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1988 DIGILAW 386 (ALL)

Baba Jawahar Singh Sardar v. Mohan Lal Aggarwal

1988-04-12

A.P.MISRA

body1988
JUDGMENT A.P. Misra, J. - The present revision is directed as against an order dated 7th August, 1984, passed by the Judge, Small Causes, by virtue of which the plaintiff's suit for eviction and arrears of rent were decreed. 2. The plaintiff filed a suit for the recovery of arrears of rent and possession over the disputed premises against defendants. The plaint allegations were that the defendant No. 1 was admittedly the tenant in respect of eight rooms, four kitchens, four bath rooms, two lavatories on the ground floor at the monthly rental of Rs. 400; that there was an agreement between the plaintiff and the defendant No. 1 that the latter would pay electricity charges besides sewerage tax. The defendant No. 1 had also settled with the plaintiff that he could keep sub-tenant in the aforesaid premises, but the defendant No. 1 would remain tenant and will be solely responsible for payment of rent and taxes to the plaintiff. It is the admitted case of the parties that the defendant No. 1 subsequently kept defendant No. 2 as a sub-tenant in the part of the premises in question. Since the defendant fell in arrears of rent a registered notice dated 27th September, 1982, was sent by the plaintiff-respondent for arrears of rent and determining his tenancy. It seems that some amount was sent by the defendant No. 2 by the means of bank drafts dated 9th December, 1982, 9th October, 1982 and 4th November, 1982. However, since the amount fell short of the total arrears as claimed by the plaintiff he did not accept the drafts and returned it to the defendant No. 2. It is thereafter, the instant suit was filed for eviction and for arrears of rent. 3. The trial Court held that in this case the defendant No. 1 was the tenant and admittedly the total rent due were not paid inspite of the notice. Therefore, the defendants were liable for eviction and for arrears of rent. It is relevant to mention here that the defendant No. 1 did not contest and almost admitted the claim made by the plaintiff. It is defendant No. 2 who alone is contesting the matter and is the application before this Court in the present revision application. 4. I have heard the learned counsel for the parties and perused the records. 5. It is defendant No. 2 who alone is contesting the matter and is the application before this Court in the present revision application. 4. I have heard the learned counsel for the parties and perused the records. 5. The main ground of attack by the plaintiff in the present revision is that there was a privity of contract between defendant No. 2, viz. the present applicant and the plaintiff and since he was continuing as a tenant for almost more than nine years with the consent of the plaintiff-opposite party, there was privity between him and the plaintiff and finding to the contrary arrived at by the trial Court is wrong and liable to be set aside. He has also raised a feeble argument that he has paid all the amounts which fell in arrears including water tax and sewerage tax to the extent the plaintiff paid that amount to the Local Authority for the relevant period concerned. The law is very clear. It is not an amount which is being paid by the landlord, but it is the whole amount due to the Local Authority and is the liability of the tenant also. Unless it is paid the tenant cannot be absolved of the responsibility on the ground of the landlord was not paying the amount due to the local bodies. Thus, admittedly in sending the demand drafts as the total amount fell short of the arrears demanded the finding recorded by the trial Court does not suffer from any illegality, which calls for any interference by this Court. Subsequently, it is urged that there was privity of contract between him and landlord directly and he was a tenant and not a sub-tenant. The argument is without any force. The trial Court rightly held that the applicant was inducted to the tenancy only on the basis of an agreement between plaintiff and the defendant No. 1 that he can induct a sub-tenant of his choice in the part of the premises in dispute. It is not in dispute that initially he was inducted in the disputed premises by the defendant No. 1 in pursuance to the said clause of the agreement. The argument was that at the time of the signing of the said agreement since the defendant No. 2 was also present, it amounts consent of the plaintiff. It is not in dispute that initially he was inducted in the disputed premises by the defendant No. 1 in pursuance to the said clause of the agreement. The argument was that at the time of the signing of the said agreement since the defendant No. 2 was also present, it amounts consent of the plaintiff. It is not in dispute that the plaintiff did consent for induction of defendant No. 2 as a sub-tenant but that consent cannot be treated to be a consent for a tenant. Thus the argument on account of the defendant No. 2 being present and there being consent of the plaintiff he should have been treated as a tenant, cannot be sustained. In view of the agreement and in view of the facts and circumstances of the present case and in view of the findings recorded by the trial Court, defendant No. 2 could not be treated to be tenant but only a sub-tenant. The further argument was that even if he was a sub-tenant a notice should have been issued and given by the landlord. For this reliance was placed in the case Shyam Babu v. District Judge, Moradabad and others, AIR 1984 Supreme Court 1399. It is urged that even a sub-tenant is required to be given a notice. Without going into merits and the legal point raised in this case on the facts of the present case finding has been recorded that in fact notice was also served on the said tenant. He having actually received that notice dispatched the demand draft for payment to the landlord concerned in pursuance to the said notice by the plaintiff it cannot be said that there was no notice to the sub-tenant and thus even this point is not sustainable. 6. In view of the aforesaid findings I do not find any infirmity in the judgment in the trial Court and it does not suffer from any jurisdictional error which calls for exercise of revisional powers by this Court. 7. Accordingly, this revision is dismissed being devoid of any merit. Costs on parties.