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2004 DIGILAW 796 (ALL)

Ram Kunwar v. IInd Additional District Judge

2004-04-09

TARUN AGARWALA

body2004
JUDGMENT : TARUN AGARWALA, J. 1. By means of this petition, the Petitioners have challenged the order dated 1.7.1987 passed by the Judge Small Cause Court, Banda, and the revisional order dated 23.3.1988 whereby the suit of the landlady for eviction of the Petitioners on the ground of subletting and material alteration was decreed. 2. The facts of the case are that the landlady, Respondent No. 3 filed a suit for ejectment of the Petitioners alleging that the Petitioner No. 1 was the tenant and that he was in arrears of rent w.e.f. 30.12.1981 and that he did not pay the rent inspite of repeated demands. It was also alleged that the tenancy of the Petitioner No. 1 was for residential purposes, but the accommodation was being used for business purposes. It was also alleged that the Petitioner No. 1 had sublet the premises in question to Petitioner No. 2, who was using the premises for his business purposes in the name and style of "Rai Light House". The landlady further submitted that the Petitioner No. 1 had constructed a kiosk in front of the house and thereby, caused material alteration which not only diminished the value of the building, but also disfigured it. 3. The Petitioners contested the suit and filed a joint written statement denying all the allegations made by the landlady. The Petitioners submitted that the tenancy was both for residential as well as for business purposes and that no material alteration in the building was ever caused by them. It was also submitted that the Petitioner No. 2 is the uterine brother of Petitioner No. 1 and that he had been living with Petitioner No. 1 since birth and that the business in the name of "Rai Light House" was being done by the Petitioner No. 1 with the help of his sons along with the Petitioner No. 2 and, therefore, there was no question of any subletting. The Petitioners further submitted that there was no default in the payment of the rent. The rent was being sent by Money Order, which was refused by the landlady. 4. The Judge Small Causes Court decreed the suit for ejectment on the ground of subletting and on the ground of material alteration. The Petitioners further submitted that there was no default in the payment of the rent. The rent was being sent by Money Order, which was refused by the landlady. 4. The Judge Small Causes Court decreed the suit for ejectment on the ground of subletting and on the ground of material alteration. The Judge Small Causes Court held that the Petitioner No. 1 was not a defaulter in the payment of rent and that the premises was not given exclusively for residential purposes. However, the Judge Small Cause Court held that the notice given by the landlady terminating the tenancy was valid and that the Defendant No. 2 had sub-let the premises to the Petitioner No. 2. The trial court further held that the construction of the kiosk caused material alteration and had disfigured and diminished the value of the building. 5. Aggrieved by the order of ejectment passed by the Judge Small Causes Court, the Petitioners filed a revision, which was also dismissed. 6. The question that arises for consideration in the present writ petition is whether the Petitioner No. 1 had sub-let the premises to the Petitioner No. 2 and whether the construction of the kiosk had caused material alteration in the building or not? 7. Heard Sri. S.K. Shukla the learned Counsel for the Petitioners and Sri. J.B. Singh, the learned Counsel for the landlady-Respondent No. 3. 8. The learned Counsel for the Petitioners submitted that there was no question of sub-letting the premises inasmuch as the Petitioner No. 2 was the uterine brother of Petitioner No. 1 and that the Petitioner No. 1 was doing the business in the name of "Rai Light House" along with the help of his sons and Petitioner No. 2. The learned Counsel for the Petitioners submitted that the construction of a kiosk in front of the building did not cause any material alteration nor it diminished the value of the building nor disfigured it. 9. The contention raised by the learned Counsel for the Petitioners is wholly devoid of any merit and is liable to be rejected. It may be sated that Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') imposes a restriction on the rights of the landlord to institute a suit for eviction of the tenant except on certain grounds as provided therein. It may be sated that Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') imposes a restriction on the rights of the landlord to institute a suit for eviction of the tenant except on certain grounds as provided therein. Section 20(2)(c) and Section 20(2)(e) of the Act reads as under: 20(2)(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it ; (e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be of the old Act the whole or any part of the building ; 10. Thus, a tenant can be evicted on the ground of raising construction without seeking previous permission in writing from the landlord and which has caused material alteration in the building or where the tenant has sub-let the building in contravention of the provisions of Section 25 of the Act. Section 25 of the Act reads as under: 25. Prohibition of sub-letting.-(1) No tenant shall sub-let the whole of the building under his tenancy. (2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building. Explanation.-For the purposes of this section: (i) where the tenant ceases, within the meaning of Clause (b) of Sub-section (1) or Sub-section (2) of Section 12, to occupy the building or any part thereof he shall be deemed to have sub-let that building or part ; (ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting. 11. Section 12(1)(b) of the Act reads as under: 12. Deemed vacancy of building in certain cases.-(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if: (b) he has allowed it to be occupied by any person who is not a member of his family. 12. 11. Section 12(1)(b) of the Act reads as under: 12. Deemed vacancy of building in certain cases.-(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if: (b) he has allowed it to be occupied by any person who is not a member of his family. 12. From the aforesaid provisions of the Act, it is clear that where a tenant of the building has allowed it to be occupied by any person, who is not a member of his family, the tenant ceases to occupy the building or any part thereof and the tenant shall be deemed to have sub-let that building. 13. From the evidence led by the parties, it is clear that the Petitioner No. 1 was the tenant of the landlady and Petitioner No. 2 was the uterine brother of Petitioner No. 1. It has also come on record that the Petitioner No. 1 was not residing in the premises in dispute and was working in Jhansi and that the Petitioner No. 2 was doing the business in the name and style of "Rai Light House" from the premises in question as a sole proprietor. 14. The question that is to be considered is whether the Petitioner No. 2 being a brother of Petitioner No. 1 is a member of the family as contemplated u/s 3(g) of the Act, which reads as under: 3(g) "family" in relation to a landlord or tenant of a building, means, his or her: (i) spouse ; (ii) male lineal descendants ; (iii) such parents, grand-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her ; and includes, in relation to a landlord, any female having a legal right of residence in that building. 15. Admittedly, the tenancy was in the name of Petitioner No. 1. It is not a case that the tenancy was inherited by the Petitioners. Therefore, uterine brother does not come within the meaning of word "family" as defined u/s 3(g) of the Act. In Smt. Ram Sarni Devi v. Smt. Ralsa Begum and Ors. 1978 ARC 103, it has been held that the brother of the tenant is not a member of the family. Similar view was expressed in Mahendra Sen Jain and Anr. Therefore, uterine brother does not come within the meaning of word "family" as defined u/s 3(g) of the Act. In Smt. Ram Sarni Devi v. Smt. Ralsa Begum and Ors. 1978 ARC 103, it has been held that the brother of the tenant is not a member of the family. Similar view was expressed in Mahendra Sen Jain and Anr. v. Ratanlal and Anr. 1978 AWC 552 and in Shahid Ali and others Vs. Judge, Small Causes Court, Moradabad and others, (1998) 1 AWC 166 . 16. In view of the aforesaid, even though the Petitioner No. 2 is a uterine brother of Petitioner No. 1, he could not come under the parameters of a 'member of the family' as defined u/s 3(g) of the Act. It is also an admitted position that the Petitioner No. 2 was doing the business in the capacity of a proprietor. It has also come on record that the Petitioner No. 1 was not residing in the premises in dispute and was working in Jhansi. Thus, it is a clear case that the Petitioner No. 1 has sublet the premises to Petitioner No. 2 in violation of the provision of Section 25 of the Act and was therefore the Petitioners were liable for eviction u/s 20(e) of the Act. 17. Both the courts below have held that the construction of a kiosk in front of the building has caused material alteration and has diminished its value and has also disfigured it. The finding of the material alteration given by the courts below are findings of fact, which cannot be interfered in the writ petition. Therefore, the Petitioners are also liable to be evicted from the premises in question. 18. In view of the aforesaid, there is no merit in the writ petition and is dismissed with cost.