Shanti Mohan v. Niranjan Singh — 1980 DIGILAW 650 (ALL)

JUDGMENT V.K. Khanna, J. -This is a plaintiff's second appeal arising out of a suit for ejectment of the defendants from the accommodation in suit. 2. The plaintiffs case was that defendant No. 1 had not paid rent and had sublet the accommodation to defendant No. 2. It was also alleged that the rent has not been paid despite service oi notice. 3. Defendant No. 1 contested the aforesaid suit on the ground that no notice had been served on him and that he had entered into a partnership with Niranjan Singh, defendant No. 2, with the permission of the plaintiff and that after dissolution of the partnership, Niranjan Singh, defendant No. 2, is continuing in occupation of the promises in dispute. Niranjan Singh, defendant No. 2, contended that defendant No. 1 vacated the accommodation in 1962 and that he was in possession of the accommodation in dispute while allotment orders were passed in his favour. 4. The trial court held that the notice had been duly served on defendant No. 1 It was also held that defendant No. 1 had not sub-let the accommodation in dispute with the permission of the plaintiff and that defendant No. 1 is defaulter under Section 3 (1) (a) of the U. P. Act No. Ill of 1947. The trial court also held that the alleged partnership of defendant No. 1 and defendant No. 2 could not be proved and the defendant No. 1. Ram Lal did not vacate the shop but put in Niranjan Singh in the accommodation in suit for and on his behalf without any partnership between them, which amounted to sub-letting of the accommodation. It was also held that the allotment order in favour of defendant No. 2, Niranjan Singh was not passed after giving notice to the plaintiff and that the plaintiff was not even informed of the allotment order. On the basis of the aforesaid findings the suit of the plaintiff was decreed. Feeling aggrieved, defendant No. 2 preferred an appeal and pressed only one point before the lower appellate court. It was argued before the lower appellate court that the fact of sub-letting having been admitted by the plaintiff-respondent, the aforesaid fact was itself sufficient for creating a vacancy and the Rent Control and Eviction Officer thus legally allotted the disputed premises to the defendant-appellant, Niranjan Singh. It was argued before the lower appellate court that the fact of sub-letting having been admitted by the plaintiff-respondent, the aforesaid fact was itself sufficient for creating a vacancy and the Rent Control and Eviction Officer thus legally allotted the disputed premises to the defendant-appellant, Niranjan Singh. The lower appellate court relying on a Full Bench decision of this Court reported in Mohd. Ishaq v. State Govt, of Uttar Pradesh (1966 All LJ 397): ( AIR 1966 All 280 ) held that in view of the aforesaid Full Bench Decision, the tenant-in-chief Ramlal would be deemed to have vacated the entire accommodation, and the District Magistrate had to pass an order under Section 7 (2) of the Act to the owner to let it to another person. It was held that the fact of subletting having been clearly admitted by the plaintiff-respondent, there could be no manner of doubt whatsoever in view of the above Full Bench decision that the tenant-in-chief would be deemed to have vacated the entire accommodation. Relying on the allotment order passed in favour of Niranjan Singh, the appellate court held that Niranjan Singh could not be evicted from the premises in dispute unless his tenancy was terminated in accordance with law. 5. The learned counsel for the appellant firstly urged that in view of the decision in the case of Smt. Ram Mani Devi v. Rent Control and Eviction Officer, Allahabad, ( (1976) 2 All LR 76): ( AIR 1976 All 517 ) (FB) the view of the lower appellate court that there was vacancy because of the illegal sub-letting is erroneous in law. It has been urged that in view of the aforesaid five Judges Full Bench decision, no allotment order could have been passed by the District Magistrate in favour of Niranjan Singh, as there was no vacancy. 6. The learned counsel for the respondent in reply to the aforesaid argument has urged that the allotment order on which reliance was being placed, by Niranjan Singh could not be challenged in the present suit. It was also alleged that the second appeal stands abated in view of the death of Niranjan Singh. The learned counsel for the respondent also tried to distinguish the Five Judges Full Bench decision in the case of Smt. Ram Mani Devi (supra). 7. It was also alleged that the second appeal stands abated in view of the death of Niranjan Singh. The learned counsel for the respondent also tried to distinguish the Five Judges Full Bench decision in the case of Smt. Ram Mani Devi (supra). 7. The very first thing which has to be seen in this case is as to whether the Five Judges Full Bench in the case of Smt. Ram Mani Devi ( AIR 1976 All 517 ) (supra) has overruled the Full Bench decision in the case of Mohd. Ishaq (1966 All LJ 397), on which reliance was placed by the appellate court. The Five Judges Full Bench has clearly overruled the decision given in Mohd. Ishaq (supra) and has held that:- "Now what would be the position if the tenant-in-chief sub-lets the entire tenanted accommodation or a portion thereof without having previously obtained the written permission of the District Magistrate and the landlord. Such a sub-lease would be hit by sub-section (3) of Section 7 of the Act and the tenant-in-chief in that event would be considered to have acted in contravention of that provision. This would give rise to two situations. The landlord would immediately get a right to file a suit for the eviction of the tenant-in-chief without obtaining the permission of the District Magistrate vide Section 3 (e) of the Act. The tenant might also be prosecuted under Section 8 of sub-section (3) of the Section 7. But the District Magistrate would have no jurisdiction to pass any order under sub-section (2) of Section 7." 8. From the above full bench decision in the case of Smt. Ram Mani Devi ( AIR 1976 All 517 ) (supra) there will be no vacancy within the meaning of Section 7 of the U. P. Act No. Ill of 1947, because of the sub-letting of the premises by the tenant-in-chief to defendant No. 2. The only point, therefore, raised by defendant No. 2, Niranjan Singh, before the lower appellate court had no substance and in view of the 5 Judges Full Bench decision in the case of Smt. Ram Mani Devi, the appeal filed by defendant No. 2, was liable to be dismissed. 9. As stated above, the learned counsel for the respondent has urged that in the suit the allotment order passed in favour of Niranjan Singh could not be challenged. 9. As stated above, the learned counsel for the respondent has urged that in the suit the allotment order passed in favour of Niranjan Singh could not be challenged. In my opinion, the contention of the learned counsel is without any force. The jurisdiction to pass an allotment order arises only if there was vacancy. In case there is no vacancy, (the order of allotment will become with-lout jurisdiction and will be a nullity. This view finds support from the pronouncement of the Supreme Court in the case of Ram Swarup v. Shikar Chand ( AIR 1966 SC 893 ): (1966 All LJ 360). 10. The learned counsel for the respondents then urged that this appeal abates because of the death of Niranjan Singh. Reliance has been placed on a decision of the Delhi High Court reported in the case of Mangal Chand v. Gurbaksh Singh (AIR 1972 Delhi 56). The case cited by the learned counsel has no application to the facts of the present case because in Mangal Chands case the statutory tenant had died during the pendency of the case. Here in the instant case Niranjan Singh would not become a statutory tenant as there would be no vacancy and the order of allotment was without jurisdiction and a nullity. The plaintiff had never recognised Niranjan Singh as tenant and thus the death of Niranjan Singh would not cause the abatement of the appeal. Heirs of Niranjan Singh have been duly substituted in this appeal. 11. The learned counsel for the respondents thereafter argued that the U. P. Act No. Ill of 1947 stands repealed after the coming into force of the U. P. Act No. 13 of 1972 and the present suit is not saved under any of the provisions of Section 43 of the New Act. A bare perusal of Section 43 (2) would show that any suit for the eviction of a tenant instituted on any ground, mentioned in sub-section (1) of Section 3 of the old Act, or any proceeding out of such suit (including any proceeding for the execution of a decree passed on the basis of any agreement, compromise or satisfaction, pending immediately before the commencement of this Act, may be continued and concluded as if this Act had not been passed. Admittedly, the suit had been filed on one of the grounds mentioned in sub-section (1) of Section 3 of the old Act i. e. the ground of default and of sub-letting and thus under the provisions of Section 43 (2) (s) the old Act applied to the present case and the suit was liable to be continued and concluded as if the new Act had not been passed. The contention raised by the learned counsel for the respondents has thus no force. 12. In the end, the learned counsel has argued that if the new Act applies, the Full Bench decision in the case of Smt. Ram Mani Devi ( AIR 1976 All 517 ) will have no application. In view of what has been held above, the new Act cannot apply and thus the argument raised by the learned counsel for the respondent does not require any consideration. 13. No other point has been pressed before me. 14. For the reasons stated above, the present second appeal succeeds and is allowed. The judgment and decree of the 1st Additional Civil Judge, Kanpur dated 27-1-1969 is set aside and that of the trial court is restored. However, in the circumstances of the case parties shall bear their own costs.