Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 3331 (ALL)

Anand Agarwal v. District Judge, Lucknow

2014-11-10

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal,J. The dispute in this writ petition relates to a two door shop situated on the ground floor of house No.244/156, Yahiyaganj, Lucknow which was owned by Late Atma Singh Sahani. The shop in question was let out by Atma Singh Sahani to Rameshwar Dayal Agrawal about 55 years back on a monthly rent of Rs.25/-. On the death of Atma Singh Sahani, his son Sri Jagat Singh Sahani inherited the tenant shop and started accepting the rent and issuing rent receipt to Rameshwar Dayal Agrawal. Rameshwar Dayal Agrawal died in 1983, leaving behind four sons. One of the sons of Rameshwar Dayal, namely, Satya Prakash Agrawal died in the month of April 2005, leaving behind his widow Smt. Darshan Devi and a son Anand Agrawal who is petitioner in this writ petition. Similarly, another son Ravi Prakash Agarwal died in the month of January, 2010, leaving behind his son Gaurav Agrawal and a widow. The tenancy rights in respect of the shop in question devolved upon all the legal heirs of Rameshwar Dayal Agrawal in accordance with the provisions of U.P. Urban Buildings (Regulation of Letting & Eviction) Act, 1972 (hereinafter referred to as the Act). 2. After the death of Rameshwar Dayal Agrawal, the rent receipt was being issued in the name of Satya Prakash Agrawal. In the meantime, the monthly rent was also enhanced from Rs.25/- to Rs.31.25 per month. The two sons of the original tenant, namely, Satya Prakash Agrawal and Ravi Prakash Agrawal have been jointly carrying on business in the shop in question under the name and style of M/s. Anand Metal Stores. On the death of Satya Prakash Agrawal, the petitioner being his son became partner in the firm along with Ravi Prakash Agrawal. After the death of Ravi Prakash Agrawal in the year 2010, the said firm became the proprietorship firm of the petitioner alone. The opposite party no.3 after having purchased the property approached the then tenants Satya Prakash Agrawal and Ravi Prakash Agrawal with the proposal to renowate the said property and to enable them to do business as before in the newly constructed shop on a monthly rent of Rs.250/-. Pursuant to this settlement, the monthly rent of Rs.250/- was being paid since October, 1995 to the opposite party no.3, who acknowledged by issuing a rent receipt. Pursuant to this settlement, the monthly rent of Rs.250/- was being paid since October, 1995 to the opposite party no.3, who acknowledged by issuing a rent receipt. However, since December, 2003, the opposite party no.3 refused to accept the rent and filed a suit for eviction and recovery of arrears of rent against Satya Prakash Agrawal. The said SCC Suit No.219 of 2001 was dismissed vide judgment and decree dated 17.10.2003. 3. It was pleaded by the opposite party no.3 in the said suit that the shop in question was a new construction and the Act No.13 of 1972 was not applicable to it. The opposite party no.3 feeling aggrieved by the dismissal of his suit filed SCC Revision which was partly allowed and the case was remanded back with the direction to record a fresh finding on issue no.4 which was framed as to whether provisions of Act No.13 of 1972 were applicable to the shop in question or not. The petitioner challenged the aforesaid judgment by filing a Writ Petition No.103 (R/C) of 2008. The said writ petition was disposed of by this Court on 10.07.2008 taking into consideration that the opposite party no.3 had also moved an application for release under Section 16 (1) (b) of the U.P. Act No.13 of 1972 before the Rent Control and Eviction Officer (hereinafter referred to as the RCEO). This Hon'ble Court while disposing of the writ petition also permitted the court below to consider the conduct of the landlord while deciding issue no.4. The petitioner filed an application before the RCEO for dismissal of the release application on the ground that the release application was not maintainable in view of the fact that the opposite party no.3 had already taken a plea in the SCC suit that the provisions of Act No.13 of 1972 were not applicable to the shop in question and the question was yet to be adjudicated by the SCC court. However, the opposite party no.2 ignoring the observation made by this Hon'ble Court passed the impugned order dated 18.01.2011 declaring the shop in question vacant under Section 12 of the Act No.13 of 1972. The said order of declaring the vacancy has been challenged by the petitioner by means of the instant writ petition. 4. However, the opposite party no.2 ignoring the observation made by this Hon'ble Court passed the impugned order dated 18.01.2011 declaring the shop in question vacant under Section 12 of the Act No.13 of 1972. The said order of declaring the vacancy has been challenged by the petitioner by means of the instant writ petition. 4. The petitioner had also approached the District Judge, Lucknow by way of filing a revision against the order declaring vacancy, but the said revision was dismissed on 04.02.2011 as not maintainable, but giving liberty was give to the petitioner to approach this Hon'ble Court. After the passing of the impugned order declaring vacancy, the opposite party no.3 made an application under Order 23 Rule 1 CPC before the small causes court for withdrawal of the SCC suit with permission to file a fresh suit. This application was vehemently opposed by the petitioner by filing a detailed objection stating therein that no permission to file a fresh suit could be granted because there was no formal defect in the suit. It was also stated in the objection that in view of the directions given by the Hon'ble High Court, the SCC suit was to be decided in terms of the directions of the Hon'ble High Court. The opposite party no.3 had also moved an application for substitution, but knowingly an endorsement was made on the said application that the same was not being pressed. Learned SCC Judge on the basis of this endorsement dismissed the suit as abated vide order dated 11.05.2011. The petitioner has already submitted an application for recall/review of the aforesaid order dated 11.05.2011 passed in SCC suit which is still pending. 5. The petitioner has assailed the order passed by the RCEO declaring vacancy mainly on the ground that this order is in the teeth of the order passed by this Hon'ble Court as the learned SCC Judge was under obligation to decide the issue no.4, but in utter disobedience of the direction of this Court, the learned SCC Judge on the basis of the endorsement made by the learned counsel for the opposite party no.3 on the substitution application, dismissed the suit as abated. However, the order dismissing the SCC suit as abated is not under challenge in this writ petition and an the application for recall of the said order is also pending before the same court. 6. However, the order dismissing the SCC suit as abated is not under challenge in this writ petition and an the application for recall of the said order is also pending before the same court. 6. Sri Brijesh Kumar Saxena, learned counsel appearing on behalf of the petitioner has submitted that the opposite party no.3, who is the subsequent purchaser of the shop in question filed a suit for eviction only against Satya Prakash Agrawal while after the death of Rameshwar Dayal Agrawal, all his heirs inherited the tenancy rights and admittedly Ravi Prakash Agrawal was also carrying on business along with Satya Prakash Agrawal and on the death of his father and uncle Ravi Prakash Agrawal, the petitioner started carrying on business in the capacity of sole proprietor of the firm. The opposite party no.3 knowingly and purposely did not implead the petitioner as party in the suit filed before the SCC court. The opposite party no.3, in the aforesaid SCC suit had taken a specific plea that the shop in question was a new construction and as such was beyond the purview of Act No.13 of 1972. However, learned SCC Judge on the basis of evidence on record recorded a finding of fact that the opposite party no.3 could not prove that the shop in question was a new construction and as such Act No.13 of 1972 was applicable in respect of the shop in question and on the basis of this finding and also coming to the conclusion that Satya Prakash Agrwal did not commit any default in payment of rent, dismissed the suit with cost. 7. The opposite party no.3 feeling aggrieved by the dismissal of his suit preferred SCC Revision No.83 of 2003 before the District Judge, Lucknow, which was disposed of by the Additional District Judge, Court No.1, Lucknow vide judgment and order dated 17.03.2008, whereby the revision was allowed and the judgment of the SCC court was set aside only to the extent of finding recorded in respect of issue no.4. The matter was remanded to the SCC court with the directions to permit the parties to adduce further evidence in support of their case and record fresh finding on issue no.4. This order of remand was challenged by the petitioner and his mother Smt. Darshan Devi as in the meantime the original defendant in SCC suit, namely, Satya Prakash Agrawal had died. This order of remand was challenged by the petitioner and his mother Smt. Darshan Devi as in the meantime the original defendant in SCC suit, namely, Satya Prakash Agrawal had died. The writ petition was disposed of at the admission stage by the order dated 10.07.2008, whereby it was directed that the evidence regarding subsequent events and conduct of the landlord will be considered by the trial court while recording finding on issue no.4. It was also observed by this Hon'ble Court that the evidence relating to the subsequent conduct of the landlord will be a relevant evidence to be considered by the trial court and not by this Court. 8. Further, submission on behalf of the petitioner is that after passing of this order by this Hon'ble Court, the opposite party no.3, who had moved an application for substitution, made an endorsement that he did not want to press the application and also moved an application under Order 23 Rule 1 CPC for permission to withdraw the suit with liberty to file a fresh suit. The application was opposed by the petitioner by filing a detailed objection, but the learned SCC Judge allowed the application and dismissed the SCC suit as abated. 9. Learned counsel for the petitioner while assailing the order dated 18.01.2011 passed by the RECO argued that although in the SCC suit, the opposite party no.3 had come up with the case that the shop in question was a new construction and was, therefore, beyond the purview Act No.13 of 1972, but moved release application under Section 16 of the said Act No.13 of 1972 on the ground that since Ravi Prakash Agrawal was not a family member of Satya Prakash Agrawal, therefore, the shop in question be declared as vacant. 10. The petitioner on receiving a notice filed objection before the RECO clearly stating therein that Ravi Prakash Agrawal was the real brother of Satya Prakash Agrawal and was the member of a Hindu undivided family. The business being carried on in the shop in question was a partnership firm, in which both Satya Prakash Agrawal and Ravi Prakash Agrawal were the partners. However, the RECO proceeded to declare the vacancy on a wrong assumption that the civil suit was entirely different matter and there was no stay order from any court, therefore, he had jurisdiction to proceed with the matter. However, the RECO proceeded to declare the vacancy on a wrong assumption that the civil suit was entirely different matter and there was no stay order from any court, therefore, he had jurisdiction to proceed with the matter. The matter with regard to the applicability of Act No.13 of 1972 was to be decided by the SCC court in view of the directions issued by this Hon'ble High Court, but the learned RECO on the basis of admission found that the Rent Control Act was applicable to the building and since Ravi Prakash Agrawal was not a member of the family of Satya Prakash Agrawal, therefore, there was deemed vacancy in respect of the shop in question. When the vacancy was declared by the order dated 18.01.2011, the opposite party no.3 thinking that he had moved a step ahead towards evicting the petitioner, moved the application for withdrawal of the suit on 24.02.2011. The said application was strongly opposed by the petitioner on the ground that in view of the directions of the Hon'ble High Court, the SCC court was under obligation to decide the issue no.4, but the learned SCC court ignoring the direction issued by this Hon'ble Court, allowed the application and dismissed the suit as abated. The RECO also did not take notice of the fact that the controversy as to whether the Rent Control Act was applicable to the shop in question was to be decided by the SCC court and proceeded with the matter in utter disregard of the directions of the Hon'ble Court and declared the vacancy on the ground that the jurisdiction of Rent Control Court and that of civil court were entirely different and there was no stay from any court. The submission on behalf of the petitioner is that the approach of the RECO is wholly unjustified and against the mandate of this Hon'ble Court and since the controversy with regard to the applicability of the Act was to be decided by the competent SCC court, the RECO had no jurisdiction to proceed with the matter and declare the vacancy taking recourse of the provisions of Act No.13 of 1972. 11. Sri Mohd Arif Khan, learned Senior Advocate, assisted by Sri Mohd. 11. Sri Mohd Arif Khan, learned Senior Advocate, assisted by Sri Mohd. Aslam Khan, Advocate appearing on behalf of the opposite party no.3 has argued that the petitioner had a specific case from the very beginning that the shop in question was old construction and, therefore, Act No.13 of 1972 was applicable to it. In view of this, the learned RECO did not commit any illegality in proceeding with the matter. He has further argued that the tenancy of the shop in question was in the name of Satya Prakash Agrawal and after his death Ravi Prakash Agrawal occupied the shop in question without any authority and since he was not a member of the family of Satya Prakash Agrawal, therefore, there was deemed vacancy in respect of the shop in question as provided under Section 12 of the Act No.13 of 1972. After the death of Ravi Prakash Agrawal, the petitioner again illegally occupied the shop in question without any authority and became unauthorised occupant. There was, therefore, deemed vacancy under the provision of Section 12, Act No.13 of 1972. The order passed by the RECO is, therefore, perfectly justified and does not call for any interference. With regard to the order passed by the learned SCC Judge dismissing the SCC suit as abated the submission of the learned Senior Advocate is that in the application filed for withdrawal of the suit, it was specifically stated that Act No.13 of 1972 was applicable to the shop in question and, therefore, the suit was not maintainable in the present form. It was because of this reason that the opposite party no.3 sought liberty from the court to withdraw the suit with permission to institute a fresh suit which was rightly granted. 12. As indicated earlier, the order passed by the SCC court is not under challenge in this writ petition and as such there is hardly an occasion to make any observation with regard to the order passed by the SCC court. The only thing to be considered is as to whether the RECO has correctly declared the vacancy or the order passed by him declaring vacancy is against the law. 13. From the perusal of the record, I find that the opposite party no.3 filed the suit for ejectment only against Late Satya Prakash Agrawal on 01.12.2001. The only thing to be considered is as to whether the RECO has correctly declared the vacancy or the order passed by him declaring vacancy is against the law. 13. From the perusal of the record, I find that the opposite party no.3 filed the suit for ejectment only against Late Satya Prakash Agrawal on 01.12.2001. The suit was dismissed by the judgment and order dated 17.10.2003 and the SCC Revision filed against the dismissal of the suit was allowed on 17.03.2008, whereby the learned revisional court remanded the matter to the SCC Court with the direction that the finding on issue no.4 be recorded afresh after giving opportunity of evidence to the parties. Feeling aggrieved by this order, the petitioner and his mother preferred a writ petition before this Hon'ble Court which was disposed of on 10.07.2008 with the observation that the order of the revisional court remanding the matter for fresh finding on issue no.4 was perfectly justified, but added that while recording the finding on issue no.4, the learned court shall also take into account the subsequent conduct of the landlord and the subsequent development. This observation of the Hon'ble Court came on account of the fact that the opposite party no.3 had moved an application for release before the RCEO on 09.04.2008 i.e. prior to the disposal of the writ petition. However, before the SCC court could comply the directions of the Hon'ble Court, the opposite party no.3 moved an application for withdrawal of the suit and the learned SCC Judge instead of complying with the directions of the Hon'ble Court, dismissed the suit as abated. 14. The opposite party no.3 had sought release of the shop in dispute on the ground that the shop was in occupation of Satya Prakash Agrawal who died on 05.04.2005 and on his death, his brother Ravi Prakash Agrawal occupied the said shop without any authority. Since Ravi Prakash Agrawal was not a family member of Satya Prakash Agrawal, therefore, the premises in question would be deemed to be vacant under the provisions of Section 12 of U.P. Act No.13 of 1972. It also transpires from the perusal of the record that the Rent Control Inspector visited the shop in question and submitted his report in the month of May 2008 indicating therein that the shop was in occupation of Ravi Prakash Agrawal. It also transpires from the perusal of the record that the Rent Control Inspector visited the shop in question and submitted his report in the month of May 2008 indicating therein that the shop was in occupation of Ravi Prakash Agrawal. On the receipt of the report of the Rent Control Inspector, notices were issued, upon which the petitioner filed objection supported with the affidavit and stated on oath that Satya Prakash Agrawal and Ravi Prakash Agrawal both were carrying on business in the partnership firm and after the death of Satya Prakash Agrawal, the petitioner has been inducted as partner being the son of Satya Prakash Agrawal. It was also brought to the notice of the leaned RCEO that in the SCC suit the Hon'ble High Court has directed the SCC Court to decide issue no.4 afresh and as such the question of applicability of U.P. Act No.13 of 1972 upon the premises in question was yet to be decided. However, the learned RCEO ignoring the directions of the Hon'ble High Court proceeded to declare the vacancy on the ground that after the death of Satya Prakash Agrawal, the premises has been occupied by a person, who is not the member of his family and there was an admission of the petitioner that the building is in an old construction and also that there was no stay order from any court and the jurisdiction of rent control is entirely different. It also needs to mention here that before passing of the order declaring the vacancy by the RCEO on 18.01.2011, Ravi Prakash Agrawal had already died in the month of June 2010. After the death of Ravi Prakash Agrawal, the petitioner became the sole proprietor of the firm and in these circumstances, there was no occasion for the RCEO to have proceeded with the matter and declare the vacancy when the controversy with regard to the applicability of the Act was to be decided by the SCC Court under the directions of the Hon'ble High Court and the alleged unauthorised occupant namely Ravi Prakash Agarwal had died. 15. Learned counsel for the petitioner has drawn the attention of the Court towards the counter-affidavit filed by the opposite party no.3 to this writ petition in para 24 of which it has been admitted that the original tenant of the shop in question was Rameshwar Dayal. 15. Learned counsel for the petitioner has drawn the attention of the Court towards the counter-affidavit filed by the opposite party no.3 to this writ petition in para 24 of which it has been admitted that the original tenant of the shop in question was Rameshwar Dayal. He died in the year 1983 after coming into force the U.P. Act No.13 of 1972. Since the shop in dispute was a commercial premises, hence under the provisions of the Rent Control Act all the legal heirs of Late Rameshwar Dayal Agrwal inherited the tenancy rights. It was only after the purchase of the property by the opposite party no.3 that the rate of rent was enhanced and the rent receipt was issued in the name of Satya Prakash Agrawal, but the tenancy right inherited by all the heirs remained unaffected. In this view of the matter, even if it is presumed that Ravi Prakash Agrawal occupied the premises after the death of his brother Satya Prakash Agrawal, could not have been any deemed vacancy. The RCEO probably overlooked this important aspect of the matter and has not examined the matter in the right prospective. 16. In view of the above discussions, I find that the order passed by the learned RCEO declaring the vacancy of the shop in question is an erroneous order and as such is liable to be set aside. 17. The writ petition is accordingly allowed and the order dated 18.01.2011 passed by the opposite party no.2 declaring the vacancy of the shop in question as contained in annexure no.9 to the writ petition is hereby set aside with the direction that the matter shall be re-examined by the RCEO again in the light of the observations made in this judgment after providing opportunity of giving evidence to all the concerned parties. 18. In the result, the writ petition is allowed. No order as to cost.