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2011 DIGILAW 2681 (ALL)

Sushil Kumar v. Ganga Sharan Garg and Others

2011-11-28

DILIP GUPTA

body2011
Hon'ble Dilip Gupta, J.: - This petition seeks the quashing of the order dated 29th September, 2011 passed by the Prescribed Authority by which the application filed by the petitioner for being impleaded in the proceedings initiated by respondent No.1-Ganga Sharan Garg against Ajay Kumar-respondent No.2 under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the 'Act') has been rejected. It is stated that the father of the petitioner Hari Prakash, was the tenant and after his death all the sons became the joint tenants. One son Devendra Kumar had died and another son Vijendra Kumar had settled at some other place. The petitioner and respondent No.2-Ajay Kumar, the remaining two sons were residing in the house and rent was being paid by the petitioner-Sushil Kumar. An application under Section 21(1)(a) of the Act was filed by the landlord Ganga Sharan Garg in which only Ajay Kumar was impleaded as Opposite Party and the petitioner was not impleaded for the alleged reason that he had shifted to another house of which one Mr. Bansal was the landlord. When the petitioner came to know about the proceedings, he filed an application for being impleaded in the proceedings with the assertion that he was residing in the tenanted house and had not shifted to another house as alleged by the landlord. It was also pointed out that in fact the petitioner had been paying the rent and notice had also been served upon him by the landlord but he was not impleaded in the proceedings. The brother of the petitioner Ajay Kumar also filed an affidavit in favour of the petitioner stating that the petitioner is residing in the tenanted house and that he had not shifted to another house. The Prescribed Authority rejected the application for the reason that some documents had been filed by the landlord to show that the petitioner had actually shifted to another house and that the application for impleadment had been filed with delay. The Prescribed Authority also held that after the death of the father of the petitioner, the sons became joint tenants and even if one of them was impleaded as a party, the application could not be rejected for the reason that all the sons had not been impleaded. The Prescribed Authority also held that after the death of the father of the petitioner, the sons became joint tenants and even if one of them was impleaded as a party, the application could not be rejected for the reason that all the sons had not been impleaded. Sri B.Dayal, learned counsel appearing for the petitioner has submitted that the Prescribed Authority committed an illegality in rejecting the application. It is his submission that there was no material on the record to come to the conclusion that the petitioner had actually shifted to another house and the petitioner continues to reside in the house but for ulterior motives the landlord did not implead him as a party. It is also his assertion that after the death of the father, the sons may be residing as joint tenants but if during the pendency of the proceedings under Section 21 (1) (a) of the Act, an application is filed by a son who has not been impleaded as a party, then the Court should not reject the application for the reason that one son is already a party. He has further submitted that the petitioner is not interested in delaying the proceedings and will have no objection if the Court issues directions for deciding the application filed under Section 21(1)(a) of the Act within a reasonable time. Sri Rajeev Upadhayay, has put in appearance on behalf of respondent No.1, who is the landlord. Respondent No.2 is the brother of the petitioner and he had filed an affidavit in favour of the petitioner. It is, therefore, not necessary to issue notice to him. Learned counsel for the respondents has submitted that the Prescribed Authority committed no illegality in rejecting the application filed by the petitioner for the reason that Sushil Kumar had actually shifted to another house and he has no concern with the tenanted accommodation. According to him, the application had been filed only for delaying the proceedings. I have considered the submissions advanced by learned counsel for the parties. It is not in dispute that earlier the petitioner-Sushil Kumar had been paying the rent to the landlord. It is also not in dispute that the landlord had served a notice upon the petitioner on 15th November, 2007 before initiating the proceedings under Section 21(1)(a) of the Act on 17th March, 2008. It is not in dispute that earlier the petitioner-Sushil Kumar had been paying the rent to the landlord. It is also not in dispute that the landlord had served a notice upon the petitioner on 15th November, 2007 before initiating the proceedings under Section 21(1)(a) of the Act on 17th March, 2008. What is, however, stated by the landlord is that after service of notice and before the filing of the application under Section 21(1)(a) of the Act, the petitioner had shifted to another accommodation and the Prescribed Authority came to the conclusion that the petitioner had actually shifted. The Prescribed Authority also came to the conclusion that the father of the petitioner was a tenant and after his death the sons inherited tenancy as joint tenants and, therefore, the impleadment of one of them will suffice. It needs to be noticed that the petitioner and his brother both are asserting that the petitioner had not shifted to another house and was continuing to reside in the tenanted house. Though it is correct that the sons inherent the tenancy as joint tenants but when during the pendency of the application under Section 21(1)(a) of the Act, the petitioner had filed an application for being impleaded and it is also a fact that he had been paying the rent and notice was also served upon him, it is desirable that the petitioner should be impleaded as a party in the application filed by the landlord under Section 21(1)(a) of the Act. The Prescribed Authority, therefore, committed an illegality in rejecting the application. The application filed by the petitioner, in such circumstances, deserves to be allowed. As learned counsel for the petitioner has very fairly stated that he would have no objection if a direction is issued to the Prescribed Authority to decide the application filed under Section 21(1)(a) of the Act, within a time to be fixed by the Court, the interest of the landlord can be protected by directing the Prescribed Authority to decide the application filed by the landlord under Section 21(1)(a) of the Act, expeditiously, preferably within a period of three months from the date a certified copy of this order is filed by the petitioner before the Prescribed Authority. The petition is allowed to the extent indicated above.