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2010 DIGILAW 3461 (ALL)

Mohammad Kasim v. District Judge, Sultanpur

2010-11-10

S.S.CHAUHAN

body2010
JUDGMENT Hon'ble S.S. Chauhan, J. -The present petition has been filed challenging the orders dated 15.2.2007 and 17.1.2006. 2. The petitioners happen to be the tenants of opposite parties no.2 to 6 and in default of payment of rent a notice was sent to the petitioners on 15.6.2002 demanding Rs.5460/-, which is outstanding against them, to which they replied on 6.7.2002. Thereafter, opposite parties no.2 to 6 filed a suit for recovery of rent and eviction on 7.9.2002. Written statement was filed by the petitioners on 7.5.2005. On 2.8.2004 it is alleged that the petitioners preferred an application for depositing the rent, but no order was passed on the said application. On 17.1.2006 the suit of opposite parties no.2 to 6 was allowed. The petitioners preferred a revision against the aforesaid order, which too was dismissed vide order dated 15.2.2007. Hence this writ petition. 3. Learned counsel for the opposite parties at the time of hearing of the writ petition made a specific statement that the shop is lying closed for the last more than two years and no business is being carried on in the said shop. 4. On the above argument, counsel for the petitioners wanted certain time to verify the fact in regard to closure of the shop and upon instructions he has made a statement that the shop is lying closed temporarily for a short period for want of proper funds and it is not that the shop is lying closed permanently. He has further stated that the petitioners have never been in default of rent and under the orders of this Court they have deposited the rent as was due against them. It is also stated that no partnership deed was there in existence to prove the subletting and admission of the partnership in the shop in question, therefore, the courts below have wrongly proceeded to allow the claim of the opposite parties. It is further submitted that there was no outstanding rent due against the petitioners and the entire rent has been deposited and time and again offer has also been made by the petitioners, but the rent was refused to be accepted by the opposite parties no.2 to 6. 5. It is further submitted that there was no outstanding rent due against the petitioners and the entire rent has been deposited and time and again offer has also been made by the petitioners, but the rent was refused to be accepted by the opposite parties no.2 to 6. 5. Counsel for the opposite parties has strenuously argued that the shop is lying closed for the last more than two years and looking to the fact that the shop is lying closed, the petitioners do not need the same and neither they can claim any right in respect of the said shop, which has been abandoned and closed by them. He has also stated that the petitioners failed to deposit the entire amount of rent on the date of first hearing and so the trial court and the revisional court have committed no illegality in deciding the issue against the petitioners. It is also submitted that subletting is manifest from the own statement of the petitioner no.1, which has been taken into consideration by the trial court as well as by the revisional court and once the subletting has been found to be there by the courts below, then unless and until any perversity in regard to the finding of fact is shown by the petitioners, the said finding cannot be interfered with and the petitioners are liable to be evicted on the basis of the aforesaid orders. 6. I have heard learned counsel for the parties and perused the record. 7. Initially, a notice was sent demanding the outstanding rent from the petitioners, which was replied by them, but the rent as required was not paid to the landlord, so the opposite parties no.2 to 6 filed a suit for recovery of rent and eviction on the ground of default of rent and consequential eviction. 7. Initially, a notice was sent demanding the outstanding rent from the petitioners, which was replied by them, but the rent as required was not paid to the landlord, so the opposite parties no.2 to 6 filed a suit for recovery of rent and eviction on the ground of default of rent and consequential eviction. When the counsel for the petitioners was put a specific query time and again to establish and show from the record as to whether any deposit of rent as shown in the plaint has been made by the petitioners on the date of first hearing, he has pointed out that an application for deposit of rent was made on 2.8.2004, but the said application was not disposed of and hence the petitioners could not make any deposit on the date of first hearing, therefore, no fault can be attributed to the petitioners in default of payment of rent and in case the application of the petitioners would have been disposed of for depositing the rent on the date of first hearing, the same could have been deposited. It appears from the record that the said application was not pressed and was only moved with a view to take shelter in regard to deposit of the rent. If the petitioners were genuinely serious and were pursuing their remedy bona fidely and with all genuineness, then they ought to have deposited the rent and pressed their application on the date of first hearing. The refuge taken by the petitioners in regard to non-disposal of the application for depositing the rent cannot come to their rescue as it appears from the record that the said application was not pressed by the petitioners. 8. The second ground on which the trial court proceeded to appreciate the evidence on record that there was subletting, which has been approved by the revisional court, has to be accepted on account of the fact that the shop in question was let out to one Mohd. Shamim and the license for running the medical shop was also taken in the name of Mohd. Shamim and petitioner no.1 in his statement has also admitted that Mohd. Shamim is his partner, but the shop in question was never sublet. 9. Shamim and the license for running the medical shop was also taken in the name of Mohd. Shamim and petitioner no.1 in his statement has also admitted that Mohd. Shamim is his partner, but the shop in question was never sublet. 9. Counsel for the petitioners submits that the admission as a partner on account of certain investment cannot lead to subletting and any presumption cannot be drawn in the aforesaid circumstances. 10. The finding recorded by the court below goes to indicate that petitioner no.1 has admitted in his statement that he has taken financial assistance from Mohd. Shamim and he was managing the medical store. Therefore, once there is an admission on the part of the petitioner no.1 that he has admitted Mohd. Shamim as a partner subject to investment of Rs.one lac and the shop was also being managed by Mohd. Shamim, it cannot be said that there was no subletting. The said finding has been concluded by the concurrent finding of fact and by proper appreciation of evidence and no perversity could be pointed out by the petitioners in regard to the factum of partnership except the tenant was at liberty to admit a person as a partner and seek financial assistance. Even if the argument of counsel for the petitioners is accepted, then also the admission of a partner in a proprietary-ship firm or a partnership firm can only be done with the permission of the Rent Control Officer and unless and until the said permission is taken, the admission would be illegal and would amount to subletting. Looking to the fact that the shop is lying closed for the last more than two years as averred by the counsel for the opposite parties, it appears that the petitioners have also lost their interest in retaining the shop in question. The default of rent is apparent from the record and the deposit made under the orders of this Court will not rectify the illegality, which has initially occurred in not depositing the rent on the date of first hearing. In these circumstances, I find no ground to interfere with the matter. 11. The writ petition is devoid of merit. It is accordingly dismissed. 12. The amount deposited by the petitioners shall be released in favour of the opposite parties no.2 to 6.