Ram Lal Talwar v. District Judge, Gorakhpur — 1978 DIGILAW 1264 (ALL)

JUDGMENT K.C. Agrawal, J. - The writ petition is directed against a judgment of the District Judge, Gorakhpur, dated 15-12-1975. The writ petition arises out of proceedings under section 1((1)(b) of U.P. Act XIII of 1972. 2. The dispute was with respect to a premises, which belongs to Laxrnan Das Agarwal, Respondent 4. This had been let out to Ram Lal Talwar, the petitioner, and Harbans Singh Talwar, husband of respondent 5 and the father of respondents 6 to 9. In the application, the allegations made were that the shop had been let out to Harbans Singh Talwar on rent for doing the business of Soda water factory, and that Harbans Singh died in the year 1963-64 leaving behind respondents 5 to 9 as his heirs and legal representatives. It was claimed that the aforesaid respondents had, without the consent of the landlord or without any permission of the District Magistrate, sublet a portion of the disputed premises to one Gopal Krishna Suri, respondent 10, and as such the whole of the premises was liable to be treated as vacant under Section 12(4) of the Act. On receipt of the notice of the aforesaid proceedings, an objection was filed by the petitioner and respondents 5 to 9, stating that a portion of this premises had been let out in 1969, but thereafter the sub- tenant vacated the same in 1970 and since then the same had been in continuous possession of the petitioner and respondents 5 to 9. 3. On 5-5-1975, the Rent Control and Eviction Officer held that the premises was vacant, and on that finding notified the vacancy. He thereafter, proceeded to consider the application for release made by respondent 4, and having found that the need of the said respondent was not bonafide rejected the same on 3-7-1975. Against the said order, respondent 4 preferred an appeal before the District Judge. On 15-12-1975 the appeal was allowed, and the premises was released in favour of respondent No. 4. 4. Against the said order, the petitioner filed the present writ petition. 5. Against the said order, respondent 4 preferred an appeal before the District Judge. On 15-12-1975 the appeal was allowed, and the premises was released in favour of respondent No. 4. 4. Against the said order, the petitioner filed the present writ petition. 5. One of the main points urged by the learned counsel for the petitioner was that as neither the petitioner nor respondents 5 to 9 had been impleaded as parties in the appeal preferred before the District Judge against the order dated 3-7-1975, the judgment given in the appeal was invalid and was liable to be set aside. 6. Before proceeding to decide this point, it may be pointed out that according to the case of respondent 4 the premises in dispute had been let out to Harbans Singh Talwar and on his death the tenancy was inherited by respondents 5 to 9 and the petitioner. The case of the petitioner, however, was that he was a tenant in his own right along with respondents 5 to 9. He did not accept that he was one of the heirs of Harbans Singh Talwar. It is not necessary for me to dilate on this point inasmuch as for deciding the writ petition it would be necessary to give a concluded decision thereon. 7. Reverting to the point, the same was about the non-impleadment of the petitioner and respondent 5 to 9. It has already been noticed that the case of respondent 4 himself was that only a part of the premises had been let out to Gopal Krishna Suri, respondent 10. On the aforesaid allegation, he had claimed that the entire premises had fallen vacant. Thus, even the respondent 4 had admitted that the entire premises had not been let out by the heirs of the deceased Harbans Singh Talwar. In this background, it has to be considered whether the appeal of respondent 4 could be allowed without impleading the Petitioner and respondents 5 to 9, since a prayer had been made by respondent 4 for declaring the whole of the premises to be vacant, was that, the petitioner and respondents 5 to 9 should have also been impleaded in the appeal. The interest of the aforesaid persons was widely involved in the appeal, and, as such, the appellate authority could not have decided the appeal of respondent 4 without impleading them. 8. The interest of the aforesaid persons was widely involved in the appeal, and, as such, the appellate authority could not have decided the appeal of respondent 4 without impleading them. 8. Counsel for the respondent 4 contended that as the petitioner had not challenged the validity of the order dated 5-5-1975 declaring the vacancy, the non-impleadment of the petitioner and respondents 5 to 9 was inconsequential. The submission has no substance. There is no provision in U.P. Act XIII of 1972 under which an appeal against an order declaring vacancy could be preferred. An appeal lies under section 18 only against these orders which are mentioned therein. An order declaring vacancy is not an order which is covered under section 18 of the Act. Merely because, therefore, the petitioner and respondents 5 to 9 has not filed an appeal against the order declaring vacancy they had been disentitled in the appeal preferred by respondent 4. 9. In M/s. Tilak Singh and Co. v. District Magistrate, AIR 1976 Supreme Court 1988. the Supreme Court has taken the view that an order declaring vacancy is not liable to be challenged. But the validity of such an order could be subsequently raised in an appeal or revision whenever an occasion for the same arises. In the instant case, the petitioner and respondents 5 to 9 could have challenged that the order dated 5-5-1975 was invalid, had the respondent 4 impleaded them in the appeal. On the view taken above, it appears appropriate to set aside the order of the District Judge and to send back the case to him for deciding it on merits. The respondent 4 is directed to implead the petitioner and respondents 5 to 9 in the appeal. As provided by the amended 5.18, the said appeal has to be treated as a revision and has to be decided as such. 10. Before parting with the judgment, I wish to make it clear that under section 12(4) any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1) or (2) sub-section (3). Subsection (3-A) or sub-section (3-B) shall for the purposes of chapter III be deemed to be vacant. 10. Before parting with the judgment, I wish to make it clear that under section 12(4) any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1) or (2) sub-section (3). Subsection (3-A) or sub-section (3-B) shall for the purposes of chapter III be deemed to be vacant. In the instant case, the respondent 4 had claimed that only one of the rooms had been subject to a stranger and if the said fact was proved to be correct, in that event only that room which had been let out would be liable to be declared as vacant under section 2(4). But as, I am remanding the cast to the District Judge, I direct him to reconsider the whole of the controversy afresh and to decide the rights of the parties on its basis. 11. For these reasons, the writ petition succeeds and is allowed. The order of the District Judge dated 15-12-1975 is quashed and he is directed to decide the revision afresh in the light of the observations made above. No order as to costs.