Mohammad Umar v. State of U. P. (Rent Control Section)
1985-11-21
A.C.AGRAWAL, H.N.SETH
body1985
DigiLaw.ai
JUDGMENT H.N. Seth, A.C. J. 1. This is Defendants petition for relief Under Article 226 of the Constitution. He prays that the order, dated 2nd of December, 1.979 passed by the District Judge, Faizabad in Small Cause Court Civil Revision No. 37 of 1978 be quashed and that the order passed by the Judge Small Causes on 29th May, 1978 dismissing the Plaintiffs' suit for Petitioner's ejectment be restored. 2. Briefly stated, the facts giving rise to this petition are that Bhagwat Prasad and his three brothers (Respondents No. 3 to 6) claimed to be the owners and landlords of shop No. 577 as well as that of the residential accommodation above it. According to them, Mohammad Umar (Petitioner) was their tenant liable to pay Rs. 110; per month as rent for the shop and Rs. 50;'- per month as rent for the residential portion above the said shop. As the Defendants defaulted in payment of rent, the Plaintiffs served a notice, dated 13th of August, l975 upon him, determining his tenancy and thereafter they filed the suit before the Judge Small Causes for Defendant's ejectment and recovery of Rs. 2,020- as arrears of rent and damages due up to 29th February, 1976. 3. The Defendant contested the suit and urged that inasmuch as the provisions of U.P. Act No. 13 of 1972 were applicable to the accommodation in question, the present suit for his ejectment was not maintainable. He also claimed that the notice to quit was illegal, the amount of arrears claimed was incorrect and that in any case the Plaintiffs had waived the notice to quit inasmuch as they had accepted the rent for the accommodation for the period subsequent to the date of notice. 4. The trial court rejected the plea of the Defendant to the effect that the accommodation in dispute was covered by the provisions of U.P. Act No. 13 of 1972. It held that the rent as claimed by the plaint its was in fact due. It rejected the plea of the Defendant with regard to waiver of notice to quit but went on to hold that inasmuch as the copy of the notice to quit filed by the Plaintiffs did not bear the signatures of all the landlords, it was invalid. In the result, the trial court decreed the Plaintiffs suit for recovery of Rs.
It rejected the plea of the Defendant with regard to waiver of notice to quit but went on to hold that inasmuch as the copy of the notice to quit filed by the Plaintiffs did not bear the signatures of all the landlords, it was invalid. In the result, the trial court decreed the Plaintiffs suit for recovery of Rs. 2,020 as arrears of rent but dismissed the suit in so far as the relief for Defendant's ejectment was concerned. 5. Aggrieved, the Plaintiffs went up in revision before the District Judge, who disagreed with the trial court on the question of validity of the notice determining Defendant's tenancy and held that the said notice was quite valid. In the result, he, vide his judgment, dated 20th of December, 1979, allowed the revision application and decreed the Plaintiffs' suit for Defendant's ejectment as well. Defendant Mohammad Umar has now approached this Court for relief Under Article 226 of the Constitution and has questioned the validity of District Judge's finding with regard to the validity of the notice determining his tenancy. According to him the said finding suffers from an apparent error of law and is liable to be quashed. 6. The principal question that arises for consideration in the present petition is with regard to the validity of the notice, dated 13th of August, 1975 determining the tenancy of the Petitioner. 7. It is not disputed that the Defendant who was served with the original notice, dated 13th of August, 1975 purporting to determine his tenancy, on 14th of August, 1975. He did not hoe the said notice before the trial court. Accordingly the Plaintiffs attempted to prove their case before the trial court by filing before it a copy of the said notice. The said copy did not indicate that the original notice bore the signatures of all the Plaintiffs. A copy of the said notice has been filed by the Petitioner as Annexure 3' to the petition. Translated into English, the said notice runs thus: Be it known that you are the tenant of our shop No. 577/506, Subhash Nagar as well as that of the upper residential portion thereof at the rate of Rs. 110/- and Rs. 50 - per month respectively. A sum of Rs.
Translated into English, the said notice runs thus: Be it known that you are the tenant of our shop No. 577/506, Subhash Nagar as well as that of the upper residential portion thereof at the rate of Rs. 110/- and Rs. 50 - per month respectively. A sum of Rs. 2020'- is due from you in respect of the said shop and residence up to 31.7.75 as per details mentioned at the foot of the notice. The said shop and residential accommodation is newely constructed and you are not entitled to the benefits of Rent Control Act. Now we do not want to keep you as our tenant in the said shop and house. Accordingly your tenancy in respect of the shop and the house situated at Subhash Nagar, Faizabad is being determined by this notice and you are directed to vacate the said shop and house within thirty days of the receipt of the notice and to hand over its possession to us. Apart from this, you must pay the entire arrears of rent due from you otherwise on expiry of the period mentioned above, a suit for ejectment and recovery of arrears of rent and damages would be filed against you and you would be liable for all expenses. 8. A perusal of the said notice clearly brings out that it was being given on behalf of landlords and not merely on behalf of one of the landlords, who according to the Defendant had signed the same. The suit in question has been filed on behalf of Bhagwat Prasad and his three brothers all of whom had. In the plaint, claimed to have given the notice, dated 13th of August, 1975 determining the Defendant's tenancy. In the case of Misri Lai v. Ram Gopal, 1965 AWR 753 it has been observed that where a notice of termination, though signed by one of the joint owners, says that it was being sent on behalf of all of them, and subsequently all of them state, in the plaint of a suit for ejectment, that they sent a notice of termination, it will be presumed that the statement in the notice is correct, and the onus will be on the tenant to prove that the notice was not on behalf of all the joint owners. 9. The decision in the case of Misri Lal and Anr.
9. The decision in the case of Misri Lal and Anr. (supra) was approved by this Court in the case of Ram Bhusan v. Kalu Ram Chakravarty 1971 ALJ 752. 10. In the case of Abdul Sami Vs. Mohammad Ashfaq and Others, (1978) AWC 173 it has been observed: Where there are two or more co-lessors the tenancy can be put to an end to only by the joint action of all co-lessors and the notice to quit must, therefore, be given by or on behalf or all co-lessors. The singular word "lessors" occurring in Section 106 Transfer of Property Act includes the plural, hence where there are two or more lessors the notice determining the tenancy must be given by all the lessors. It may, however, be added that if the contract between the Parties provides that any one of the co-lessors can give notice determining the tenancy the contract would prevail and the notice given in accordance with the terms of the contract would effectively determine the tendency. Further, notice given by all the co-lessors need not be signed by all of them. It is sufficient if it is given by someone acting as agent for all the co-lessors. 11. Applying the principles laid down in aforementioned cases with which I respectfully agree, it becomes evident that the notice in question determining the tenancy of the Defendant had been given under the authority of and on behalf of all the four Plaintiffs who claimed to be the landlords of the accommodation in dispute. Merely because it was signed by only one of the landlords does not vitiate the same and the finding arrived at by the learned District Judge in revision that the said notice is valid does not suffer from any error of law. 12. Learned Counsel for the Petitioner then relied upon a statement of one of the Plaintiffs (extract filed as Annexure 4' to the writ petition) wherein, he had stated as follows: ...I pay the Income Tax on the income derived from the shop as also on the rental income separately. The rental income is the income of the HUF and that in the firm there are other partners. HUF consists of four brothers and my mother. My mother has also a share in the income.
The rental income is the income of the HUF and that in the firm there are other partners. HUF consists of four brothers and my mother. My mother has also a share in the income. and contended that the aforesaid statement made by the Plaintiff clearly contains an admission that apart from the four brothers, their mother was also co-owner and one of the landlords of the accommodation in dispute. Inasmuch as she did not join the filing of the suit, it could not be contended that the notice determining Defendant's tenancy was on her behalf as well. As the notice determining the tenancy had not been given on behalf of all the landlords, it would be defective and cannot be taken into account for passing a decree for Defendant's ejectment. I do not find anything either in the judgment of the Judge Small Causes or in that of the learned District Judge to indicate that the Defendant had ever contested the Plaintiffs' case that they were the landlords of the accommodation in question. There is nothing to show that they ever took out the plea that apart from the four Plaintiffs, their mother was also a co-owner of the accommodation in dispute. In the circumstances, I am not inclined to permit the Defendant to make the aforesaid submission for the first time in this writ petition. 13. Learned Counsel for the Petitioner then contended that in the instant case, the Plaintiffs had filed the suit for Petitioner's ejectment from two different accommodations which constituted two independent tenancies. He relied upon a decision of the learned single Judge of this Court in the case of Ram Chandra v. Judge, Small Cause Court, 1983 AWC 955 wherein it was held that one suit against two tenants cannot be filed and that such a suit would be bad for joining two different causes of action. He, therefore, urged that the present suit is bad for mis-joinder of causes of action. 14. Even if for arguments sake, it be accepted that it was not open to the Plaintiffs to join in one suit, the causes of action with regard to two different tenancies, the Petitioner is, in my opinion, not entitled to claim any relief on that account.
14. Even if for arguments sake, it be accepted that it was not open to the Plaintiffs to join in one suit, the causes of action with regard to two different tenancies, the Petitioner is, in my opinion, not entitled to claim any relief on that account. Order 2 Rule 7 of the CPC lays down that all objections on the ground of mis-joinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. An objection with regard to mis-joinder of causes of action is not to be countenanced by a court unless the objection of the same was raised by the party concerned at the earliest possible opportunity and in a case where the issues are settled, before the date of settlement of such issues. In the instant case, there is nothing on the record to show that the Petitioner even raised this objection at any stage prior to the filing of the present writ petition. In the circumstances, it cannot be said that the impugned judgment passed by the District Judge suffers from any error of law or of jurisdiction on this account. 15. As I do not find any merits in any of the submissions made by the learned Counsel for the Petitioner, the petition fails and is dismissed with costs.