was given 10 to 20 rupees and then he states only food was given. The Judge Small Causes Court in view of the admitted position that Babulal was in possession and on the basis of the evidence on record held that respondent no. 3 Babu Ram is not the domestic servant of respondent no. 2, but is living as a sub-tenant alongwith Sri Kranti Kumar3. The trial court rightly said that it is not necessary for the landlord to prove what amount of rent is being given by sub-tenant to tenant. The finding recorded by the Judge Small Causes Court is a finding of fact. It was in accordance with law. There is no illegality in the same. It could not be interfered in revision under section 25 of the Provincial Small Causes Court.
2nd Point -WAS NOTICE INVALID?
6. According to the counsel for the tenant, the notice, terminating the tenancy, was invalid, as it was not mentioned in the notice that respondent no. 2 has sub-let the premises to respondent no. 3. The courts below have not dealt with this point. No issue was framed. The Counsel for the respondents could also not point out if such an objection was taken in the written statement or raised in the ground of revision. There is nothing to show that this was ever argued before any Court. The notice terminating the tenancy of the respondent no. 2 has also not been filed by the respondents to substantiate the point. It is neither proper to permit the respondent to raise this question nor there is any merit in it.
7. The writ petition is allowed with costs. The judgement and order dated 22.05.1982 passed by respondent no. 1 is hereby quashed. However, the respondents may not be evicted for a period of six months from today from the premises in dispute provided they file an undertaking in the form of an affidavit within one month it before the concerned Judge Small Causes Court that they will peacefully handover the possession of the premises in dispute within six months and pay the damages at the rate of rent and for the period of their occupation.
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