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2010 DIGILAW 3099 (ALL)

Punet Kumar Agrawal v. Jhunjhunwala Charity Trust

2010-10-05

PRAKASH KRISHNA

body2010
JUDGMENT Hon'ble Prakash Krishna,J. - Raising a short controversy, the present revision is at the instance of the tenant. It has been filed under Section 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 14th of September, 2006 passed in SCC Suit no.7 of 199: Jhunjhunwala Charity Trust Vs. Puneet Kumar Agrawal. House no.D-48/139, Hanuman Katra, Mishra Pokhra situate in district Varanasi, is the property in dispute which belongs to plaintiff trust. The said trust is a public charity trust. The defendant applicant herein was the tenant of two shops situate on the ground floor of the said property wherein he is carrying on the business under the name and style of M/s. Confectionery House and is also selling electrical goods. The shops were let out on a monthly rent of Rs.550/- per month. The suit giving rise to the present revision was filed by the trust namely Jhunjhunwala Charity Trust through its one of the trustees namely Deena Nath Jhunjhunwala, on the ground that the defendant tenant is a bad paymaster and is in arrears of rent since January, 1991, whose tenancy has been determined by a notice dated 29.1.1998 demanding the arrears of rent since June, 1991 to December, 1997 for 84 months amounting to Rs.46,200/-. The tenancy was also terminated. 2. The suit was contested on a number of pleas including that Deena Nath Jhunjhunwala was not authorised to institute the suit on behalf of the trust. The parties led evidence in support of their respective cases. The trial Court framed five points for determination and decreed the suit by its judgment and decree dated 14th of September, 2006. It has been found that Deena Nath Jhunjhunwala is one of the trustees and being one of the trustees is authorised to file the suit. The trial Court has found that the defendant tenant is defaulter in payment of rent and the tenancy has been validly terminated by giving notice under Section 106 of Transfer of Property Act. 3. In the present revision, the learned counsel for the applicant could submit only one point that Deena Nath Jhunjhunwala was not authorised to institute the suit in question. The submission is that there is no material on record to show that being a trustee, he was authorised at any point of time to institute the suit. 3. In the present revision, the learned counsel for the applicant could submit only one point that Deena Nath Jhunjhunwala was not authorised to institute the suit in question. The submission is that there is no material on record to show that being a trustee, he was authorised at any point of time to institute the suit. On the other hand, the record shows that another trustee was authorised to do the needful with respect to the tenanted properties. 4. The learned counsel for the plaintiff opposite party, on the other hand, supports the impugned judgment. 5. Considered the respective submissions of the learned counsel for the parties and perused the record. 6. Shri Deena Nath Jhunjhunwala appeared in the witness box as PW/1 and he produced the proceeding register regarding the minutes of the proceedings of the trust. He also proved the other documents. 7. Along with the supplementary affidavit a copy of the minutes of the meeting dated 9.12.1995 has been filed as Annexure-SA 4. The learned counsel for the parties have referred the minutes of the said meeting. The minutes of the meeting do show that in place of late Prahlad Rai Ji Jhunjhunwala, Shri Deena Nath Jhunjhunwala was elected as one of the co-trustees. The learned counsel for the applicant drew the attention to the Agenda No.2 of the said meeting. Under the said agenda it was resolved that the tenants who are not paying the rent and the persons who are unauthorised occupants, against them legal proceedings may be continued by Sri Satyanarain Ji Jhunjhunwala. Shri Satyanarain Jhunjhunwala was authorised to continue legal action against the defaulters in payment of rent and unauthorised occupants of the trust property. It was also resolved that efforts be made to recover the outstanding rent. The contention of the tenant is that in view of the said resolution, the action, if any, could have been taken only by Sri Satyanarain Ji Jhunjhunwala and not by any other trustee. 8. On a careful reading of the said resolution, it is difficult to agree with him. The said resolution only authorises Sri Satyanarain Jhunjhunwala to conclude the pending proceedings against the tenants who are not paying the rent and also against the unauthorised occupants. It has been pleaded and proved that Deena Nath Jhunjhunwala was elected and appointed and adopted as one of the co-trustees of the plaintiff. The said resolution only authorises Sri Satyanarain Jhunjhunwala to conclude the pending proceedings against the tenants who are not paying the rent and also against the unauthorised occupants. It has been pleaded and proved that Deena Nath Jhunjhunwala was elected and appointed and adopted as one of the co-trustees of the plaintiff. No attempt was made by the learned counsel for the applicant to challenge the said finding. Only this much was submitted that Deena Nath Jhunjhunwala may be one of the trustees but there have been no express authorisation by the trust, he could not maintain the suit. 9. In reply, the learned counsel for the plaintiff landlord has placed reliance upon Section 13 of the Trust Act and submits that in view of the decision of the Apex Court in Gopal Krishnaji Ketkar Vs. Mahomed Jaffar Mohamed Hussein, AIR 1954 (SC) 5 , even a 'De Facto' Manager can sue on behalf of the trust for its benefit. 10. This Court has examined the above controversy in Trust Shree Laxmi Narain Dev at Barhtal Trust and the Temple under it situate at Barhtal (Gujrat) Vs. IInd Additional District Judge, Varanasi and others, 2003 (2) ARC 730. It has been held that the principle that one co-owner can institute a suit for ejectment against a tenant applies to the trustees also. It is now well settled that a co-owner/co-landlord can institute a suit for ejectment against a tenant. 11. Respectfully following the said decision, I am of the opinion that the suit for ejectment filed through Sri Deena Nath Jhunjhunwala was maintainable. The finding returned by the trial Court that the provisions of the State Rent Control Act i.e. the U.P. Act No.13 of 1972 are not applicable to the building in question as it belongs to public trust, was not challenged before me. No other point was pressed. The revision is, therefore, dismissed. 12. Time to vacate the disputed accommodation is provided up to 31st of December, 2010 subject to the fulfilment of the following terms and conditions:- 1. The applicant tenant shall deposit the entire arrears of rent at the decreed rate for the period up to 31st of December, 2010 within a period of one month with the Court below. 2. 12. Time to vacate the disputed accommodation is provided up to 31st of December, 2010 subject to the fulfilment of the following terms and conditions:- 1. The applicant tenant shall deposit the entire arrears of rent at the decreed rate for the period up to 31st of December, 2010 within a period of one month with the Court below. 2. The applicant tenant shall furnish an undertaking on affidavit before the Court below within the aforesaid period that he will vacate the disputed accommodation and hand over its peaceful possession to the landlord without creating any third party interest on or before 31st of December, 2010. 13. In case, he fails to comply with the aforesaid conditions, the time granted by this Court shall stand vacated. If the applicant fails to vacate it on or before 31st of December, 2010, he will have to pay the damages for the use and occupation of the disputed accommodation at the rate of Rs.5,000/- per month since 1st of January, 2011 and onwards till the actual delivery of possession to the landlord.