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1996 DIGILAW 692 (ALL)

Purushottam Das Tandon v. Harijan Sewak Sangh

1996-05-24

ALOKE CHAKRABARTI

body1996
Judgment : Aloke Chakrabarti 1. THIS revision is against the judgment and decree dated 21.2.1986 in Suit No. 147 of 1971 of the Court of IInd Addl. District Judge, Allahabad (as Judge of Small Causes). 2. LEARNED counsel for the revisionist mainly raised two contentions. First contention is relating to the decision in the impugned judgment and decree on issue No. 2. The issue No. 2, as raised, is "whether the notice served by the plaintiff is a valid notice?" In the judgment, it has been found that the plaintiff has based his claim of the suit not only on the notice dated 9.8.1971 referred to in the plaint, but also on previous several notices and that of a subsequent notice dated 11.6.1971. It has further been held that the cause of suit is based on subsequent notice which has not been given before the suit was filed, the entire suit is liable to fail, and under the circumstances, the learned Judge found that the notice to quit and demand is invalid and issue has been decided against the plaintiff. 3. FROM the original record, it appears that the suit was filed on 4.11.1971. The pleadings in the plaint also show that the cause of action of the suit arose on 9.8.1971, the date of notice and on 12.9.1971 when the period of notice expired for ejectment and in August, 1970 and the following months for arrears claimed within the jurisdiction of the Court. 4. LEARNED counsel for the revisionist contended that the notice being dated 9th August, 1971 and the period expiring on 12.9.1971, the suit filed on 4.11.1971 was not based on a notice issued subsequent to the filing of the suit. LEARNED counsel for the opposite parties also could not show any material from record justifying a finding that the suit was based on subsequent notice which had not been given before the suit was filed. In the aforesaid circumstances, I am of the opinion that the learned Judge in the Court below erred in deciding the issue No. 2 and in fact there was no defect in the said suit by reason of the notice on which the suit was based. 5. THE next contention of the learned counsel for the revisionist was with regard to the findings in the impugned judgment relating to issue Nos. 6 and 17. 5. THE next contention of the learned counsel for the revisionist was with regard to the findings in the impugned judgment relating to issue Nos. 6 and 17. THE said two issues, as raised in the suit, run as follows : "(6) Whether defendant Nos. 1 to 3 had sublet the premises to the defendant No. 6 without the permission or knowledge of the plaintiff? If so, its effect? (17) Whether defendant No. 6 is lessee or sub-lessee?" 6. LEARNED counsel for the revisionist contends that the plaintiff- ' revisionist had been deprived of the decree for eviction on wrong principle. It has been contended that the learned Judge in the Court below came to a finding that the tenancy was given to Harijan Sewak Sangh, the defendant No. 1 and that the premises was occupied by the Allahabad Polytechnic, the defendant No. 6 which is admittedly a separate society and it has its separate entity. The decree for eviction on the ground of sub-letting was refused solely for the reason that the landlord-plaintiff did not take any step for about nine years to file the suit for ejectment for such sub-letting and this raised an inference of implied consent in the act of sub-letting. For such conclusion, reliance was placed upon the law laid down in the case of Smt. Shyam Kumari Gupta v. Shankar Sahai, 1982 ALJ 916. Learned counsel for the revisionist contended that neither the knowledge of the plaintiff in the matter of sub-letting for a long time has been proved nor passage of time after knowledge of sub-letting can lead to a presumption of consent. 7. IN support of such contentions on behalf of the revisionist, reliance was placed on the judgment in the case of Smt. Maya Devi Tripathi and others v. IVth Addl. District and Sessions Judge, Kanpur and others, 1987 (1) ARC 412 and the case of Bundo v. Akbar Ali, 1978 UPRCC 215. j 8. ON behalf of the revisionist, it has also been contended that the case of Smt. Shyam Kumari Gupta (supra) was decided in the facts of the said case which are apparently distinguishable from the present case. District and Sessions Judge, Kanpur and others, 1987 (1) ARC 412 and the case of Bundo v. Akbar Ali, 1978 UPRCC 215. j 8. ON behalf of the revisionist, it has also been contended that the case of Smt. Shyam Kumari Gupta (supra) was decided in the facts of the said case which are apparently distinguishable from the present case. In the case of Shyam Kumari Gupta (supra), the relevant fact was that the landlord issued a notice for eviction complaining about sub-letting and thereafter took no further action thereby allowing sub-tenant to continue in occupation and after four years, suit was filed for eviction on the ground of illegal sub-letting. In such facts, implied consent of landlord to sublet was inferred. Learned counsel for the opposite party No. 6, Allahabad Polytechnic referred to various documents from the record of the suit for the purpose of showing that the Allahabad Polytechnic was existing for a long time and was in occupation of the premises in question and on the basis of such document, presumption of consent of landlord for sub-letting is to be inferred. 9. LEARNED counsel further contended that the law decided in the case of Shyam Kumari (supra) was rightly relied upon by the Court below in inferring the consent of the landlord in the sub-letting. 10. AFTER considering the respective contention of the parties, I am of the opinion that in the facts of the present case, no material could be shown leading to a conclusion that the landlord had knowledge about sub-letting in favour of Allahabad Polytechnic. Moreover, the law decided in the case of Smt. Maya Devi Tripathi will apply even if knowledge of the landlord is so presumed. In this connection, a reference may be made to the fact that the learned counsel for the opposite party could not show any material conclusively proving as to from which date the landlord had knowledge about the sub-letting. In such circumstances, the decree could not be refused on the ground of sub-letting. I am further of the opinion that the case of Shyam Kumari (supra) does not apply in the facts of the present case as in the said other case, the landlord admittedly had knowledge and issued a notice to quit and filed a suit after long period of four years. I am further of the opinion that the case of Shyam Kumari (supra) does not apply in the facts of the present case as in the said other case, the landlord admittedly had knowledge and issued a notice to quit and filed a suit after long period of four years. In the aforesaid circumstances, as the suit is a very old one having been filed in 1971, I am of the opinion that sending the matter back to the Court below will unnecessarily delay the proceeding particularly when all the materials are available on record. In the circumstances, the revision is allowed. Judgment and decree dated 21.2.1986 in suit No. 147 of 1971 in the Court of IInd Addl. District Judge is modified to the extent that the plaintiff's suit for ejectment of the defendant from the premises in question is decreed.