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Allahabad High Court · body

2010 DIGILAW 1040 (ALL)

Iftikhar Husain v. Iii Addl. District Judge

2010-03-30

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. Heard learned counsel for the parties. 2. This petition by the tenant is directed against concurrent judgments dated 30.5.1991 and 18.2.1995 by which the suit for eviction and arrear of rent together with taxes have been decreed by both the courts below. 3. The respondent landlord instituted Suit No.137 of 1983 before the Judge, Small Causes Court, Gorakhpur inter alia with the allegation that Abdul Samad, the father of the petitioner was a tenant in the disputed premises and on his death, the petitioner became tenant thereof, but he had defaulted in payment of rent @ Rs.100/- per month w.e.f. Ist August 1980 together with water tax etc. from 15.7.1972 and despite demand, they did not pay the same or vacated the premises. Thus, he preferred the aforesaid suit claiming rent from 1.8.1980 upto date together with water and other taxes w.e.f. 15.7.1972. During pendency of the suit, the other co-tenants, sons of Abdul Samad made an application for impleadment as co-tenants which application was allowed and they also filed their written statements. After evidence of the landlord was closed, despite several opportunities the defendants did not lead their evidence and as such an order was passed to proceed against them exparte. Even thereafter they did not appear to cross examine the witnesses produced on behalf of the landlord whereafter the suit was decreed with the finding that the tenant had committed default as contemplated under the U.P. Act No.13 of 1972 and since they did not deposit the entire rent, they were not entitled to get the benefit of sub-Section (4) of Section 20 of the Act. The petitioner filed Revision No.160 of 1991 without impleading his other co-tenants who preferred Revision No.165 of 1991. It appears that the petitioner kept on getting his revision adjourned but the revision of the co-tenants was dismissed vide order and judgment dated 31st July 1992. Consequently, the revision of the petitioner was also dismissed by the impugned order. 4. It is firstly urged that during pendency of the revision, one of the co-landlords Smt. Geeta Devi had entered into a compromise and accepted the rent and this aspect has not been considered by the courts below and therefore, the order is vitiated. 5. Admittedly, the original tenant was Abdul Samad, who had six sons including the petitioner. 4. It is firstly urged that during pendency of the revision, one of the co-landlords Smt. Geeta Devi had entered into a compromise and accepted the rent and this aspect has not been considered by the courts below and therefore, the order is vitiated. 5. Admittedly, the original tenant was Abdul Samad, who had six sons including the petitioner. On his death all of them became co-tenants and they contested the suit by filing their respective written statements. 6. The suit was decreed on 30.5.1991 and the revision of the other six co-tenants being Revision No.165 of 1991 was dismissed on merits vide order dated 31st July 1992 which had become final. Once the eviction order had become final even if it was passed against a co-tenant, would bind? all other co-tenants as their interest is common. Since the decree of eviction had become final, there was no question of the petitioner entering into a compromise with one of the several co-landlords on 9.2.1995. Apart from that, the decree of eviction was not severable. Thus, the court below was fully justified in ignoring the alleged compromise. 7. It is then urged that on the receipt of the notice, the petitioner had sent a money order which was refused and entire rent had also been deposited, therefore, the benefit of sub-Section (4) of Section 20 of the Act ought to have been extended. 8. This argument also is bound to be rejected for the same reason as given herein above. Further, it is apparent from the judgment that the entire amount including the water tax etc. was never paid to the landlords and therefore, the petitioner was not entitled to the benefit of sub-Section (4) of Section 20 of the Act. 9. Lastly, it is urged that during pendency of this petition, the property was purchased by the present contesting respondent, but there was no assignment of rent in the sale deed, therefore, the petitioner cannot be evicted. This argument also cannot be accepted. Once the property was purchased by the present contesting respondents, they would step into the shoes of the landlord. However, even assuming that there was no assignment with regard to rent of the disputed property? in the sale deed, yet as owner, he is entitled to evict the petitioner on the basis of the final decree. 10. No other point has been urged. 11. However, even assuming that there was no assignment with regard to rent of the disputed property? in the sale deed, yet as owner, he is entitled to evict the petitioner on the basis of the final decree. 10. No other point has been urged. 11. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.