Gulam Rasool v. Pushpa Devi — 1987 DIGILAW 435 (ALL)

JUDGMENT S.C. Mathur, J. - The important question of law arising for determination in this case is whether a subtenant occupying an accommodation with the express or implied consent of the landlord is entitled to be impleaded in an application under Section 21 (1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (U.P., Act No. 13 of 1972), for short, Act. The question has arisen in the circumstances hereinafter narrated. 2. In the year 1980 the landlords, who have been impleaded in the present writ petition as opposite parties 1 to 3, filed an application against Sri Abdul Hakeem for release of two adjoining shops (described in the application as two door shop) comprised in house no. 55, situate at Narhi Bazar, Hazratganj, Lucknow. The application was made under section 21 of the Act and it was stated that the shop was required by the landlords for their own use. In paragraph 9 of the application it was stated that the tenant was not using the tenanted accommodation for his own use inasmuch as he had sublet one door to Ghulam Rasool, the present petitioner and the other to Munna. Neither of the two subtenants was impleaded in the application. During the pendeney of the proceedings Sri Abdul Hakeem died and his heirs, who are opposite parties 4 and 5 in the present petition, were impleaded and brought on record. Ghulam Rasool applied for impleadment on the basis that he was in occupation as a tenant for the last fifty years to the knowledge of the landlord. The application was rejected by the Prescribed Authority by his order dated 9.12.1982, Annexure 2. In his order the Prescribed Authority observed that an application under section 21 lies against a tenant and since the petitioner was not a tenant, he could not be impleaded in the application. On 24.2.1984 the landlords and the heirs of Abdul Hakeem entered into a compromise, the heirs agreeing to vacate one of the two shops within two months failing which the landlords would be entitled to take possession by taking recourse to section 23 of the Act. The case was decided in terms of this compromise a copy of the compromise petition is Annexure 3. The shop which was agreed to be vacated is one which is in the occupation of the present petitioner. The case was decided in terms of this compromise a copy of the compromise petition is Annexure 3. The shop which was agreed to be vacated is one which is in the occupation of the present petitioner. Since the petitioner was affected by the order of release passed on the basis of compromise petitions he preferred appeal under section 22 of the Act. The learned Vth Additional District Judge, to whose court the appeal had been transferred, dismissed the same by his order dated 31.1.1987, annexure 4. The learned judge held that appeal was not maintainable at the instance of a subtenant. He further observed that the order dated 9.12.1982 had become final between the parties. In coming to this conclusion he relied upon Rupchand Gupta v. Raghuvanshi Private) Ltd. and mother (AIR 1964 Supreme Court 1889). The learned judge observed that this authority had laid down that the subtenant is not a necessary party to a suit for possession and that he is bound by the decree for eviction passed against the tenantinchief and on this principle the petitioner could not maintain the appeal, Faced with the prospect of eviction from the shop in his occupation, the petitioner has approached this court under Article 226 of the Constitution. 3. The learned counsel for the petitioner has submitted that the reliance placed by the court below upon Rupchand's case is misconceived as the matter has been directly dealt with by their Lordships in Shyam Babu v. District Judge, Moradabad and others, 1984 (1) Allahabad Rent Cases 248. It is pressed that the petitioner has been in occupation for the last several years with the consent of the landlord and, therefore, the hardship that he will suffer from eviction from the shop in question is, also required to be weighed against the hardship that the landlords will suffer by the rejection of their application. It is urged that since as a subtenant the petitioner's hardship is also required to be considered, he was a proper party to be impleaded in proceedings under section 21 and, therefore rejection of his impleadment application was manifestly erroneous. It is urged that since as a subtenant the petitioner's hardship is also required to be considered, he was a proper party to be impleaded in proceedings under section 21 and, therefore rejection of his impleadment application was manifestly erroneous. On the same basis it is submitted that the petitioner was an aggrieved party also within the meaning of section 22 of the Act and he had the right of appeal under that provision and the learned Additional District Judge committed manifest error in rejecting his appeal as incompetent. 4. The petitioner's contentions have been controverted by the learned counsel for the landlords who submits that the ratio of Shyam Babu's case (supra) would not apply to the present case as the petitioner initially tried to claim the status of tenant and it was only when that claim was not accepted that he has come up with the case of subtenancy. It is urged that the ratio of the said case would apply only where admittedly the subtenant is inducted with the express consent of the landlord. 5. The 4th proviso to section 21 which has been interpreted by their Lordships in Shyam Babu's case reads as follows: Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. 6. The word tenant in the above proviso has been interpreted by their Lordships to include subtenant also. This is apparent from the observations made in paragraph 10 and 11 of the report. Before reproducing relevant passages from these paragraphs, the facts of the case may be stated. In Shyam Babu's case Krishan Kumar was the tenant of the shop in dispute. He had sublet the shop to Shyam Babu in the ear 1962. In 1968 the landlord filed suit against the tenant and subtenant for eviction on the ground of illegal subletting. The suit was dismissed on 24.4.1973; the court upheld the plea of the defendants that the subletting was not illegal inasmuch as it was with the consent of the landlord. In 1968 the landlord filed suit against the tenant and subtenant for eviction on the ground of illegal subletting. The suit was dismissed on 24.4.1973; the court upheld the plea of the defendants that the subletting was not illegal inasmuch as it was with the consent of the landlord. During the pendency of the suit the landlord filed an application under section 21 of the Act for release on the ground of personal requirement. In this application the tenant as also the subtenant were impleaded as oppositeparties. The Prescribed Authority allowed the application in respect of the portion occupied by the subtenant but dismissed it in respect of the portion occupied by the tenant. Against the order of the prescribed Authority the landlord as well as the subtenant preferred appeals before the learned District Judge. The learned District Judge dismissed both the appeals. The landlord thereafter felt satisfied but the subtenant preferred writ petition in this Court at Allahabad. The subtenant's plea was that the authorities below had not considered his hardship. This Court held that the likely hardship to the subtenant was not required to be considered in an application under section 21. Allowing the appeal their Lordships observed in paragraph 10 as follows: If once it is accepted that the subtenancy created by the tenantinchief in favour of the appellant was with the consent of the landlords his possession cannot be said to be illegal. In this view of the matter we see no reason why he should be deprived of the protection of the fourth proviso to Section 21 of the new Act. Again in paragraph 11 it is observed: ... ............... If the subtenancy had been created without the consent of the landlord the position might have been different. The subtenant for the purposes of the fourth proviso to section 21 would virtually be a tenant inasmuch as rent is payable by him to the tenant in chief, who to all intents and purposes will be a landlord qua the subtenant. To interpret the section in the way as the High Court has interpreted would be defeating the very salutary purposes of the new Act. To interpret the section in the way as the High Court has interpreted would be defeating the very salutary purposes of the new Act. With these observations the judgments of this Court and of the District Judge and the order of the prescribed Authority were set aside and the case was remanded to the District Judge with the direction to send it to the Prescribed Authority to dispose of the application under section 21 in the light of the observations made in the judgment after considering the likely hardship of the subtenant and that of the landlord. 7. In my opinion the sum and substance of this decision is that if the subtenancy is legal, the subtenant is also entitled to the benefit of the fourth proviso to section 21. The legality of the subtenancy may arise in two ways(1) there may be consent of the landlord, and (2) there may not be any legal bar to the creation of subtenancy. In the first case the consent may be express or it may be implied. The consent would be implied when the landlord, despite knowledge of the creation of subtenancy does not object to it nor takes any step to obtain possession of the accommodation despite availability of right in that behalf. It is in this back drop that facts of the present case may be examined. 8. From the material on record it prima facie appears that the petitioner has been in occupation of the shop in question since the year 1952. This appears from the judgment of the learned Additional District Judge, Annexure 4, wherein he has referred to Suit No. 179 of 1952 filed by Abdul Hakeem against the petitioner for realisation of rent, which was decreed. It also appears from the judgment that Chhotey Lal, brother of the landlady Pushpa Devi, had appeared as a witness in the case. The same position emerges from the averments made in paragraph 3 of the writ petition and the reply thereto contained in paragraph 3 of the counteraffidavit. In paragraph 3 of the writ petition the petitioner has asserted that the sabletting was done by Abdul Hakeem prior to 1951. In paragraph 3 of the counteraffidavit subletting by Abdul Hakeem is not disputed. No counter year of the subletting has been asserted. In paragraph 3 of the writ petition the petitioner has asserted that the sabletting was done by Abdul Hakeem prior to 1951. In paragraph 3 of the counteraffidavit subletting by Abdul Hakeem is not disputed. No counter year of the subletting has been asserted. All that is asserted is that the subletting was wrongly done and it was without the consent of late Sri Ram Chandra Vaish, the original landlord of the shop. Ram Chandra Vaish does not appear to have protested against the subletting nor does he appear to have claimed possession on the basis of illegal subletting by Abdul Hakeem. Prima facie, therefore, it appears that if not express, there was implied consent of the then landlord to the subletting. The present landlords do not claim to have, protested against the subletting or to have claimed possession on the basis of the alleged illegality. Thus, prima facie, they too appear to have acquiesced in the subletting. I have used the words prima facie as the matter will have to be decided by the prescribed authority on the basis of evidence which may be produced before him, as the landlord are now asserting that the subletting was without their consent. I may only point out that in the application under section 21 also the landlords have not stated that the subletting was illegal. All that is stated in paragraph 9 of the said application, Annexure 1, is as follows: That the opposite party is a rich man and is not using the said shop for any purpose as he has let out one door to Sri Ghulam Rasool, who is running his vegetable shop and in the other door, the opposite party has allowed one Shri Munna who is running his mutton shop. The assertion in this paragraph is only of letting and not of illegal subletting. Once it is found that the petitioner is a subtenant with the express or implied consent of the landlords, his hardship will also have to be considered visavis the hardship of the landlord. This brings us to the question of the validity of the order rejecting petitioner's application for impleadment in the proceedings under section 21. 9. Once it is found that the petitioner is a subtenant with the express or implied consent of the landlords, his hardship will also have to be considered visavis the hardship of the landlord. This brings us to the question of the validity of the order rejecting petitioner's application for impleadment in the proceedings under section 21. 9. Once it is held that as a subtenant the petitioner's hardship will also require consideration under the fourth proviso to section 21, the petitioner would be a proper party to the proceedings although he would not be a necessary party. This is because it is only the petitioner who will be able to place facts before the Prescribed Authority relating to his hardship. Therefore, the Prescribed Authority committed manifest error when it rejected the application for impleadment specially when the landlords had not alleged the subtenancy to be illegal. I should not be understood as laying down that in all proceedings under section 21 subtenant must be impleaded. Subtenant is not necessary party and, therefore, as application under section 21 cannot be dismissed as incompetent when the subtenant is not impleaded. He is, however, a proper party in view of the law laid down by their Lordships in Shyam Babu's case. 10. It is true that at one stage the petitioner claimed himself to be a tenant of ihe shop and not subtenant and he even filed Suit No. 547 of 1982 against the present landlords for declaration of that status and injunction to restrain the landlords from evicting him in execution of the eviction order passed against the heirs of Abdul Hakeem. That, however, does not alter the legal position. The fact remains that in the claim of tenancy also the element of consent of the landlords was there. 11. The learned counsel for the petitioner rightly submits that the reliance' placed by the learned Additional District Judge on Rupchand's ease' was misconceived, That was a ease under the ordinary law and not wader the present Act. 12. In view of the above finding the ease will have to be remanded to the Prescribed Authority with the direction to implead the petitioner and decide his claim of subtenancy with the Consent of landlords. 12. In view of the above finding the ease will have to be remanded to the Prescribed Authority with the direction to implead the petitioner and decide his claim of subtenancy with the Consent of landlords. Once the Prescribed Authority comes to the conclusion that the petitioner has been a subtenant with the express or implied consent of the landlords, he shall have to compare petitioner's hardship arising from evection from the shop with the hardship of the landlords arising from rejection of their application. 13. In view of the fact that the case is being remanded to the Prescribed Authority, the order of the District Judge becomes infructuous and it is not necessary to quash the same. It is also not necessary in the present proceedings to decide the entitlement of the subtenant who was not a party before th0 Prescribed Authority to maintain appeal under section 22. 14. In view of the above the petition is allowed arid the order dated 9.12.1982, Annexure 2, passed by the Prescribed Authority rejecting the petitioner's application for impleadment is hereby quashed. The Prescribed Authority shall allow the said application and implead the petitioner as an opposite party and thereafter decide the petitioner's claim of being subtenant with the eonsent, express or implied, of the landlords. If he comes to the conclusion that the petitioner is a subtenant with the express or implied consent of the landlords, he shall consider petitioner's hardship visavis the landlord's hardship under the fourth proviso to section 21(1) of the Act. The order of the learned District Judge dated 31.1.1986 has become infructuous and it is not necessary to quash the same. There shall be no order as to costs.