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1980 DIGILAW 951 (ALL)

Malik Mohammad v. V Additional District Judge

1980-10-10

A.N.VERMA

body1980
JUDGMENT : A.N. Verma, J. This is a tenant's petition. It is directed against concurrent orders passed by the courts below decreeing a suit filed by the Respondent No. 3, the landlord of the premises for the ejectment of the Petitioner on the ground of sub-letting. 2. The suit giving rise to this petition was filed against the Petitioner (Defendant No. 1) and the Respondent No. 4 Arshad (Defendant No. 2) on the ground that the Defendant No. 1 has illegally sub-let the premises to the Defendant No. 2. 3. The suit was contested by the Petitioner on the ground that he had not sub-let the disputed house to the Defendant No. 2. It was asserted that the Defendant No. 2 is the son of the sister-in-law of Defendant No. 1 and he had always been residing in the house in suit as close relation of the family. It was also asserted that the Plaintiff never objected to the residence of Defendant No. 2 with the Defendant No. 1, until the institution of the present suit. The trial court decreed the suit holding that the Defendant no 1 had sub-let the premises to Defendant No. 2. The finding of the trial court on the question of sub-letting bat been affirmed in revision by the learned v. Additional District Judge. 4. Learned Counsel for the Petitioner contended that the sub-letting if any had taken place long before the coming into force of U. P. Act No. 13 of 1972 as there was evidence on the record to show that the Defendant No. 2 was residing in the house from his childhood i.e. long before the coming into force of U.P. Act No. 13 of 1972. It was, therefore, urged that the issue, whether there was sub-letting or not had to be decided with reference to the law as it stood prior to the coming into force of U. P. Act No. 13 of 1972 and that the notions of sub-letting introduced in the new Act could not be imported into the decision of the question whether sub-letting took place under the old Act i.e. U. P. Act No. III of 1947. 5. Learned Counsel for the Respondent on the other hand urged that the concurrent finding recorded by the courts below is not vitiated by any error of law and cannot, therefore, be reviewed in these proceedings. 6. 5. Learned Counsel for the Respondent on the other hand urged that the concurrent finding recorded by the courts below is not vitiated by any error of law and cannot, therefore, be reviewed in these proceedings. 6. Having heard learned Counsel for the parties, I am inclined to accept the contention of the Petitioner's counsel. 7. In order to appreciate the argument, it will be useful to have the relevant provisions extracted here. Section 20(2)(e) of U. P. Act No. 13 of 1972 reads thus: 20 (2) (e) that the tenant has sub-let, in contravention of the provision of Section 25, or as the case may be, of the old Act the whole or any part of the building. 8. It is, therefore, obvious that where the sub-tenancy takes place after coming into force of U. P. Act No. 13 of 1972, the matter has to be decided with reference to the provisions of Section 25 of the New Act, but where the sub-letting is alleged to have taken place prior to the coming into force of the aforesaid Act (U. P. Act No. 13 of 1972), the question will have to be decided without reference to the provisions of Section 25 or Section 12 of the 1972 Act. 9. From a perusal of the judgment of the learned Additional District Judge, it is clear that in deciding the issue, he definitely had in his mind the provisions of Section 12 and Section 25 of the U. P. Act No. 13 of 1972. Indeed, he has expressly relied on Section 12 of the Act. He has observed thus: Where the landlord has permitted a person who is not a member of his family to live in the house, a vacancy will be deemed u/s 12, U. P. Urban Buildings Act No. 13 of 1972 because the tenant will be deemed to have ceased to occupy the building. 10. This was an obvious error. The learned Addl. District Judge ought to have determined the question whether the Defendant No. 1 had sub-let the house to Defendant No. 2 with reference to the provisions of law or legal principles Which were applicable prior to the coming into force of U. P. Act No. 13 of 1972. 11. In view of what has been stated above, this petition succeeds and is allowed. 11. In view of what has been stated above, this petition succeeds and is allowed. The order passed by the learned V Additional District Judge, Aligarh dated 17-7-1978 is quashed. The case is remanded to the learned Additional District Judge, Aligarh for disposing of the revision filed by the tenant according to law, having regard the observations made in the judgment. The parties shall bear their own costs.