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2010 DIGILAW 1750 (ALL)

Rajendra Pal Singh v. Shashi Agrawal

2010-05-25

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard learned counsel for the petitioner and for the respondent-caveator. 2. This petition is directed against concurrent orders dated 31.10.2008 and 3.3.2010 by which both the courts below have decreed the landlords suit for eviction. 3. The plaintiff-respondent no. 2 along with his brother instituted SCC suit no. 706 of 1976 for the eviction of tenant Ram Kumar, defendant-respondent and his subtenant, Ram Pal Singh, father of the present petitioner from the disputed premises inter-alia on the basic allegation of default and subtenancy. 4. The tenant and the subtenant contested the suit denying the allegations of default and subtenancy. 5. During pendency of the suit one of the plaintiffs died and the dispute with regard to substitution of his heirs and impleadment of Smt. Shashi Agarwal, respondent no. 1 herein, reached this court in writ petition no. 40827 of 2000 and a learned Single Judge, after upholding the substitution and impleadment of Smt. Shashi Agarwal, the transferee of the plaintiff, but finding that the tenant with malafide intention was delaying the disposal of the suit without paying rent, directed the tenant to vacate the property vide judgment dated 20.8.2007. The matter was taken before the Supreme Court, which vide order dated 12.10.2007, though upheld the substitution and impleadment, set aside the order for vacating the premises in C.A. no. 4897 of 2007 after enhancing the rent and directed the court below to decide the suit within a year. 6. The trial court framed as many as fourteen issues and after the parties had led their evidence, decreed the suit with the finding of validity of the notice, subtenancy etc. The resultant revision has also been dismissed. 7. It is firstly urged that though the rent receipts were issued in the name of Ram Kumar, Ram Pal Singh was the real tenant and both the courts below erred in holding otherwise. 8. It is not denied, rather it is admitted that Ram Kumar and Ram Pal Singh are close relatives. The specific issue no. 2 deals with the question of tenancy and the trial court as well as revisional court after examining the evidence on record, both oral and documentary, have recorded a categorical finding of fact that the first rent receipt of April, 1969 was duly signed by Ram Kumar which fact was also admitted by Ram pal Singh. The specific issue no. 2 deals with the question of tenancy and the trial court as well as revisional court after examining the evidence on record, both oral and documentary, have recorded a categorical finding of fact that the first rent receipt of April, 1969 was duly signed by Ram Kumar which fact was also admitted by Ram pal Singh. All rent receipts have been issued in the name of Ram Kumar though in some the name of Ram Pal Singh has been mentioned in the column of the person paying the rent. The courts below have taken into consideration the case set up by Ram Pal Singh in his written statement to hold that the landlord did not want to give the disputed premises on rent to a lawyer and Ram Pal Singh was a lawyer. In fact, Ram Kumar had challenged an order of impleadment of Smt. Shashi Agarwal before this Court and also before the Apex Court where he had categorically admitted that he was the tenant of the disputed premises. All these are findings of fact which are not shown to be perverse and therefore the contention of the learned counsel for the petitioner cannot be accepted. 9. It is then urged that assuming the tenancy was created in favour of Ram Kumar, but at the time when it was created in April, 1969, Ram Kumar was a minor and therefore the contract of tenancy was void. 10. The trial court has gone into this aspect in detail and after considering the entire evidence on record including the fact that if the contention of the petitioner is accepted, Ram Kumar would still remain a minor when he had joined the Indian Army. Even otherwise, if the contract of tenancy was void, that will not enure to the benefit of the petitioner who would still remain a trespasser. Again these findings are based on good evidence on record which have not been shown to be vitiated on any account. 11. It is then urged that the courts below have recorded contrary finding, in that even after holding that U.P. Act No. XIII of 1972 was inapplicable to the disputed building, but while considering the question of subtenancy, it has applied the provision thereof. 12. 11. It is then urged that the courts below have recorded contrary finding, in that even after holding that U.P. Act No. XIII of 1972 was inapplicable to the disputed building, but while considering the question of subtenancy, it has applied the provision thereof. 12. Assuming it to be correct, even then the petitioner has failed to demonstrate any independent right and as such would be liable for eviction even without notice. It is also worthy of note as observed hereinabove, that by the very case set up by the petitioner in the courts below it was evident that the landlord never wanted to keep the predecessor in interest of the petitioner as a tenant. 13. Lastly, it is urged that notice was not duly served on the tenant. 14. The trial court has again considered the issue as issue no.1 and after relying upon several decisions of this Court and going through the evidence on record, has found that service on the last known address of the tenant was sufficient which was also affected by affixation. 15. Even otherwise, the Apex Court in the case of Jaswant Ram Soni Vs. Prakash Mal, which was also followed in Mahbood Ali and others Vs. Smt. Habiban, had held that in such a fact situation there is no requirement of a written notice before filing a petition for eviction. 16. No other point has been urged. 17. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected. 18. However, considering the fact that this eviction suit has been hanging fire for the last about 34 years coupled with the fact that at every stage its disposal was delayed, on the peculiar facts of this case, the petitioners are directed to handover vacant possession of the disputed property to the respondent-landlord within a period of two months from today.