Allahabad High Court
Lala Ghanshyam Dass vs Ist.A.D.J.& Others on 29 July, 2010
Author: Devendra Pratap Singh
Bench: Devendra Pratap Singh
Court No. 7 A.F.R. Case : WRIT A No. 22791 of 1996 Petitioner : Lala Ghanshyam Dass Respondent : Ist.A.D.J.& Others Petitioner Counsel : P.K.Jain,A. Agarwal Respondent Counsel : C.S.C.,A.C. Srivastava,R.K. Pandey,S.K. Shukla,Shailendra Singh Hon'ble Devendra Pratap Singh,J.
1. Heard Sri Pamarty Venkataramana, learned counsel for the petitioner and learned counsel for the respondents.
2. This petition by the landlord is directed against a revisional order dated 22.5.1996 setting aside the eviction order of the trial court and dismissing petitioner's suit for eviction.
3. Necessary facts, shorn of details, for the decision of this petition, are that the petitioner landlord instituted a SCC Suit No. 17 of 1991 against the respondent nos.2 and 3 with the allegation that respondent no.2 was a tenant of the disputed shop at Rs.37.50p. per month and apart from being a defaulter had also sub let it to his brother respondent no.3 without the consent in writing of the landlord and therefore was liable for eviction in view of Section 20 (2) (e) of U.P. Act No. 13 of 1972 (hereinafter referred to as the 'Act'). The tenant respondent contested the suit inter alia on the ground that a Hindu Undivided Family was the tenant of which both the respondents were its member but in 1956 the respondent no.2 started another business in another shop leaving respondent no.3 to carry on the original business, thus there was no sub tenancy and there was in fact no default in payment of rent.
4. After exchange of pleadings, the trial court framed as many as 17 points for determination including on the question of landlord tenant relationship, default and sub tenancy. After the parties led their evidence, it went on to hold that since entire amount had been deposited, the tenant was entitled to the benefit of Section 20 (4) of the Act so far as default is concerned. On the question of sub tenancy, it held that respondent no.2 was the tenant and not the Hindu Undivided Family and he had allowed the shop to be occupied by respondent no.3 who was not a member of his family and therefore 2 in view of Explanation to Section 25 of the Act, it was a case of deemed sub tenancy and thus decreed the suit. The revisional court reversed the decree holding that there was no proof of consideration or rent being paid to respondent no.2 by respondent no.3 and the legal fiction under Section 12 of the Act was confined for purposes of vacancy and that since legal possession remained with the respondent no.2, there was no sub tenancy.
5. It is urged on behalf of the petitioner that once the tenant has ceased to occupy the building under Section 12 (1)(b), it would be a case of deemed sub tenancy in view of Explanation to Section 25 as held by the trial court and passing of consideration for sub tenancy or legal possession would be immaterial under the Act.
6. The revisional court has not set aside the finding of the trial court that respondent no.2 was the tenant and not the Hindu Undivided Family and that respondent no.3 was not a member of the tenant's family, therefore, the Court proceeds on that basis.
7. A suit for eviction against a tenant under the Act can be instituted on various grounds mentioned in Section 20 thereof. Eviction can be sought on the ground of sub tenancy under sub Section (2)(e), which reads as under :
"20. Bar of suit for eviction of tenant except on specified grounds (1)...........
(2)A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
(a).........
(b)........
(c).........
(d).........
(e) that the tenant has sublet, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building;
(f)........
(g)........"3
8. Thus a suit for eviction of a tenant can be filed after determination of his tenancy if he has sub let the building in contravention of provisions of Section 25 of the Act or the old Act, as the case may be. Section 25 prohibits sub letting in the following words :
"25. Prohibition of subletting - (1) No tenant shall sublet the whole of the building under his tenancy.
(2) ......................
Explanation For the purposes of this section
(i) where the tenant ceases, within the meaning of clause
(b) of subsection (1) or subsection (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sublet that building or part ;
(ii) ................"
9. The Explanation creates a legal fiction of sub tenancy where the tenant ceases to occupy a building or part thereof within the meaning of Section 12 (1)(b) or sub Section (2) of the Act. Section 12, which deals with deemed vacancy of buildings, provides as under:
"12. Deemed vacancy of building in certain cases. (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if
(a) he has substantially removed the effects therefrom, or
(b) he has allowed it to be occupied by any person who is not a member or his family, or
(c) ..........
(2) ...........
(3) ...........
(3A) .......
(3B) .......
(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of subsection (1), or sub section (2) (subsection (3), subsection (3A) or subsection (3 B) shall, for the purposes of this Chapter, be deemed to be vacant.
(5) ........."
410. Thus in views of Section 12 (1)(b), if a tenant allows a person who is not a member of his family, to occupy the building, the building shall be deemed to be vacant in view of sub Section (4). The definition of 'family' is provided in Section 3(g) as follows :
"3(i) "Family", in relation to a landlord or tenant of a building, means, his or her
(i) spouse;
(ii)male lineal descendants;
(iii)such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant,
(iv) as may have been normally, residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building."
11. Now the Court may examine the facts as found proved before the courts below.
12. Both the courts below have found that defendant no.1 was the tenant and he used to pay the rent and receipt was also issued in his name. It is also admitted by the defendant no.1 and found by the court below that he has shifted to another shop and doing another business and the defendant no.2 is utilising the disputed shop and doing his own independent business. It is also undisputed that he is not a member of the family of the tenant as defined under the Act. If that is so, clearly it would be case of deemed subtenancy in view of the Explanation to Section 25 read with Section 12 (1)(b) of the Act. The Apex Court in the case of Harish Tandon vs. Addl. District Magistrate [1995 ARC (1) 270] was confronted with similar facts where a soninlaw was inducted as a partner, noticing the provision of Section 25 and Section 12 of the Act has held in para 7 as follows :
"In view of Explanation (i) of Section 25, where the tenant is deemed to have ceased to occupy the building under subsection (2) of Section 12 aforesaid, he shall be deemed to have sublet that building or part thereof. Once a tenant carrying on business 5 in a nonresidential building, admits a person who is not a member of his family as a partner, the said tenant shall be deemed to have ceased to occupy the building and by operation of the Explanation (i) of Section 25, it shall be deemed that such tenant has sublet that building or part thereof, which shall be a ground for eviction of such tenant because of Section 20 (2)(e) which specifically says that a suit for eviction of a tenant from building after determination of his tenancy may be instituted on the ground "that the tenant has sublet, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building."
In view of such deemed subtenancy, there was no need for the landlord to prove that defendant no.2 was paying any rent to defendant no.1 and the concept of 'legal possession' was also immaterial.
13. For the reasons above, this petition succeeds and is allowed, the revisional order dated 22.5.1996 is set aside and that of the trial court is restored.
14. In the circumstances of the case, no order as to costs.
Order Date : 29.7.2010 PKG