Mayawati v. Dharam Pal Sharma — 1976 DIGILAW 623 (ALL)

JUDGMENT M.P. Mehrotra, J. This is a plaintiff's second appeal arising out of a suit for eviction and for arrears of rent and mesne profits which was filed by the plaintiff claiming to be the landlord of the suit accommodation. The defendant No. 1 Hukum Chand was said to be the tenant and the defendant no. 2 was said to be the subtenant. The ejectment was sought 1976 (2) Smt: Mayawati v. D. P. Sharma (Alld. B.C.) 735 on the ground of illegal subletting and wilful G. fault in the payment of arrears of rent despite notice. The tenancy was determined by the notice under section 106 of the Transfer of Property Act and thereafter the suit was filed. It may be stated that the accommodation in dispute is situated in the contonment area of Meerut and, therefore, U. P. Act. No. 10 of 1952 governs the case. The brief facts are these: Defendant No. 1 Dharam Pal was the tenant of the plaintiff Smt. Mayawati in the lower a story of house no. 209 Dholki Mohalla/'Meerut Cantt. The monthly rent payable by the defendant was Rs. 17/ Rent fell due for the period commencing from 1st December 1964 and, therefore, a notice was sent to the tenant (defendant no. 1) which was served on 5th February, 1965. The tenancy was also determined by the same notice. It was further alleged that the defendant no. 1 illegally sublet the accommodation in dispute to his brother Hukum Chand who is the defendant no. 2 The defendants did not vacate the accommodation even on the expiry of the notice period and, therefore, the plaintiff sued for the eviction of the defendants for the suit accommodation and for recovery of Rs. 55/ as arrears of rent, Rs. 14/ as past mesne profits and for pendente lite and future mesne profits at the rate of Rs. 25/per month. The two defendants entered defence and filed separate written statements. Dharam Pal, defendant no. 1 contended that initially about 24 or 25 years back he and his brother, the defendant no. 2, took the disputed accommodation on a monthly rent of Rs. 3.50 from the motherinlaw of the plaintiff. Both the defendants are real brothers. Rest receipts were mostly issued in the name of defendant no. 1 although they were occasionally issued in the name of defendant no. 2 and his wife. Hence the defendant no. 2, took the disputed accommodation on a monthly rent of Rs. 3.50 from the motherinlaw of the plaintiff. Both the defendants are real brothers. Rest receipts were mostly issued in the name of defendant no. 1 although they were occasionally issued in the name of defendant no. 2 and his wife. Hence the defendant no. 2 was rot the subtenant. The defendant no. 1 shifted to village Pengha and as the landlady was not on good terms with the defendants, the defendant no. 2, in the circumstances, was advised to have the house allotted in his favour from the Station Staff Officer, Meerut. The house was later on allotted in the name of defendant no: 2 regularising his exclusive occupation after the departure of the defendant no. 1 to village Peghna and thus with effect from 21st December, 1964, the defendant no. 2 became the exclusive tenant of the plaintiff. The defendant no. 1 further alleged that the amount of rent due was remitted through Money Order which the plaintiff deliberately refused to receive. Thus there was no default in payment of arrears of rent. According to the defendant no. 1 there was no question of the determination of tenancy as he had already ceased to be a tenant of the disputed accommodation and the defendant no. 2 alone was the tenant of the plaintiff. The defendant no. 2 Hukum Chand alleged that the tenancy of his elder brother Dharam Pal was for the benefit of the whole family including Hukum Chand, his wife and children. The other pleas taken up by the defendant no. 1 were also supported by this defendant. He claimed that he was a tenant in his own right by virtue of the allotment order from the Station Staff Officer, Meerut. The trial court framed the following issues: 1. Whether the defendant no. 1 has committed wilful default in payment of arrears of rent? If so, its effect? 2. Whether the defendant no. 1 has sublet the suit promised to the defendant no. 2 or, whether the defendant no 2 is the tenant of the disputed house by allotment order? 3. To what relief and amount, if any, is the plaintiff entitled? It was held by the trial court that the defendant no. If so, its effect? 2. Whether the defendant no. 1 has sublet the suit promised to the defendant no. 2 or, whether the defendant no 2 is the tenant of the disputed house by allotment order? 3. To what relief and amount, if any, is the plaintiff entitled? It was held by the trial court that the defendant no. 2 Hukum Chand was occupying the disputed accommodation either as joint tenant or in the alternative as a statutory tenant in his own right by virtue of the allotment order in his favour. He was not the subtenant of defendant no. 1 and his occupation of the accommodation was lawful, It was also held that there was no wilful default in payment of arrears of rent either from defendant no. 1 or defendant no. 2. It was the plaintiff herself who unjustfiably refused to receive the rent inspite of the lawful tender by defendants nos. 1 and 2. The trial court, therefore, refused the decree for the possession of the suit accommodation and the claim for mesne profits. The claim for arrears of rent due with effect from 1st December, 1964 till the date of the filing of the suit at a monthly rent or Rs. 17/ was decreed. The plaintiff felt aggrieved and filed an appeal in the lower appellate court. The lower appellate court also affirmed the findings recorded by the trial court and dismissed the appeal. The plaintiff has now come up in the instant second appeal. The learned counsel for the plaintiff appellant Sri Santosh Kumar has submitted that in view of the lower appellate court's finding holding that Dharam Pal, defendant no. 1 alone was the sole tenant and that defendant no. 2 was neither a joint nor cotenant nor a subtenant, the remittance of the amount of rent by Hukum Chand for the period from 21st December, 1964 onwards was illegal and since the arrears of rent claimed for the months of December, 1964 and January 1965 were not remitted by the tenant Dharam Pal, therefore, it was a case of wilful default and the defendants were liable to be evicted. Learned counsel for the defendantsrespondents has supported the findings recorded by the courts below and has contended that it was not a case of wilful default as, in any case, the amount of rent was duly remitted to the plaintiff, within one month of the receipt of the notice of demand as required by Section 14A of Uttar Pradesh Cantonments (Control of Rent and Eviction) Act, 1952 (U. P. Act No. 10) of 1952. He has further contended that the trial court's findings that the allotment order could not be subsequently cancelled by the authority concerned is a good finding and the lower appellate court did not examine the said aspect as was done by the trial court. In my view, the contention raised on behalf of the appellant is correct. The trial court's view that the allotment order one made could not be cancelled is not correct. It seems that the order was obtained without notice to the landlady and, therefore, she subsequently made representation and on her representation the order was cancelled. It is important that the defendat no. 2 Hukum Chand was living for years with his elder brother Dharam Pal, defendant no. 1, in the suit accommodation. There was really no vacancy and it seems that the defendants sought to gain unfair advantage at the back of the landlady by surreptitiously getting an allotment order in favour of the defendant no. 2. The trial court has sought to derive support from the Supreme Court pronouncement in Lola Sri Bhagwan and another v. Ram Chand and another 1965 A. L.J. 353. It has also emphasised that the allotment proceedings are quasijudicial in view of the said pronouncement. If that be so, then the allotment order should have been passed after notice to the landlady and not at her back. In a situation where an allotment order has been passed at the back of the landlord and in ignorance of true facts, it is open to an authority passing the order to withdraw the same on true facts being brought to its notice. It does not lie in the mouth of the allottee in such a situation to raise a grievance that the cancellation was done without notice to him when he himself deliberately got an allotment order without a notice to the landlord concerned. It does not lie in the mouth of the allottee in such a situation to raise a grievance that the cancellation was done without notice to him when he himself deliberately got an allotment order without a notice to the landlord concerned. I, therefore, hold that Huxum Chand could not be treated as an allottee of the suit accommodation. Starting from this position, it is obyious that when the defendant no. 1 remitted the rent due upto 20th December, 1964 and the defendani no. 2 remitted rent due subsequently to the said period i.e. with effect from 21st December, 1964, they were really dofng so in their assertion of a clear right which they claimed on the basis of allotment order passed in favour of defendant no. 2. In other words, they were clearly and explicitly asserting that the defendant no. 1 was a tenant up to 20th December, 1964 and after the said date with effect from 21st December, 1964, the defendant no. 2 was the subtenant. This position was not open to be taken by the defendants in view of the fact that the allotment orders were not valid orders and were subsequently cancelled by the authority issuing the same. If a tenant remits part of a rent asserting that he is a tenant only upto a limited period and thereafter he ceased to be a tenant and that subsequently some other person is the tenant and the latter remits the amount with effect from a date from which he claims to be a tenant, then the plaintiff was justified in refusing to accept the amounts remitted because that would have meant acceptance of the claim which the defendants were setting up. The plaintiff was entitled to refuse to accept the different amounts which were tendered by different persons in assertion of the right which was not acceptable to the plaintiff and which was subsequently found to be wholly untenable. The plaintiff was entitled to refuse to accept the different amounts which were tendered by different persons in assertion of the right which was not acceptable to the plaintiff and which was subsequently found to be wholly untenable. In my view, in such a situation, it has to be held that the tenant was a wilful defaulter because he failed to remit the entire amount which was really due from him and the wilfullness of his conduct is underscored by the fact that he wrongly claimed to have ceased to be a tenant and incorrectly asserted that some one else had succeeded him in the tenancy on the basis of an allotment order which was subsequently cancelled. I, therefore, uphold the contention which has been raised by the plaintiff appellant. The appeal is allowed. The judgment and decree of the courts below are set aside. The plaintiff's suit shall stand decreed for the eviction of the defendants. It is also decreed for a sum of Rs. 55/ as arrears of rent due upto 7th March, 1965 and for Rs. 8/ as mesne profits upto the date of the filling of the suit. The suit is also decreed for mesne profits pendente lite and future at the rate of Rs. 17/ per month which was the contractual rate of tenancy. The plaintiff appellant will also be entitled to receive the costs throughout. Sri B. Dayal, learned counsel for the defendants respondents, has brought to my notice that the defendant no 2 Hukum Chand died during the pendency of the appeal in this court. The heirs have not been brought on record but that circumstance does not affect the maintainability of this appeal because undoubtedly Hukum Chand has been found to have been residing with the tenant Dharampal and his status could on|y be that of a licensee of the defendant no. 1 and as a licensee 93 he was really not a necessary party to the suit and the decree against the tenant would be binding on Hukum Chand if he were alive and on his heirs and legal representatives. However, learned counsel for the defendantsrespondents says that in view of the death of Hukum Chand, the widow and the children need some more time than ordinarily is given in these appeals to find out an alternative accommodation to shift there. However, learned counsel for the defendantsrespondents says that in view of the death of Hukum Chand, the widow and the children need some more time than ordinarily is given in these appeals to find out an alternative accommodation to shift there. The prayer seems to be reasonable and, therefore, I direct that the decree for possession shall not be executed for a period of four months from the date of the decree.