Over 2 lakh Indian cases. Search powered by Google!

Case Details

SHIO PRASAD versus BANSHI MOHAN AGARWAL AND ANOTHER

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Shio Prasad v. Banshi Mohan Agarwal And Another - WRIT - A No. 47159 of 2006 [2006] RD-AH 15167 (1 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 7

Civil Misc. Writ No. 47159 of 2006

Shio Prasad ... Petitioner

Vs.

Banshi Mohan Agarwal and another    ..       Respondents

Hon'ble Rakesh Tiwari, J

Heard counsel for the parties.

The petitioner is a tenant of shop, in question for the last about 15 years at the rate of Rs. 82.50P per month besides taxes. He claims that his business of manufacturing tin boxes etc., from the said shop is the sole source of livelihood.

In 1996, S.C.C. suit no. 39 of 1996 was instituted by the plaintiff- respondent no. 1 for a decree for ejectment of the petitioner as well as for a decree of recovery of sum of Rs.2227.50P towards rent and damages for use and occupation of the aforesaid shop.  The suit was filed with the allegation that the petitioner-tenant is in arrears of rent and also on the ground that he has sub set the shop to one Sri Munshi Lal.

The suit was contested by the petitioner by filing written statement denying the allegations levelled in the plaint.  Judge, Small Causes Court decreed the suit vide order dated 17.12.2004

Aggrieved  by the judgment and decree dated 17.12.2004 in S.C.C Suit no. 39 of 1996, the petitioner challenged the same in S.C.C. Revision No. 1 of 2005 in the Court of District Judge, Aligarh.  The revision was partly allowed by the respondent no. 2 vide judgment and order dated 10.8.2006 holding that the findings of the trial Court with regard to service of notice are correct.  In so far as issue no. 2 regarding default in payment of rent is concerned, it has been held that it is liable to be allowed for recovery of Rs.2227.50P.  The order of the revisional Court is as under :

" uksfVl ds lEcU/k esaa lk{; o Ik=koyh ij miyC/k lk{; o rF; vkSj ekuuh; mPpre U;k;ky; vkSj ekuuh; mPp U;k;ky; ds uthjksa ds ifj'khyu ds mijkUr eSa bl fu"d"kZ ij igqWprk gwW fd uksfVl dh oS/krk rkehyk ds lEcU/k esa foOnku vf/kuLFk U;k;ky; Onkjk lgh fu"d"kZ fudkyk x;k gS A

tgkW rd fcUnq la[;k 2 izfroknh Onkjk fdjk;s ds lEcU/k esa O;frdze dk iz'u gS foOnku tt [kQhQk usa ;g fu"dk"kZ fudkyk gS fd fnlEcj 97 rd dk fdjk;k 82&50 iSlk izfrekg dh nj ls bl U;k;ky; esa tek fd;k x;k gS mlds ckn ;kuh fnlEcj 97 ds ckn dk fdjk;k tek 'kqnk VsaMj izfroknh Onkjk nkf[ky ugha fd;k x;k gS A okLro esa okn ds VsaMj izfroknh Onkjk izdk'k esa ugha yk;s x;s A bl lanHkZ esa foOnku vf/koDrk fjohtudrkZ dk rdZ gS fd bl lanHkZ esa v/khuLFk U;k;ky; esa tqMhf'k;y uksfVl ysuh pkfg, D;ksfd fjdkMZ fnokuh dpgjh esa gh miyC/k gS A fofnr gks fd U;k;ky; ls ;g visf{kr ugha gS fd og izR;sd U;k;ky; esa yfEcr eqdneksa dh tqMhf'k;y uksfVl ys A fjohtu Lrj ij izfroknh fjohtudrkZ Onkjk fnlEcj 97 ds ckn ds VsaMj QgfjLr 8x o 37 x Onkjk nkf[ky fd;s x;s gS A bu ifjfLFkfr;ksa esa ;g ugha dgk tk ldrk gS fd fjohtudrkZ fdjk;k vnk djus dk fo;dzeh gS A

mijksDr leLr fo"ys"k.k ls Li"V gS fd fjohtu ckcr olwyh #0 2227&50 iSlk Lohdkj gksus ;ksX; gS A 'ks"k vuqrks"k fujLr gksus ;ksX; gS A

                    vkns'k

fjohtu vkaaf'kd #Ik ls Lohdkj fd;k tkrk gS A tt [kQhQk ds fu.kZ; o fMdzh ckcr olwyh # 2227&50 iSls ds fo#) fjohtu Lodkj fd;k tkrk gS A vkSj 'ks"k vuqrks"k ds lEcU/k esa fjohtu lC;; fujLr fd;k tkrk gS A fookfnr nqdkj dks [kkyh djds oknh dks dCtk o n[ky o gtkZ bLrseky ds lEcU?k esa v/khuLFk U;k;ky; Onkjk ikfjr fu.kZ; o fMdzh fnukafdr 17&12&2004 dh iqf"V dh tkrh gS A

fnukad 10&8&2006                 g0 vifBr

                             ( ,l0,l0 yky  )

                                                         vij ftyk tt

                            dksVZ la0 6 vyhx<"

The contention of the counsel for the petitioner is that the Judge Small Causes Court has held that the petitioner was in arrears of rent and suit could not have been proceeded on this ground. Revisional Court has categorically held that the petitioner was not in default, however, the case was liable to be decreed on the ground of subletting by misreading evidence and relying upon and inadmissible evidence recorded a perverse finding. It is submitted that the findings of the Courts below are virtually in defiance of law of Hon'ble Supreme Court for arriving at perverse finding that the premises, in question was sub let by the petitioner to one Sri Rakesh Kumar Agarwal, his nephew.  It is submitted that Sales Tax proceedings and record of a person cannot be relied upon for proving the factum of sub letting.

It is vehemently urged that the plaintiff-respondent no. 1 had, in fact, pleaded the factum of sub-letting of the shop to one Sri Munshi Lal whereas during the course of evidence, the plaintiff-respondent no. 1 has led evidence of sub-letting to Sri Rakesh Kumar Agarwal without there being any pleading to that effect, which have been blindly accepted without application of mind, as such, the impugned orders are wholly unreasonable, arbitrary and illegal.

The crux of the contention of counsel for the petitioner is that case of subletting to Sri Munshi Lal was pleaded against the petitioner whereas documents of Sale Tax etc., filed by the respondent-landlord related to Sri Rakesh Kumar Agarwal, which are neither proved nor admissible in the circumstances as they were insufficient to prove sub-tenancy.  Counsel for the petitioner relied upon paragraph 2 of the decision in Sri Chand Gupta V. Gulzar Singh and another-AIR 1992 SC-123, which is being reproduced below :-

" 2. Sri Nagaraja, learned counsel for the appellant has contended that the High Court has committed a gross error in interfering with the concurrent finding of fact recorded by the Addl. Rent Controller and the Rent Control Tribunal that the tenant, Gulzar Singh has sublet the premises in question to his brother Avtar Singh and that it is not open to the High Court to interfere with the concurrent finding of fact. He placed reliance on Section 18 of the Evidence Act and said that in an affidavit filed by Avtar Singh before Income Tax authorities he claimed exclusive possession as a tenant and that, therefore, the admission made by him would be binding on Gulzar Singh. The Addl. Rent Controller and the Rent Control Tribunal relying upon this admission of Avtar Singh and other oral evidence concluded that Avtar Singh alone was in exclusive possession and that, therefore, subletting was proved as a fact. We find no substance in the contention. Section 18 of the Evidence Act reads as under :-

"18. Admission by a party to proceeding or his agent, by suitor in representative character, by party interested in subject matter, by person from whom interest derived. Statements made by a party to the proceedings or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.

Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statements made by

(1) persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who make the statement in their character of persons so interested, or

(2) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit

are admissions, if they are made during the continuance of the interest of the persons making the statement."

Section 18 postulates that statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards under the circumstances of the case, as expressly or impliedly authorized by him to make them are admissions.  Equally statement made by a person who has any proprietary or pecuniary interest in the subject matter of the proceedings or persons having derivative interest make statements during the continuance of the interest also are admissions.  In this case, admittedly, Gulzar Singh was not a party to the affidavit signed by Avtar Singh. Therefore, the admission made by Avtar Singh that he is the tenant in exclusive possession of the demised premises does not bind Gulzar Singh.  In view of the plea and stand of the appellant, Avtar Singh cannot claim to have any pecuniary interest or any joint interest along with Gulzar Singh in the demised premises.  Once it is found that Gulzar Singh alone is the tenant, as admittedly pleaded by the appellant, Avtar Singh cannot claim to have any pecuniary or derivative interest in the demised premises. He is not an agent of Gulzar Singh. Under these circumstances, , as rightly found by the High Court, that the admission made by Avtar Singh in the affidavit is inadmissible and does not bind Gulzar Singh. Once that admission is excluded from consideration, there is no other evidence worth accepting to conclude that Avtar Singh was in exclusive possession as a tenant. The High Court rightly held that the finding of subletting or parting with possession of the premises in dispute was vitiated in law as it was primarily based on inadmissible evidence.  Having found the finding vitiated, it was open to the High Court to re-examine and re-appreciate the evidence on record. On reappraisal it disbelieved the oral evidence.  We do not find any error in such reappraisal.  It is then sought to be contended that Gulzar Singh had other business and it implies that he is not in exclusive possession of the demised premises. We find no force in the contention.  It may be that Gulzar Singh had other business but that does not lead to the conclusion that Gulzar Singh is not in exclusive possession of the demised premises as tenant or that he sublet the premises to Avtar Singh."

On the basis of aforesaid decision, the counsel for the petitioner submits that the factum of subletting is based upon two vital facts (a) induction of a third person and (b) induction for some consideration.  He also submits that the Courts below have also committed an illegality in considering the Amin's report which was inadmissibleas it was subject to proof by the Commission and which has been accepted by the Courts below by that time. Reference to paragraphs 1,2 and 3 of the plaint has also been made wherein it has been pleaded that :-

"1.   That the defendant was tenant in a shop situated at Ramganj Mandi Aligarh stated at the foot of the plaint at the rate of Rs.82.50 per month besides taxes on behalf of plaintiff.

2. That the defendant was defaulter in terms of payment of rent and rent w.e.f. November 1993 besides water tax from 1.4.87 at the rate of 7% and Sever Tax from 1.4.1987 at the rate of 4% was due which the defendant has not paid to the plaintiff despite his repeated requests and demands.

3. That besides above, the defendant has illegally inducted Munshi Lal in the month of August. 1994 in the demised shop without the written consent of the plaintiff and the defendant is illegally getting benefit from the same."

The contention of Sri M.K. Gupta, counsel for the respondent is that initially in paragraph 2 of the plaint, it was alleged that the petitioner had sub let Sri Munshi Lal. He had died earlier and when the records of the Sales Tax Department on being summoned by the Court were produced, in original, it transpired that the shop was, in fact, sub let to Sri Rakesh Kumar Agarwal son of Sri Munshi Lal @ Rs.82.50P per month. The petitioner Sri Shio Prasad and Sri Munshi Lal were real brothers but a nephew does not fall within the definition of ''family' under U.P. Urban Building (Regulation of Letting, Rent and Eviction Act)1972 (hereinafter referred to as ''the Act'). In the circumstances, even if the name of the sub-tenant may have been incorrectly given in the plaint the factum that the shop was given on rent to a third person or was sub let is proved before the Courts below by documentary and oral evidence of the parties before the Courts below.

Sri Gupta submits that on the basis of pleadings of the parties, the following issues were framed :-

1. Whether notice given by the plaintiff to the defendant is illegal ?

2. Whether the defendant has defaulted in payment of rent and taxex?

3. Whether the defendant has sub-let the shop, in dispute, without permission/approval of the plaintiff?

4. The relief?

It is state that issue no. 1 was decided against the defendant holding that the notice was legally given by the plaintiff to the defendant. As regards issue no. 2, the trial court has held that though the defendant had sent money orders and had submitted rent under Section 30 (1) of the Act from June 1996 to December, 1997 but did not deposit rent after December 1997 as such he has defaulted in payment of rent. In so far as issue no. 3 is concerned, the trial Court held that from the records of the Sales Tax Department as well as letter dated 26.7.1996 issued by Krishi Utpadan Mandi Samiti, Shio Prasad Agarwal son of Sri Rati Ram, the petitioner was working in the shop of Mahi Lal Devi Prasad in shop no. B-27 of Krishi Mandi Samiti.  It was also held that though the petitioner had sub-let the shop to Sri Rakesh Kumar Agarwal on a rent of Rs.82.50 per month without approval or prior permission of the landlord in which Sri Rakesh Kumar Agarwal is carrying on his business in the name and style of ''Agarwal Tin Udyog', he himself was working in the Mandi Samiti. Said shop is also registered under the Sales Tax Act having registration no. 0184343 w.e.f. 18.9.1992.

In support of his contentions, counsel for the respondents has placed reliance on the following decisions :-

1. Jogindar Singh Sodhi V. Amar Kaur (2005)1 SCC-31

2. M/s. Nihal Chand Rameshwar Dass and another V. Vinod Rastogi and others Supreme Court & Full Bench Rent Cases, 1994 -270

3. Gur Dayal Khanna and others v. Smt. Malti Devi and others 1992 ARC(2)-456

4. Sri Chand Gupta (supra).

CONCLUSIONS:

From the averments made in the writ petition and the grounds taken therein it appears that petitioner has challenged the order of Courts below on the ground of sub-letting. The counsel for the petitioner has advanced arguments in this respect only. Therefore, the only question before this Court is whether the Courts below have committed any illegality or any error on face of record with regard to sub-letting.

  From the statements of the parties given before the Courts below and appended as annexures to the writ petition, it appears that the fact that Sri Munshi Lal had died came to the knowledge of the plaintiff-respondent after he had filed the plaint in the suit. The petitioner had not taken prior consent or approval of the landlord before subletting the shop to his nephew Sri Rakesh Kumar Agarwal in 1994. It is also evident from record that the petitioner had defaulted in payment of rent.

From the records, it is evident that Sri Shio Prasad Agarwal, the petitioner is real uncle of Sri Rakesh Kumar Agarwal who is running his business from the disputed shop registered in Sales Tax Department in the name of M/S. Agarwal Tin Udyog given on rent to him by the landlord to Sri Shio Prasad Agarwal. In the plaint, in respect of sub tenancy and default in payment of rent, it is averred that the petitioner was defaulter in terms of payment of rent and rent w.e.f. November, 1993 besides water tax from 1.4.87 at the rate of 4% was due which the petitioner did not pay to the respondent-landlord despite repeated requests and demands. That apart, the petitioner had illegally included Munshi Lal in the month of August, 1994 in the demised shop without the written consent of the respondent-landlord and the pletitioner was illegally getting benefit from the same, which was denied by the petitioner. On coming to know about the factum of sub-tenancy, the landlord gave notice to the tenant-petitionre which has been found to be legal and valid by the Courts below.

` During the pendency of S.C.C Suit no. 39 of 1996, another suit no. 404 of 2000 was filed. It appears that the petitioner had collected building materials for construction of basement etc., in the disputed shop, which was opposed by the landlord but since the petitioner and his nephew were adamant, he had to file suit no. 404 of 2003. The Amin appointed had inspected the premises in pursuance of the orders of the Court and had filed his report. The identity of the shop of the petitioner in which Sri Rakesh Kumar Agarwal is doing his business is established from the boundaries mentioned in the foot of the plaint, records of the Sales Tax Department produced before the Courts below, Amin's report as well as from the affidavit given by Sri Rakesh Kumar Agarwal in which his photograph is also affixed. Finding in this regard is as under :-

"&&& blh nqdku esa ftlesa izfroknh ';ks izlkn fdjk;snkj gS jkds'k dqekj iq= eqU'khyky us lsYl VsDl foHkkx dh Ik=koyh esa dkxt la0 8 O;kikj djus ds LFkku ds lEcU/k esa nkf[ky fd;k x;k gS A blls ;g rF; Li"V gS fd jkds'k dqekj iq= eqU'khyky ftlus vxzoky fVu m/kksx ds uke ls lsYl VSDl foHkkx esa jftLVZzs'ku djk j[kk gS og blh nqdku esa C;kikj dj jgk gS ftlesa ';ksizlkn fdjk;snkj Fks A jkds'k dqekj us tks 'kiFk Ik= ij c;ku lsYl VSDl foHkkx esa fn;k gS ftldh izfr bl okn esa Hkh nkf[ky gS] blls Hkh ;g rF; Li"V gS fd jkds'k dqekj iq= eqU'kh yky blh nqdku esa vxzoky fVu m/kksx ds uke ls dk;Z dj jgs gSaA"

In so far as issue no. 1 is concerned, the finding is that the notice was sent to the petitioner at his correct address and has been received by him and as it has been served on him, the issue was decided against the petitioner.  It is as under :-

" &&&&oknh Onkjk izLrqr okn esa izfroknh dks lgh irs ij uksfVl Hksts x;s vkSj ikorh Ik= ij izfroknh ';kss izlkn ds gLrk{kj gSa A blls ;g ugha dgk tk ldrk fd izfroknh ij uksfVl dh rkehy ugha gqbZ A cfYd izfroknh ij uksfVl dh fof?kor rkehy gqbZ vkSj oknh Onkjk izfroknh dks fof/kd uksfVl fn;k x;k A vr% ;g fcUnq izfroknh ds fo#) ,oa oknh ds Ik{k esa fuf.kZr fd;k tkrk gSA "

  It is evident that the notice was served on the defendant which had been returned after service on the defendant.

As regards issue no. 2, the trial Court has returned a finding of fact that from the receipts, paper nos. 113-C, 44-V and 45-C, it is proved that the rent of the shop was Rs.75 per month excluding Rs.7.50 as water tax (total Rs.82.50P per month) and that the petitioner had defaulted in payment of rent from December, 1997. The finding in this regard by the trial Court is as under :-

"&&&&izfroknh usa ?kkjk 30(1 ) ;w0ih0 ;w0ch0 ,DV 13@1972 ds vUrxZr Hkh fdjk;k tek fd;k x;k A izLrqr okn esa okn dh izFke lquokbZ dh frfFk ls iwoZ izfroknh usa ?kkjk 20 (4 ) ;w0ih0 ;w0ch0 ,DV 13@1972 ds vUrZxr dqy 3700@& #0 ekg twu 1996 rd fdjk;k] C;kt o [kpkZ eqdnek tek fd;k rFkk izfroknh Onkjk nkf[ky dkxt la0 16x yxk;r 24x ls fnlEcj 1997 rd dk fdjk;k eq0 82&50 #0 izfrekg dh nj ls bl U;k;ky; esa tek fd;k x;k ijUrq mls ckn ;kfu fnlEcj 1997 ds ckn ds fdjk;k tek 'kqnk Vs.Mj izfroknh Onkjk nkf[ky ugha fd;k x;k gS A bl izdkj izfroknh Onkjk vkns'k 15 fu;e 5 lh0ih0lh0 dk fu;fer vuqikyu ugha fd;k x;k gS vkSj ;g fdjk;k tek djus dk O;frdzeh jgk A vr% ;g fcUnq oknh ds Ik{k esa fo#) izfroknh fuf.kZr fd;k tkrk gS A"

While deciding issue no. 3, the trial Court has considered all the pleas which have been raised before this Court in the present writ petition. The finding of the J.S.C. Court on issue no. 3 is as under ;-

"19.   oknh Onkjk dkxt la[;k 100 x@2 ] 101 x@2 ] 101@3] 102@x] 102 x@35 Ik= nkf[ky fd;s x;s gSa A ;s izi= jkds'k dqkekj iq= eqW'kh yky Onkjk lsYl VSDl foHkkx esa jftLVZzs'ku djkus ls lacaf/kr gS rFkk ftldh ewy Ik=koyh Hkh lsYl VSDl foHkkx ls ryc dh xbZ gs ftlds vuqlkj jkds'k dqekj us viuk vxzoky fVu m/kksx ds uke ls jftLVzs'ku djk;k ftldk jftLVzs'ku 0&184343 gZS tks fnukad 8-9-92 ls izHkkoh gS vkSj jkds'k dqekj usa ;g c;ku fn;k fd o"kZ 1992 ls mUgksus cD'kk dqfV;k]dwyj ckMh vkfn cukus dk dk;Z fd;k vkSj dk;ZLFky fdjk;s ij eq0 82-50@&# gksuk crk;k ftldk ekfyd ';ke izlkn iq= jfr jke dks crk;k vkSj ;g Hkh crk;k fd ';ks izlkn iq= jfrjke muds pkpk gS A jkds'k dqekj tks fd eqW'kh yky ds ia= gSa vkSj izfroknh ';ks izlkn ds Hkrhts gSa] bUgksus lsYl VSDl foHkkx ds fdjk;s dh j'khn nkf[ky dh tks bl Ik=koyh esa layXu gS A izfroknh dh vksj ls tks j'khnsa bl okn esa nkf[ky dh xbZ gSa og ca'kheksgu vxzoky Onkjk tkjh dh xbZ gSa ftlesa fdjk;snkj ';ks izlkn nqdku 2 ux] fdjk;k 82-50 #0 n'kkZ;k x;k gS ftl ij izfroknh ';ks izlkn fdjk;snkj gSa jkds'k dqekj iq= eaWq'kh yky lsYl VSDl foHkkx dh Ik=koyh esa dkxt la[;k 8 C;kikj djus ds LFkku ds laca/k esa nkf[ky fd;k x;k gS A blls ;g rF; Li"V gS fd jkds'k dqekj iq= eqW'kh yky ftlusa vxzoky fVu mk/kksx ds uke ls lsYl VSDl foHkkx esa jftLVzs'ku djk j[kk gS A og blh nqdku esa C;kikj dj jgk gS ftlesa ';ks izlkn fdjk;snkj Fks A jkds'k dqekj usa tks 'kiFk ij c;ku lsYl VSDl foHkkx esa fn;k gS ftldh izfr bl okn esa Hkh nkf[ky gS] blls Hkh ;g rF; Li"V gS fd jkds'k dqekj iq= eqW'kh yky blh nqdku esa vxzoky fVu m?kksx ds uke ls dk;Z dj jgs gSa A

20. nkSjku cgl izfroknh ds foOnku vf/koDrk Onkjk ;g rdZ izLrqr fd;k x;k fd oknh usa eqW'kyky dks tkyh fdjk;snkj crk;k vkSj izi= jkds'k dqekj ds nkf[ky fd;s gSa A ijUrq muds bl rdZ esa dksbZ cy ugha gS D;ksafd jkds'k dqekj] eqW'kyky dk gh iq= gS vkSj izfroknh usa Hkh c;ku esa Lohdkj fd;k gS fd eqwW'kyky ds nsgkUr 6&7 lky igys gks x;k gS A vkSj ;g Hkh Lohdkj fd;k gS fd jkds'k dqekj] eqW'kh yky ds gh iq= gSa A

21. nkSjku cgl izfroknh ds foOnku vf/koDrk ua ;g rdZ izLrqr fd;k gS fd fdlh Hkh mifLFkfr ek= ls lcysfVax ugha ekuk tk;sxk vkSj vius rdZ ds leFkZu esa fu.kZ; fof?k ,-vkbZ-vkj 1984 lqfize dksVZ 1447 txnh'k izlkn cuke Jherh vaxxjh nsoh izLrqr dh xbZ gS ftlesa ;g vfHkfuZ/kkfjr fd;k x;k gS fd ek= fdlh O;fDr dh mifLFkfr ls lcysfVax ugha ekuk tk;sxk A ysfdu mijksDr fu.kZ; fof/k bl okn esa ykxw ugha gS D;ksafd eqW'khyky ds iq= jkds'k dqekj fookfnr nqdku esa fof?kor vxzoky fVu m/kksx ds uke ls C;kikj dj jgk gS ftUgksus lsYl VSDl foHkkx esa O;kikj dk jftLVzs'ku Hkh djk j[kk gS vkSj izfroknh ';ks izlkn eaMh lfefr ds nqdku ua0 ch@27 esa dke djrs gSa A

22. izfroknh ds foOnku vf?koDrk Onkjk fu.kZ; fof/k ,-vkbZ-vkj 1999 lqfize dksVZ 3087 js'ke flag cuke j?kqohj flag izLrqr dh xbZ gS ftlesa ;g izfrikfnr fd;k x;k gS fd ;fn fdjk;snkj fdlh vijkf/kd dk;Zokgh esa Qjkj py jgk gks vkSj og vius HkkbZ dks nqdku ns[kus ds fy, vf/kd`r fd;k gks rks ml ifjfLFkfr esa lc ysfVax ugha ekuh tk;sxhA izLrqr okn esa mijksDr fu.kZ; fof/k Hkh ykxw ugha gS D;ksafd blesa rF; ,oa ifjffLFkr fHkUu gSa A

23. oknh dh vksj ls ewy okn la[;k 404@2003 ca'kheksgu cuke ';ks izlkn dh vehu fjiksVZ Hkh nkf[ky dh xbZ gS A ;g fjiksVZ Hkh fookfnr nqdku ds laca/k esa gS ftlesa jkds'k dqekj tks fd izfroknh nqdku ds laca/k esa gS ftlesa jkds'k dqekj tks fd izfroknh ';ks izlkn ds Hkrhtsa gSa coDr eqvkbuk cD'ks]vfd;k vkfn dk dkjksckj djrs ik;s x;s A bl ij izfroknh ds foOnku vf/koDrk Onkjk ;g rdZ izLrqr fd;k x;k gS fd vehu fjiksVZ U;k;ky; Onkjk iqf"V ugha dh xbZ gS] blfy, ;g lk{; esa Ik<sa tkusa ;ksX; ugha gS ysfdu ;ksX; vf/koDrk ds bl rdZ esa dksbZ cy ugha gS D;ksfd jkds'k dqekj tks fd izfroknh ';ks izlkn dk Hkrhtk gS vkSj eqW'kyky dk iq= gS] mUgksus vxzoky fVu m/kksx ds uke ls lsYl VSDl foHkkx esa jftLVzs'ku djk;k gS vkSj fookfnr nqdku esa viuk C;kikj djuk Hkh fn[kyk;k gS vkSj og fookfnr nqdku esa vxzoky fVu m/kksx ds uke ls C;kikj dj jgs gSa rFkk oknh ds bl dFku dh iqf"V vehu fjiksVZ lsYl VSDl foHkkx ds izi= vkfn ls gksrh gS A bl izdkj Onkjk oknh Onkjk nkf[kr nLrkosth ,oa ekSf[kd lk{; ls ;g rF; iw.kZr% lkfcr gS fd fookfnr nqdku ftlesa izfroknh ';ks izlkn fdjk;snkj Fks] ftldk fdjk;k 82-50# izfrekg gS ] eSa jkds'k dqekj tks fd izfroknh ';ks izlkn dk Hkrhtk gS vkSj og eqW'khyky dk iq= gS vxzoky fVu m/kksx ds uke ls C;kikj dj jgk gS ftldh dksbZ Hkh lgefr oknh ls izfroknh Onkjk ugha dh xbZ A

24. nkSjku  cgl izfroknh ds foOnku vf/koDrk usa ;g rdZ izLrqr fd;k fd oknh dks ;g lkfcr djuk IkMasxk fd izfroknh voS/k ykHk ys jgk gS ftl ij izfroknh ds foOnku vf/koDrk dk dFku gS fd ,slk dksbZ dFku oknh Onkjk lkfcr ugha fd;k x;k gS ysfdu izfroknh ds lq;ksX; vf?koDrk ds bl rdZ esa dksbZ cy ugha gS D;ksafd izfroknh fdjk;snkj ,oa tkyh fdjk;snkj dk ;g ykHk izkIr djus dk xqIr le>kSrk gS A izfroknh usa fcuk oknh dh vuqefr ds fookfnr nqdku jkds'k dqekj iq= eqW'kh yky dks tkyh fdjk;s ij mBk nh ftlesa jkds'k dqekj vxzoky fVu m/kksx ds uke ls C;kikj dj jgk gS ftlusa lsYl VSDl foHkkx esa jftLVzs'ku Hkh djk;k gS ftldk jftLVzs'ku ua- 0184343 gS tks fnukad 18-9-92 ls izHkkoh gS A bl izdkj ;g rF; lkfcr gS fd izfroknh ';ks izlkn usa fcuk ekfyd ds vuqefr ds voS?kkfud rkSj ij fookfnr nqdku jkds'k dqekj iq= eqW'kh yky dh tkyh fdjk;s ij ns nh ftlesa jkds'k dqekj  vzxzoky fVu m/kksx ds uke ls C;kikj dj jgk gS A izfroknh Loa; ,xzh lfefr esa dk;Z djrk gS vr% ;g okn fcUnq oknh ds Ik{k esa fuf.kZr fd;k tkrk gS A

25. fookn;d fcUnq la- 1 yxk;kr 3 oknh ds Ik{k esa fuf.kZr fd;s x;s gSa blfy, oknh pkgs x;s vuqrks"k dks izkIr djus dk vf/kdkjh gS vr^% ;g fcUnq rnuqlkj fuf.kZr fd;k tkrk gS A

26. mijksDr foospuk dk fu"d"kZ ;g gS fd oknh dk okn lC;; vkKIr gksus ;ksX; gS A"

                        vkns'k

oknh dk okn izfroknh ds fo#) eqcfyx 2227&50@& cdk;s dh olwyh ,oa fookfnr nqdku ls csn[kyh ds fy, lC;; vkKIr fd;k tkrk gS A izfroknh dks vknsf'kr fd;k tkrk gS fd og vkt ls 30 fnu ds vUnj fookfnr nqdku ftldh lhek;sa okn Ik= ds vUr esa of.kZr gS dks [kkyh djds dCtk o n[ky oknh dks lqiqnZ dj ns A oknh okLrfod dCtk izkIr djus dh frfFk rd eqc0 82&50@& #0 izfrekg dh nj ls gtkZ bLrseky Hkh izkZIr djus dk vf/kdkjh gS A

                                       g0 vifBRk

                                     (,e0,l0 oekZ)

                                  y?kq okn U;k;k/kh'k

                                     vyhx<"

The revisional Court though has not found the petitioner in arrears of rent but has upheld the findings of the trial Court in suit regarding sub-letting by the petitioner.  In the revision, only the findings of the Trial Court regarding sub-tenancy were assailed, however, from the written statement of the registration proceeding under the Sales Tax Act filed as Annexure 7 to the writ petition, it is evident that Sri Rakesh Kumar Agarwal the sub tenant had given his address of the same shop where he started his business in the name and style of M/s. Agarwal Tin Udyog w.e.f. 16.9.1999 showing that his first date of sale and purchase is 6.10.1992. He has also given in the column of name and address of the proprietor in the aforesaid written statement as under :-

"2. Name and address    Rakesh Kumar Agarwal s/o Sri Munshi

    of the prop.                Lal Agrawal r/o Ram Ganj, Aligarh."  

A perusal of the report of the Amin, Annexure 9 to the writ petition, reveals that Sri Rakesh Kumar Agarwal, sub tenant stated before Amin that he is nephew of Sri Shio Kumar Agarwal, petitioner. The disputed accommodation was inspected by the Amin wherein he had found that Sri Rakesh Kumar Agarwal, nephew was doing the business of sale of boxes, tank etc.  It is also apparent from the letter dated 26.7.96 that Sri Shio Prasad was, in fact, not doing any business from the shop in dispute and was employed in shop no. B-27 of Mahi Lal and Devi Prasad, Krishi Utpadan Mandi Samiti, Aligarh.

The contention of counsel for the petitioner that though sub-tenancy is said to be in favour of Sri Munshi Lal Agarwal, but in fact, papers have been

filed in respect of Sri Rakesh Kumar Agarwal has been considered by the trial Court in paragraph 20 of the order rejecting the contention of the petitioner. The trial Court has held that because Sri Rakesh Kumar Agarwal is son of Sri Munshi Lal who is no more, hence there is no force in the contention of the counsel for the defendant.

To my mind because factum of death of the brother of the petitioner and father of Sri Rakesh Kumar was not in the knowledge of the respondent-landlord, hence it cannot be said that the sub tenancy had been claimed against a wrong person. What has to be seen in regard to factum of sub-tenancy is whether the shop had been let out to a third person who does not come within the definition of ''family' as defined under the Act on some consideration. Both these factors are found in the instant case.  Sri Rakesh Kumar Agarwal is third person who does not fall within the definition of ''family' of Shio Prasad being his nephew and he pays Rs.882.50P as rent to him. Apart from the fact that Sri Shio Prasad is working in shop no. B-27 Krishi Utpadan Mandi Samiti, Aligarh he may be taking commission on sales from the sale of goods in the shop cannot be ruled out as he also does the same business in one of the rooms of the shop being looked after by Sri Rakesh Kumar, his nephew.

The trial Court has categorically recorded a finding in this regard that there was a secret agreement between the nephew and the uncle.

Sub tenancy is difficult to prove and is mostly dependent upon circumstantial evidence. Presence of Sri Rakesh Kumar Agarwal in the shop is not a coincident as whole circumstantial evidence is to be looked into. Sri Rakesh Kumar Agarwal is doing business from the disputed shop in the name and style of M/s Agarwal Tin Udyog is proved from catena of documents. It is also proved from records that he pays rent to his uncle Sri Sheo Prasad , the petitioner as such, it would amount to sub-letting of the shop to him by Sri Sheo Prasad.

The decision in Sri Chand Gupta (supra) relied upon by counsel for the petitioner is not applicable to the facts and circumstance of the instant case as in that case, the Hon'ble Supreme Court was considering what is admission in regard to Section 18 of the Evidence Act.  In that backdrop, the Hon'ble Supreme  Court held statements made by persons who have any proprietary or pecuniary interest in the subject matter of the proceeding and who make the statement in their character of persons so interested or persons from whom the parties to the suit have derived their interest in the subject matter of suit are admissions, if they are made by a part to the proceeding or by an agent to any such party, whom the Court regards under the circumstances of the case, as expressly or impliedly authorized by him to make them are admissions. In that case Gulzar Singh was not a party to the affidavit signed by Avtar Singh, therefore, the admission made by Avtar Singh that he was the tenant in exclusive possession of the demised premises, did not bind Gulzar Singh. The Hon'ble Apex Court further held that in view of the plea and stand of the appellant of that case, Avtar Singh could not claim to have any pecuniary interest or any joint interest along with Gulzar Singh in the demised premises. In the peculiar facts and circumstances of that case, Hon'ble the Supreme Court found that it was rightly held by the High Court that the admission made by Avtar Singh in the affidavit was anadmissible and did not bind Gulzar Singh.  In the instant case, Amin had no pecuniary or any other interest in the matter.  He had inspected the shop in dispute under the orders of the Court in Suit no.404 of 2003.

As regards the decision in Jogindar Singh Sodhi (supra) relied upon by counsel for the respondents is concerned, in that case the landlady had filed an eviction petition under Section 13 of the E.P. Urban Rent Restriction Act, 1949 seeking eviction of the tenant from the shop, in question on the grounds of non-payment of rent having been not pressed by the landlady and sub-letting. It was held that proof of payment of monetary consideration is not a sine qua non to establish subletting and burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to a third party, onus would shift on the tenant.  In M/s. Nihal Chand Rameshwar Dass and another (supra) the sub-tenant was in possession with the consent of the landlord and, therefore, the Hon'ble Apex Court held that concurrent finding of fact, based on proper appreciation of evidence cannot be disturbed in appeal.  It was also held that on non-disclosure of consideration for sub-letting by the tenant, inference would be drawn that it was for monetary consideration. In Gur Dayal Khanna and others (supra) on the question of sub-letting by tenant, burdent of proof was held to be on landlord, and it was held that the burdent of proof stands satisfied when he proves that premises is in occupatio of some one else other than the tenant who is neithr family member of tenatnt nor partner.

The documents of Sales Tax Department as well as Amin's report are public documents kept in normal course of business and need no formal proof by oral evidence.

The Court had also summoned the original records and the Amin had submitted report after inspection of the shop in the presence of both the parties, i.e. landlord and the tenant, therefore, the report of the Amin cannot be brushed aside easily saying that it is inadmissible document in evidence. The finding of fact regarding sub-letting by the trial Court is as under :-

"    oknh dh vksj ls ewy okn la0 404@2003 cU'kh eksgu cuke ';ks izlkn dh vehu fjiksVZ Hkh nkf[ky dh x;h gS A ;g fjiksVZ Hkh fookfnr nqdku ds lEcU/k esa gS ftlesa jkds'k dqekj tks fd izfroknh nqdku ds lEcU/k esa gS ftlesa jkds'k dqekj tks fd iazfroknh ';ks izlkn ds Hkrhts gSa okoDr eqvkbuk cDls]vfd;k vkfn dk dkjksckj djrs ik;s x;s A bl ij izfroknh ds foOnku vf/koDrk Onkjk ;g rdZ izLraqr fd;k x;k fd ;g vehu fjiksVZ U;k;ky; Onkjk iqf"V ugha dh xbZ gS blfy, ;g lk{; esa Ik<s tkus ;ksX; ugha gS ysfdu ;ksX; vf/koDrk ds bl rdZ esa dksbZ cy ugha gS D;ksfd jkds'k dqekj tks fd izfroknhs ';ksizlkn dk Hkrhtk gS vkSj eqU'khyky dk iq= gS mUgksus vxzoky fVu m/kksx ds uke ls lsYl VSDl foHkkx esa jftLVzs'ku djk;k gS vkSj fookfnr nqdku esa viuk C;kikj djuk Hkh fn[kyk;k gS vkSj og fookfnr nqdku esa vxzoky fVu m/kksx ds uke ls C;kikj dj jgs gSa rFkk oknh ds bl dFku dh iqf"V vehu fjiksVZ lsYl VSDl foHkkx ds izi= vkfn ls gksrh gS A bl izdkj oknh Onkjk nkf[ky nLrkosth ,oa ekSf[kd lk{; ls ;g rF; iw.kZr% lkfcr gS fd fookfnr nqdku ftlesa izfroknh ';ksizlkn fdjk;snkj Fks ftldk fdjk;k 82&50 #- izfrekg gS] esa jkds'k dqekj tks fd izfroknh ';ks izlkn dk Hkrhtk gS vkSj eqU'kh yky dk iq= gS] vxzoky fVu m/kksx ds uke ls C;kikj dj jgk gS ftldh dksbZ Hkh lgefr oknh ls izfroknh Onkjk ugha yh x;hZ A"

From the perusal of the affidavit of Sri Rakesh Kumar Agarwal, it is evident that he was paying Rs.82.50P as rent to his uncle. Considering the arguments of counsel for the petitioner and perusal of record appended with the writ petition, I am of the view that the petitioner has totally failed to establish that he had not sub let the shop in dispute to Sri Rakesh Kumar Agarwal for running his business in the name and style of M/s. Agarwal Tin Udyog.  He was also in arrears of rent as has been found by the Courts below.

I do not find any illegality or infirmity in the impugned orders passed by the Courts below calling for interference in the writ jurisdiction.

The writ petition is dismissed. No order as to costs.

Dated 1.9.2006

kkb


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.