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1981 DIGILAW 6 (ALL)

Govind Prasad v. Bahoran Lal Jindal

1981-01-01

S.D.AGARWALA

body1981
ORDER S.D. Agarwala, J. - This petition under Article 226 of the Constitution of India arises out of a suit filed by the petitioner against opposite parties Nos. 1 and 2 for ejectment and for recovery of arrears of rent and damages. The petitioners filed Suit No. 119 of 1974 on the allegations that opposite party No. 1 was the tenant of the shop in suit on a monthly rent of Rs. 45/-. He is in arrears of rent from 1-1-1969 and that he has sub let the shop in suit to opposite party No. 2, Anand Sarup Jindal, without the permission of the petitioners. The suit was contested on the ground that the shop was taken on rent from Om Prakash by opposite party No. 1, Bahoran Lal Jindal, for the specific purpose that in the shop in dispute Anand Sarup Jindal would carry on business and Anand Sarup Jindal was carrying on business with the consent of the landlord Om Prakash. The suit was further contested on the ground that opposite parties Nos. 1 and 2 are not defaulters as in spite of the fact that rent was remitted to the petitioners they did not accept the same. 2. The trial court by judgment dated 5th May, 1976 dismissed the suit for ejectment and decreed the suit only for recovery of arrears of rent. The trial court recorded findings to the effect that opposite parties Nos. 1 and 2 are not defaulters and that the property was not sublet to opposite party No. 2 without the consent of the landlords. The judgment dated 5th May, 1976 was challenged in revision before the District Judge, Meerut. The revision was ultimately decided by the Vth Additional District Judge, Meerut, on 30th Sep., 1978. The judgment of the trial court was affirmed and the revision was dismissed. The petitioner has now challenged the judgments dated 5th May, 1976 and 30th Sep., 1978 by means of the present petition in this Court. 3. Learned Counsel for the petitioners has raised two submissions before me. His first submission is that under the provisions of Sec. 12 (1)(b) read with S. 25 of U.P. Act No. 13 of 1972 it should be deemed that opposite party No. 1 had sublet the premises to opposite party No. 2. 3. Learned Counsel for the petitioners has raised two submissions before me. His first submission is that under the provisions of Sec. 12 (1)(b) read with S. 25 of U.P. Act No. 13 of 1972 it should be deemed that opposite party No. 1 had sublet the premises to opposite party No. 2. The finding, therefore, recorded by the courts below that there was no subletting is a finding manifestly erroneous in law. The second submission of the learned Counsel is that in the absence of any evidence of refusal of the money orders, which were sent by opposite party No. 1, the opposite party No. 1 should have been held to be a defaulter and the findings to the contrary recorded are manifestly erroneous. 4. Section 12 (1)(b) of U.P. Act No. 13 of 1972, is as follows : "(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if - (a) ................................................. (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) .........................................." 5. Section 25 of U. P. Act No. 13 of 1972 prohibits subletting. The Explanation, which is relevant for the purposes of this petition, is as follows: "(1) where the tenant ceases, within the meaning of clause (b) of sub-section (1) or sub-section (2) of S. 12, to occupy the building or any part thereof he shall be deemed to have sub-let that building or part;" 6. On a reading of S. 12 (1)(b) along with S. 25 of U.P. Act No. 13 of 1972 it is clear that if a tenant or a landlord has allowed a building to be occupied by any person who is not a member of his family it shall be deemed that he has sublet it or a part thereof. The important words which would determine the intention of the Legislature behind this provision are has allowed. The important words which would determine the intention of the Legislature behind this provision are has allowed. If it is alleged that the tenant has allowed the building to be occupied by any person who is not a member of his family it would be held to be a case of sub-letting but if a landlord at the time of the commencement of the tenancy himself allows it to be occupied by any person who is not a member of the family of the tenant then it would not be a case of subletting. In the instant case the trial court has recorded a finding, which has been affirmed by the revisional court, that the property was in fact let out by Om Prakash, the landlord, to opposite party No. 1 for being occupied by Anand Sarup Jindal. The occupation, therefore, of Anand Sarup Jindal, in view of the finding, was because of a consent given by the landlord himself. It cannot, therefore, be said that in the instant case the tenant opposite party No. 1 has allowed it to be occupied by his brother, who is not a member of his family. Here, it is a case of landlord allowing the property to be occupied by opposite party No. 2. In the circumstances the legal fiction created by Section 12 read with S. 25 of the U.P. Act No. 13 of 1972, in my opinion, would not apply to the facts of the present case. 7. Learned Counsel for the petitioner has further urged in connection with this submission that if the view which I have taken above is correct it would make the provisions of S. 25 of the Act nugatory. Under sub-section (1) of S. 25 of the Act a tenant cannot sublet the whole of the building. Under sub-section (2) of S. 25 of the Act a part of the building can be sublet with the permission in writing of the landlord and the District Magistrate. The above provisions would apply where the tenant wants to sublet the building subsequently after taking the property on rent but where the relationship of the tenant and the person who occupies the building is not that of a landlord and a tenant the provisions of Section 35 of the U.P. Act No. 13 of 1972 would not apply. The above provisions would apply where the tenant wants to sublet the building subsequently after taking the property on rent but where the relationship of the tenant and the person who occupies the building is not that of a landlord and a tenant the provisions of Section 35 of the U.P. Act No. 13 of 1972 would not apply. If the landlord lets out the building to a person for being occupied by a person who is not a member of the family of the tenant it is not a case of subletting. The interpretation therefore which I have made does not render the provisions of Sec. 25 of U.P. Act No. 13 of 1972 nugatory. 8. In regard to the second submission raised by the learned Counsel, after the receipt of the notice of demand three money orders were sent by opposite party No. 1 within a period of one month from the date of the service of notice of demand on him. In Surendra Nath Mittal v. Dayanand Sarup Agarwal, 1978 All LR (SOC) No. 104, P. 93 : (1978 All LJ 339) I have taken the view that once the amount is remitted by money order it would be deemed to be payment to the landlord and the tenant cannot be held to be a defaulter. In view of this authority the question of refusal, therefore, ceased to have any importance. In the circumstances it cannot be said that opposite party No. 1 is a defaulter in the eye of law, once having remitted the amount due by money orders within the period of one month of the receipt of the notice of demand. 9. In view of the above I do not find any force in this petition. It is accordingly dismissed but in the circumstances of the case parties are directed to bear their own costs.