Judgment : S.P. Srivastava 1. BEING aggrieved by an order passed by the Appellate Authority in the proceedings under section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'Act') whereunder allowing the appeal, the application for release of the accommodation in dispute had been granted holding the tenant to be entitled to one year's rent as compensation, he has now approached this Court seeking redress praying for the reversal of the impugned order. 2. THE facts in brief, shorn of details and necessary for the disposal of this case lie in a narrow compass. THE landlord respondents had filed an application seeking release of the accommodation in dispute initiating the proceedings under section 21 (1) (a) of the Act in the year 1982. THE claim of the landlord was contested by the tenant petitioner on various grounds asserting that the alleged need set up by the landlord was not genuine and bonafide and that the tenant was likely to suffer greater hardship as compared to the landlord in the event of the grant of the application, In the objection and the counter affidavit filed by the tenant it had also been asserted that the petitioner was only a co-tenant of the premises in dispute alongwith his younger brother Sri Imamuddin and the status of both these persons was that of tenants-in-common as both of them had inherited the tenancy rights from Mohammad Hussain who was the last tenant and had died on 16-11-1976, THE plea which had been raised was that the landlord had failed to implead Imamuddin and his non-impleadment in the proceedings was fatal. It was asserted that the application for release was not maintainable as framed and was liable to be dismissed on account of the non-joinder of Imamuddin. THE landlord however, denied the claim of the petitioner and had asserted that Imamuddin was not at all a necessary party as he had never been a co-tenant. It is asserted that after the death of Mohammad Hussain, Abdul Sattar alone continued to .occupy the shop and run business therein and has been throughout the sole tenant of the premises in dispute. It was also asserted that Imamuddin was an employee in the Roadways and had never any concern with either the premises in dispute or the business being run therein by Abdul Sattar. It was also asserted that Imamuddin was an employee in the Roadways and had never any concern with either the premises in dispute or the business being run therein by Abdul Sattar. THE landlord further asserted that the need for the accommodation in dispute was genuine and pressing and the landlord was likely to suffer greater hardship as compared to the tenant in the event of the rejection of the application. The prescribed Authority after carefully considering the evidence and the materials on the record, came to the conclusion that the need set up by the landlord was bonafide and genuine. On the question of relative hardships also the prescribed authority recorded a clear cut finding in favour of the landlord. The prescribed authority was of the view that the tenant was not likely to suffer any hardship in the event of the grant of the application for release and also noticed that he was running another business also. 3. ALTHOUGH the findings returned by the Prescribed Authority were in favour of the landlord on both the questions relating to the existence of the genuine and bonafide need and likely hardships yet the release application was dismissed on the ground that the non-impleadment of Imamuddin in the case was fatal as on the death of Mohammad Hussain both Abdul Sattar and Imamuddin betfaroe the tenants-in-common on inheriting the tenancy rights which devolved on them as provided under the Act. The Prescribed Authority, however, did not consider the claim of the landlord that in the facts and circumstances of the case, taking into account the conduct of Imamuddin even if he had become a co-tenant on the basis of inheritance, his tenancy rights were to be deemed to have been surrendered and his non-impleadment was therefore, not at all fatal. 4. THE judgment and order passed by the prescribed authority, rejecting the application for release, in the circumstances indicated above, was challenged by the landlord in an appeal which was heard and disposed of by the appellate authority vide the impugned order. THE appellate authority endorsed and affirmed the findings recorded by the prescribed authority on the questions relating to the need for release being bonafide and genuine as well as on the question relating to the comparative hardships. THE appellate authority endorsed and affirmed the findings recorded by the prescribed authority on the questions relating to the need for release being bonafide and genuine as well as on the question relating to the comparative hardships. THE appellate authority, further, after carefully considering the evidence and the materials on record, reversed the finding of the trial court on the question relating to the effect of the non-impleadment of Imamuddin after recording a clear cut finding that in the facts and circumstances of the case, the tenancy rights of Imamuddin were to be deemed to have been surrendered. After recording a finding of implied surrender of tenancy rights which Imamuddin was alleged to possess, there was no difficulty for the appellate authority for reversing the order passed by the prescribed authority and consequently the release of the accommodation in dispute sought for by the landlord was granted as claimed. I have heard Sri B. D. Mandhyan, learned Counsel for the petitioner and Sri M.A. Qadeer, who has appeared on behalf of the landlord respondents. I have also perused the record carefully. 5. THE learned Counsel for the petitioner has vehemently assailed the concurrent findings recorded by the respondent authorities upholding the claim of the landlord about the need set up by them for the release of the premises in dispute to be genuine, bonafide and pressing and the other finding to the effect that on a comparison of relative hardships in the event of the rejection of the application the landlord was likely to suffer greater hardship as compared to the hardship likely to be suffered by the tenant on the grant of tin application for release. THE concurrent findings on the aforesaid two questions have been recorded after carefully considering the evidence and the materials on the record. THE reasonings elaborately given in the judgment and order of the Prescribed Authority in support of the aforesaid findings which standi affirmed by the Appellate Authority, do not appear to suffer from any such legal infirmity which may justify any interference therein while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. 6. THE reasonings elaborately given in the judgment and order of the Prescribed Authority in support of the aforesaid findings which standi affirmed by the Appellate Authority, do not appear to suffer from any such legal infirmity which may justify any interference therein while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. 6. THE learned Counsel has next contended that the finding recorded by the Appellate Authority on the question of implied surrender of tenancy rights of Imamuddin is manifestly erroneous and has asserted that the non-impleadment of Imamuddin was fatal to the maintainability of the release application and further that the entire proceedings stood vitiated on account of his non- joinder. The learned Counsel for the respondents has asserted that the finding recorded by the Appellate Authority on the question of implied surrender of tenancy rights of Imamuddin is the finding on a question of fact which has been arrived at after appraisal of evidence on the record. He asserted that this finding which is fully supported by the evidence and the materials on the record is not liable to be interfered, with while exercising the jurisdiction under Article 226 of the Constitution of India and consequently no interference in the impugned order is called for. 7. I have given my anxious consideration to the rival contentions of the learned Counsel for the parties. 8. AS noticed by the respondent authorities, the tenancy rights in the premises in dispute wherein the original tenant Mohammad Hussain was carrying on his business had devolved in accordance with the provisions contained in Section 3 of the Act on Abdul Sattar and Imamuddin in the year 1976. The Appellate Authority examined various aspects of the case and the materials brought on record which led it to come to an irresistible conclusion that the tenancy right which had devolved on Imamuddin was to be deemed to have been surrendered and consequently Imamuddin could no longer be treated to be continuing as a co-tenant or tenant-in-common alongwith Abdul Sattar. The surrender of tenancy right may be express or implied. The surrender of tenancy right may be express or implied. An express surrender effectuates the clear and unambiguous intention of the tenant to surrender and yield up his tenancy rights and in such cases, it is a matter of intention of the parties and not a matter of implication of the law but in an implied surrender an intention to surrender is not expressed. It may be inferred by law. It may be an act of the law and takes place independently of and in some cases even inspite of the intention of the parties. The law infers such surrender from the omissions, acts and conduct of the parties. The essence of implied surrender is more than often a question of fact depending on the intention of the parties. Their intention is to be inferred from their conduct. Implied surrender may ultimately to inferred from the conduct of the parties and the circumstances of the case. As observed by the Apex Court in its decision in the case of Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malage, 1976 (3) SCC 660 , the relinquishment of possession operates as implied surrender. It was clarified by the Apex Court therein that implied surrender by operation of law occurs by the creation of a new relationship or by relinquishment of possession. 9. IN the present case, the petitioner had come up with the plea that he was not the sole tenant of the shop in dispute bub was only a co-tenant and the other co-tenant was his younger brother viz. Sri Imamuddin whose status was that of a tenant-in-common. It was admitted in paragraph 3 of the counter affidavit filed by the petitioner before the Prescribed Authority that Khuda Bux, the predecessor in interest of the landlord did not recognise Imamuddin as tenant and accepted rent from the petitioner. However it was further asserted by Abdul Sattar in the aforesaid counter affidavit that later on both were recognised as tenants-in-common and rent was paid but no receipt was issued. Imamuddin the younger brother of the petitioner who was alleged to be a co-tenant had put in appearance in the case and had filed an affidavit dated 5-5-1982. IN his affidavit. Imamuddin the younger brother of the petitioner who was alleged to be a co-tenant had put in appearance in the case and had filed an affidavit dated 5-5-1982. IN his affidavit. Imamuddin asserted himself to be tenant-in-common with Abdul Sattar and claimed that the rent was being paid jointly and he was carrying on business in the shop jointly with Abdul Sattar and it was incorrect to say that he has no concern with the shop in dispute. The appellate authority, as has been indicated hereinbefore, disbelieved the claim of Imamuddin holding that Imamuddin had never any concern with the premises in dispute and had throughout been in employment in the Government Roadways and the assertion that he was running business jointly with Abdul Sattar in the premises in dispute was totally incorrect. The Appellate Authority had taken into consideration the fact that Imamuddin having put in appearance in the case never sought for an impleadment therein and never took any interest or step for contesting the claim of the landlord on merits. As has already been indicated above an implied surrender of tenancy rights can be evidenced by conduct, relinquishment of possession and further by non assertion of tenancy rights, non payment of rent etc. On the findings recorded by the Appellate Authority, it is apparent that Imamuddin had never asserted his alleged tenancy rights and had never been in actual occupation of the premises in dispute. There is absolutely no evidence on record to show that he ever paid rent to the landlord. There is further no evidence . on the record to show that while continuing to be in service in the Government Roadways, he ever took any interest or part in the business being run in the premises in dispute or ever shared any profit which accrued from the said business. While it is true that mere abandonment of possession by a co-tenant does not per-se amount to surrender of tenancy rights but surrender of tenancy rights can very well be implied from the conduct of the parties, any overt act or inaction, which in the facts and circumstances of a particular case leads to an inevitable inference of merger and passing off the estate of a surrenderer to and into that of the surrendered. 10. 10. AT this stage it may also be noticed that the Apex Court in its decision in the case of Smt. Rani Devi v. Bholenath, 1992 AWC 250, had upheld the findings recorded by the Rent Appellate Tribunal about extinguishment of tenancy rights of a co-tenant/tenant-in-common by implied surrender inferred as a necessary implication from the facts brought on record of that case, where the married daughters of the deceased tenant were alleged to be tenants-in-common having inherited tenancy rights but it was not disputed that the married daughters never participated nor claimed interest in the business being run in the premises in dispute by one co-tenant who had inherited the tenancy rights alongwith the daughters on the tenant's death In the aforesaid decision it was observed that certainly the daughters were tenants within the meaning of section 3 (a) (2) of the U. P. Act No. 13 of 1972 and were entitled to succeed the tenant's lease hold rights under the Act including not merely to the liabilities to pay rent but also to continue the business until duly ejected as per the previsions of the Act. Their non impleadment in the proceedings, however was considered immaterial and was held that it did not vitiate the action or maintainability of the proceedings for ejectment itself as in the circumstances, their co-tenancy rights will be deemed to have been impliedly surrendered by necessary implication. It is therefore, obvious that the mere fact that tenancy rights had devolved on Imamuddin was not at all sufficient by itself to vitiate the proceedings or make it non maintainable on account of his non joinder in face of the finding returned by the Appellate Authority to the effect that the tenancy rights of Imamuddin were to be deemed to have been surrendered by necessary implication. 11. LEARNED counsel for the petitioner has then contended that in the year 1981, the present landlord had filed S.C. suit No. 95 of 1981 impleading Abdul Sattar only as a defendant therein claiming his ejectment from, the premises in dispute and recovery of arrears of rent and damages for the use and occupation etc, which suit had been dismissed on 5-12-1989. It is urged that in the aforesaid suit an issue had been framed as to whether Abdul Sattar was the sole tenant or was a tenant-in-common on which issue a finding was returned that Abdul Sattar, was only a tenant-in-common and his other brother was also a tenant-in-common of the premises in dispute. On the strength of this finding returned in the judgment passed by the Judge Small Cause Court dated 5-12-1989, it is asserted that this finding being later in point of time, the finding of the Appellate Authority recorded in its impugned judgment dated) 10-10-1985 is liable to be reversed and in any case, the later finding should prevail. The contention is that in care, the finding recorded by the Judge Small Cause Courts in Original Suit No. 95 of 1981 holding Imamuddin to be a tenant-in-common is taken into account as binding between the parties in that event, the impugned order of eviction of the petitioner from the premises in dispute has to be treated as vitiated in law. From a perusal of the judgment and order passed by the Judge Small Causes Court on which the learned counsel for the petitioner has placed heavy reliance and a true copy whereof has been filed along with the rejoinder-affidavit, it is apparent that in that suit Abdul Sattar had claimed benefit of section 20 (4) of the Act and granting the said benefit, the trial court had relieved him of the decree of eviction. Section, 20 (4) of the Act is to the following effect :- "20 (4)-In any suit for eviction on, the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlords' costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground." 12. THIS Court in its decision in the case of Sumer Chand v. Atma Ram, 1979 (U.P.) RCC 340, had clarified that the provisions of clause (4) of section 20 of U. P. Act No. 13 of 1972 were mandatory in character inspite of the use of the word "may" therein and that this word has been used in the aforesaid provision in the sense of the word "shall". THIS Court had further indicated in its aforesaid decision that the benefit of clause (4) of section 20 of the Act could not be denied, if the tenant had fulfilled the requirement of that sub-section. I do not find any reason to disagree with the aforesaid view of the learned Single Judge and respectfully agree with the same. In such a situation when a defendant in the suit for ejectment and recovery of arrears of rent etc. from a premises which is covered by the provisions of U. P. Act No. 13 of 1972 claims and is granted a benefit envisaged under section 20 (4) of the aforesaid Act, the Court has, to pass an order relieving the tenant against his liability for eviction on a ground mentioned in clause (a) of sub-section (2) of section 20 which covers a ground for eviction on the basis of arrears of rent and default in payment thereof in the circumstances mentioned therein. Once the benefit is granted to a tenant as" indicated above and he is to be relieved of the decree of. eviction, in that event, no other issue survives for decision, and it is wholly unnecessary to embark upon inquiring into any other issue relating to the effect of nonjoinder of a necessary party in the suit when on the grant of the benefit as envisaged under section 20 (4), the suit is bound to fail on. the deposit being made as required therein. the deposit being made as required therein. Moreover it cannot be lost sight of that the order passed by the appellate authority on 10-10-1985 granting release and directing Abdul Sattar to vacate the premises in dispute within a month from the date of the order is attached with a statutory finality as contemplated under section 10 read with section 22 of the Act The order of eviction granted in the proceedings under section- 21 of the U. P. Act No. 13 of 1972 cannot be called in question in any court and the provisions contained in section 37 of the Act specifically debar the Civil Court from doing so. The purpose behind the provisions contained in section 37 of the Act is to ensure that the orders passed in the exercise of any power conferred by or under the Act shall be exempted from challenge in the civil court as regards the sufficiency of grounds and propriety and this bar is enacted to exclude to judicial scrutiny of any order passed by any authority in exercise of any power conferred by or under the Act as regards to the correctness or properiety thereof by any ordinary civil court. However, the civil Court cannot be deemed to be debarred from scrutinising the validity of the order challenged on the ground of inherent lack of jurisdiction. 13. IN the aforesaid view of the matter, in all fairness, the parties ought to have brought to the notice of the Judge Small Causes Court, the finding returned by the competent Appellate Authority on the question of extinguishment of the tenancy rights of Imamuddin accepting the claim of the landlord on the basis of implied surrender and the finality attached to the order of eviction passed in the proceedings under section 21 of the U.P. Act No. 13 of 1972 and further the statutory finality attached thereto. 14. 14. IN the facts and circumstances of the present case, taking into consideration, the implications arising under the provisions contained in U.P- Act No. 13 of 1972 and the statutory finality attached to the order passed thereunder determining the rights and liabilities of the parties to the proceedings therein in the matter relating to the release of the accomodation, the petitioner cannot' derive any advantage or benefit out of the finding of the Judge Small Causes Court referred to herein above on which strong reliance is now sought to be placed. It is, however, contended by the learned Counsel for the petitioner that the finding recorded in the decision in S.C. suit No. 95 of 1981 by the Judge Small Causes Court in the judgment dated 5-12-1989 disposing of that suit where under non joinder of Imamuddin in the suit was held to be fatal to the maintainablity of the suit and the plea of Abdul Sattar in that regard had been accepted clearly attracted the bar of res-judicata and in this view of the matter, since as compared to the decision of the appellate authority impugned in the present case, the decision on this issue in the suit referred to above was of a date later in point of time, it was asserted that while deciding the present writ petition, the finding in the judgment dated 5-12-1989 should be taken into account ignoring the finding of the appellate authority in a former proceeding. In this connection, the learned Counsel for the petitioner has placed heavy reliance on the observations occurring in the full Bench Decision of this Court in the case of Raghunath v. Ram Khelawan, AIR 1970 Alld. 26, wherein it has been observed that it is trite that in a case of res-judicata it is later decision and not the former which creates the bar. 15. THE learned Counsel has further urged that if the final decision in any matter in issue between the parties is based by a Court en more than one point each of which by itself would be sufficient for the ultimate decision, the decision of each of these points operate as res-judicata between the parties. Reliance has been placed in support of this contention on the decision o? Reliance has been placed in support of this contention on the decision o? the Apex Court in the case of Bitthal Yashwant Jathar, Sikandar Khan Makhdoom Khan Sar Desai, AIR 1963 SC 385 and in the case of Gangappa Guru Padappa Gugwad v. Bachwwa, AIR 1971 S.C. 442 . 16. A Full Bench of this Court in its decision in the case of Udai Bhan Singh alias Babban Singh v. Board of Revenue, U.P., 1974 RD 107, while relying upon the decisions of the Supreme Court in the case of Ramesh. v. Gendalal Motilal Patni, AIR 1966 SC 1445 and in the case of The Ahmedabad Manufacturing and Calico Printing Co. Ltd. v. Ramanand, AIR 1972 SC 1598 , held that a proceeding under Article 226 of the Constitution of India is not a continuation of the suit or proceeding giving rise to it. It furher held that if a writ petition is not a continuation of the original suit or proceeding unlike an appeal or revision, the inference is not only reasonable but inevitable that the orders passed in the original suit or proceeding or in an appeal or revision arising therefrom do riot merge in the orders passed in such petition. In the case of the Ahmedabad Manufacturing and Calico Printing Co. Ltd. (supra), the Constitution Bench of Honourable Supreme Court had made it clear that an appeal or revision is a continuation of the original suit or proceedings and while explaining the nature of jurisdiction envisaged under Article 226 of the Constitution of India, the Apex Court had observed as follows : "................Under that jurisdiction, the High Court does not hear an appeal or revision.................The controversy / in the High Court, in a proceeding arising under. Article 226 of the Constitution of India ordinarily is, whether a decree or a proceedings before a Court or Tribunal or Authority should be allowed to stand or should be quashed for want of jurisdiction or on account of errors of law apparent on the face of the record..........." 17. Article 226 of the Constitution of India ordinarily is, whether a decree or a proceedings before a Court or Tribunal or Authority should be allowed to stand or should be quashed for want of jurisdiction or on account of errors of law apparent on the face of the record..........." 17. THIS Court in its decision in the case of M/s. Pharma Traders v. VII Additional District Judge Kanpur Nagar, 1992 (2) ARC 592, after noticing several decisions of the Apex Court had observed that there could be no manner of doubt that a supervening fact having a fundamental impact can be taken notice of in a proceeding whether it be of an appeal or revision, wherein the appellate or revisory authority exercises the same jurisdiction as is exercisable by the original authority or Court, to mould the relief only, and that the basis of this appears to be that an appeal or revision, in such a case would be nothing else but a continuation of the suitor the original proceedings and the appellate or revisory authority can correct any mistake in the decree or order passed by the original authority or the trial Court and further can substitute its own decree or order in place of the one passed by the trial Court or the original authority. It was further indicated in the aforesaid decision that the proceedings contemplated under Article 226 of the Constitution of India could not be put at par with such appellate or revisory proceedings. Reliance was placed on a decision of the Apex Court wherein it was observed that the Court could not take into consideration subsequent events when the decree or order for eviction had attained finality. 18. IN the facts and circumstances of the present case, it is apparent that the impugned order passed by the appellate authority in the proceedings under section 21 (1) (a) of U. P. Act No. 13 of 1972 was passed on 10-10-1985, The decision of the trial court on which reliance is being placed by the petitioner is dated 5-12-1989. 18. IN the facts and circumstances of the present case, it is apparent that the impugned order passed by the appellate authority in the proceedings under section 21 (1) (a) of U. P. Act No. 13 of 1972 was passed on 10-10-1985, The decision of the trial court on which reliance is being placed by the petitioner is dated 5-12-1989. Obviously therefore, the finding on the issue relating to the continuance of Abdul Sattar alone as the sole tenant of the premises in dispute recorded by the appellate authority in exercise of his exclusive jurisdiction under the provisions of U. P. Act No. 13 of 1972 had attained finality much before the decision of the Civil Court referred, to above. It is for the first time during the pendency of the writ petition that the petitioner has filed a copy of the judgment passed by trial court in original suit No. 95 of 1981 along with his rejoinder affidavit. The copies of the pleadings in the aforesaid case were however, not filed. The claim in the proceedings under section 21 of the U. P. Act No. 13 of 1972 and in the suit No. 95 of 1981/decided later in point of time as is apparent from a perusal of the judgment dated 5-12-1989 do not appear to have been founded on the same cause of action which is necessary to attract the application of the doctrine of res-judicata. As has already been indicated hereinbefore, taking into consideration the provisions contained in the U. P. Act No. 13 of 1972, the Civil Court had no jurisdiction to come to a conclusion contrary to the one reached by the appellate authority in the proceedings under section 21 (1) (a) of the said Act specially when the jurisdiction of the appellate authority in this regard is not challenged in any manner. The finding of the appellate authority in question stood exempted from challenge in the Civil Court as regards the sufficiency of the ground on which it was passed and its propriety. In this view of the matter, the finding of the Civil Court on which strong reliance is being placed was clearly without jurisdiction. This finding being a nullity, no plea of res-judicata could be founded upon it. 19. In this view of the matter, the finding of the Civil Court on which strong reliance is being placed was clearly without jurisdiction. This finding being a nullity, no plea of res-judicata could be founded upon it. 19. IN view of what has been indicated hereinbefore, the submissions of the learned counsel for the petitioner have no merit and are not acceptable. 20. HAVING heard the learned Counsel for the parties at some length and having considered the peculiar facts and circumstances of the present case, I am clearly of the view that no ground at all has been made out for the intervention of equity while exercising the extra-ordinary jurisdiction envisaged under Article 226 of the Constitution of India. In the result in view of the conclusions indicated hereinbefore, this writ petition fails and is hereby dismissed without there being any order as to cost. Petition dismissed.