JUDGMENT Dilip Gupta, J.
1. These two writ petitions arise out of SCC Suit No. 118 of 1997 that had been instituted on 11th September 1997 by the Plaintiff-landlord Ravi Kumar for recovery of arrears of rent and ejectment in respect of the godown that had been let out to Ram Babu, father of defendant Nos. 1 to 5. Defendant Nos. 1 to 5 were the defendant 1st Set while defendant No. 6 was the defendant IInd Set.
2. It was alleged in the plaint that after the death of Ram Babu, defendant Nos. 1 to 5 became the tenants; that earlier, Ram Babu was depositing the rent under Section 30(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as to the Act) but after his death on 4th February 1987 the proceedings became infructuous; that a notice dated 19th April 1989 was sent to defendant Nos. 1 to 5 to pay the arrears of rent and water tax upto 19th April 1989 but the said amount was not paid; that the user of the godown had also been converted by defendant Nos. 1 to 5 without the consent of the landlord and heavy power machines were installed; that the building had also been damaged by defendant Nos. 1 to 5; that defendant Nos. 1 to 5 had also sub-let the tenanted premises to Rakesh Kumar defendant No. 6. The Plaintiff-landlord, therefore, sent the notice dated 23rd July 1997 to defendant Nos. 1 to 5 for ejectment and recovery of arrears of rent and ultimately the suit was filed.
3. The Judge, Small Cause Courts on 26th October 1998 noticed that the service upon the defendants was sufficient but the defendants did not appear and, therefore, fixed 10th November 1998 for ex-parte evidence. An application was moved by defendant No. 1 for recalling the said order. This application was allowed on 10th November 1998 and 20 days time was given to file the Written Statement and 15th December 1998 was fixed for evidence. Subsequently, defendant No. 1 filed a Written Statement on 24th March 1999 and also deposited Rs. 4200/- under Section 20(4) of the Act. After the evidence of the plaintiff and the defendant had been closed, defendant No. 5-Vimla Devi moved an application in November 2000 for setting aside the order directing the case to proceed ex-parte against her and for giving her time to file the Written Statement. This application was allowed on 15th January 2001, and time upto 24th January 2001 was given to defendant No. 5 to file the Written Statement. On the same date the Judge, Small Cause Courts also ordered that she may deposit the amount of Rs. 14000/- at her own risk.
4. The suit was ultimately decided by Judge, Small Cause Courts by the Judgment and decree dated 13th January 2003. It was found that the defendants were entitled to the benefit of Section 20(4) of the Act and there was no sub-letting. However, the suit was decreed for eviction as it was found that the provisions of Section 20(2)(b) and (d) of the Act had been contravened by the tenant.
5. This led to the filing of three Revisions. SCC Revision No. 1 of 2003 was filed by Vimla Devi, SCC Revision No. 16 of 2003 was filed by the heirs and legal representatives of defendant No. 1 Dau Dayal Sharma while SCC Revision No. 17 of 2003 was filed by the plaintiff-landlord. All the three Revisions were heard together and decided by the common Judgment and order dated 21st February 2008.
6. Revision No. 1 of 2003 and Revision No. 16 of 2003 were dismissed. Revision No. 17 of 2003 filed by the plaintiff-landlord was, however, allowed in part. The finding recorded by the Judge Small Cause Courts regarding deposit of the amount under Section 20(4) of the Act on the first date of hearing was reversed and it was held that the defendants were not entitled to the benefit of Section 20(4) of the Act. However, the finding that there was no sub-letting was confirmed.
7. Writ Petition No. 17891 of 2008 has been filed by the heirs and legal representatives of defendant No. 1 for assailing the Judgment and order dated 21st February 2008 passed by Additional District Judge, Court No. 6 in SCC Revision No. 16 of 2003 and for setting aside the Judgment and order dated 13 January 2003 passed in SCC Suit No. 118 of 1997.
8. Writ Petition No. 17894 of 2008 has been filed by Vimla Devi for setting aside the Judgment and order dated 21st February 2008 passed by learned Additional District Judge, Court No. 6, Aligarh as well as the Judgment and order dated 13th January 2003 passed by Judge, Small Cause Courts, Aligarh in SCC Suit No. 118 of 1997.
9. I have heard Sri P.K. Jain learned Senior Counsel assisted by Sri Amitabh Agarwal for the petitioners and Sri Pankaj Agarwal learned Counsel appearing for the respondents and have perused the materials available on record.
10. A perusal of the Plaint indicates that the suit had been filed under Sub-clauses (a), (b), (d) and (e) of Section 20(2) of the Act. Section 20(2) of the Act is quoted below:
Section 20(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:
Provided that....
(b) that the tenant has willfully cause or permitted to be caused substantial damage to the building;
(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;
(d) that the tenant has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with use, or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes;
(e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building;
(f) that the tenant has renounced his character as such or denied the title of the landlord, and that latter has not waived his right of re-entry or condoned the conduct of the tenant;
(g) that the tenant was allowed to occupy the building as part of this contract of employment under the landlord, and his employment has ceased.
11. Learned Judge, Small Cause Courts had framed following eight points for determination:
1. Whether the rent deed dated 1st November 1959 had been executed in respect of the disputed godown ?
2. Whether the defendant first set had committed default in payment of rent ?
3. Whether the defendants were entitled to the benefit of Section 20 (4) of the Act ?
4. Whether the plaintiffs have sent any notice to the defendants for termination of tenancy and whether the said notice was served ?
5. Whether the defendants first set had without the consent of the plaintiff changed the user of the disputed godown against the terms of the tenancy ?
6. Whether the disputed shop had been damaged by the defendants?
7. Whether the defendant first set had inducted defendants second set as a sub tenant ?
8. To what relief, the plaintiff was entitled to ?
12. The Judge, Small Cause Courts decided the first and the second points for determination in favour of the plaintiff. The third point for determination was decided against the plaintiff and it was held that the defendants were entitled to the benefit of Section 20(4) of the Act. The Fourth, Fifth and Sixth points for determination were decided in favour of the plaintiff but the Seventh point for determination was decided against the plaintiff.
13. The Plaintiff-landlord preferred Revision No. 17 of 2003 against that part of the Judgment and decree of the Judge, Small Cause Courts by which the Third and the Seventh points for determination were decided against the plaintiff. The said Revision was partly allowed and the Third point for determination was decided in favour of the plaintiff-landlord but the finding in respect of Seventh point for determination was upheld.
14. Revision No. 1 of 2003 was preferred by Vimla Devi, while Revision No. 16 of 2003 was preferred by the four heirs and legal representatives of defendant No. 1-Dau Dayal Sharma. These two Revisions were, however, dismissed.
15. Learned Senior Counsel for the petitioners submitted that the provisions of Section 20(4) of the Act has been duly complied with as defendant No. 5 Vimla Devi deposited the entire amount on the first date of hearing but the Revisional Court committed an illegality in recording a finding to the contrary. He further submitted that there was no violation of any of the grounds contained in Sub clauses (b) and (d) of Section 20(2) of the Act and the findings to the contrary recorded by Judge, Small Cause Courts as confirmed by the Revisional Court were liable to be set aside.
16. Learned Counsel for the respondent-landlord, however, submitted that there is no infirmity in the impugned Judgment and the petition is liable to be dismissed.
17. As noticed hereinabove, the suit had been filed for alleged violation of Sub clauses (a), (b), (d) and (e) of Section 20(2) of the Act, and findings in respect of the aforesaid sub clauses except Sub clause (e) of Section 20(2) of the Act have been recorded against the defendants.
18. The first question that arises for consideration as to whether the defendants were entitled to the benefit of Section 20(4) of the Act in respect of non-payment of rent under Section 20(2) (a) of the Act.
19. It is not in dispute that the shop had been let out to Ram Babu Sharma, father of defendant Nos. 1 to 5 and that he expired on 4th February 1987. The tenancy thereafter devolved on the heirs and legal representatives of Ram Babu Sharma as joint tenants. What is also not in dispute in the present petitions, is that defendant No. 1 Dau Dayal Sharma deposited Rs. 4200/- under Section 20(4) of the Act but this deposit is admittedly short of the entire amount that was required to be deposited.
20. The suit proceeded ex-parte against defendant No. 5 from 26th October 1998 and it was only in November 2000 that defendant No. 5 filed an application to set aside the order for proceeding ex-parte and this application was allowed by the order dated 15th January 2001. Time was given to file the Written Statement and permission was also given to deposit Rs. 14000/- under Section 20(4) of the Act at her own risk. Learned Judge, Small Cause Courts has accepted this deposit of defendant No. 5 as compliance of the provisions of Section 20(4) of the Act, while the Revisional Court has not only not accepted this deposit but has also found that even this deposit was short of the entire amount that was required to be deposited.
21. The question, therefore, that needs to be determined is whether the amount deposited by defendant No. 5 can be taken into consideration for giving benefit of Section 20(4) of the Act to the defendants.
22. It is the contention of the learned Senior Counsel for the petitioners that the said deposit made by defendant No. 5 can be taken into consideration for the purposes of Section 20(4) of the Act, while the contention of learned Counsel for the respondent-landlord is that since the defendant 1st set were joint tenants and defendant No. 1 had deposited some amount on the first date of hearing for getting the benefit under Section 20(4) of the Act, the other joint tenants cannot be subsequently permitted to make any deposit for getting the benefit of Section 20(4) of the Act.
23. Learned Senior Counsel for the petitioners has strenuously urged that once the order to proceed ex-parte against defendant No. 5 had been set aside, defendant No. 5 could make the deposit to get the benefit of Section 20(4) of the Act and in support of his contention he has placed reliance upon the decision of the Supreme Court in Subhash Chand Jain v. 1st Additional District and Sessions Judge, Saharanpur and Ors. and upon the decision of this Court in Krishna Kumar Gupta v. XIIth Additional District Judge, Allahabad and Ors. 2004 (2) ARC 659.
24. In Subhash Chand Jain (supra), the Supreme Court observed that the first date fixed after setting aside of ex-parte decree and restoration of the suit is the first date of hearing. This decision was followed by this Court in Krishna Kumar Gupta (supra).
25. Learned Counsel for the respondent does not dispute the proposition of law laid down by the Supreme Court in Subhash Chand Jain (supra) but what he contends is that in cases of joint tenancy there cannot be two dates of first hearing of the suit in view of the decision of the Supreme Court in Harish Tandon v. Additional District Magistrate, Allahabad, U.P. and Ors. 1995 (1) ARC 120, wherein the Supreme Court made the following observations:
...According to us, it is difficult to hold that after the death of the original tenant his heirs become tenant in common and each one of the heirs shall be deemed to be an independent tenant in his own right. This can be examined with reference to Section 20(2) which contains the grounds on which a tenant can be evicted. Clause (a) of Section 20(2) says that if the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice or demand, then that shall be a ground on which the landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after the death of the original tenant, his heirs must be paying the rent jointly through one of his sons. Now if there is a default as provided in Clause (a) of Sub-section (2) of Section 20 in respect of the payment of rent, each of the sons will take a stand that he has not committed such default and it is only the other sons who have failed to pay the rent. If the concept of heirs becoming independent tenants is to be introduced, there should be a provision under the Act to the effect that each of the heirs shall pay the proportionate rent and in default thereto such heir or heirs alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, among the heirs as against the landlord what the heirs to interse, is their concern. Similarly, so far as ground (b) of Sub-section (2) of Section 20, which says that if the tenant has willfully caused or permitted to be caused substantial damage to the building, then the tenant shall be liable to be evicted; again, if one of the sons of the original deceased tenant willfully causes substantial damage to the building, the landlord cannot get possession of the premises from the heirs of the deceased tenant since the damage was not caused by all of them. Same will be the position in respect of Clause (c) which is another ground for eviction, i.e. the tenant has without the permission in writing of the landlord made or permitted to be made, any such construction or structural alteration in the building which is likely to diminish its value or utility or to disfigure it. Even if the said ground is established by the landlord, he cannot get possession of the building in which construction or structural alterations have been made diminishing its value and utility, unless he establishes that all the heirs of deceased tenant had done so. Clause (d) of Sub-section (2) of Section 20 prescribes another ground for eviction that if the tenant has without the consent in writing of the landlord, used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes; the landlord cannot get possession of the building unless he establishes the said ground individually against all the heirs. We are of the view that if it is held that after the death of the original tenant, each of his heirs becomes independent tenant, then as a corollary it has also to be held that after the death of the original tenant, otherwise single tenancy stands split up into several tenancies and the landlord can get possession of the building only if he establishes one or the other ground mentioned in Sub-section (2) of Section 20 against each of the heirs of original tenant. One of the well-settled rules of interpretation of statute is that it should be interpreted in a manner which does not lead to an absurd situation.
...
it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolved on the heirs of the deceased tenants jointly. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenant.
26. In Kishore Seth v. Satish Chandra Nigam and Ors. 2005(2) ARC 58, this Court also observed:
I have considered the rival submissions made on behalf of the parties and gave through all the decisions relied upon by them. It is admitted between the parties that late Ram Das, father of the petitioner, was original tenant and after his death, petitioner and his two-brothers inherited the tenancy and they became joint tenants. It is now well settled that heirs to the original tenant succeed single tenancy and in such cases, there is neither division of the premises in dispute nor the rent payable therefor. The position in this regard is well settled by several decisions of Supreme Court including decision in Harish Tandon case (supra) and H.C. Pandey case (supra).
27. In Shikhar Chandra v. Additional District Judge/Special Judge (E.C. Act), Jhansi and Ors. 2005 (3) ARC 437, this Court again relied upon the decision of the Supreme Court in Harish Tandon (supra) and observed that orders passed against a joint tenant is binding upon the other joint tenants:
Lower Appellate Court also based its judgment on the fact that all the heirs of tenant who had died had not been impleaded. In view of Supreme Court authority reported in Harish Tandon v. Addl. District Magistrate 1995 SCFBRC 123: 1995 (1) ARC 221 and A.C. Juker v. K.P. Mantri , all the heirs of the deceased tenant inherit the tenancy as joint tenants and orders passed against one of the joint tenants is binding upon the other joint tenants.
28. In Smt. Usha Rani v. Prescribed Authority, Roorkee and Ors. 1998(34) ALR 202, this Court also made similar observations:
...The law is now well settled that after the death of original tenant, his heirs/legal representatives become only joint tenants and not tenant-in-common. In this connection reference may be had to the case of Harish Tandon v. Addl. District Judge, Allahabad and Ors. 1995 (25) ALR 184 (SC) wherein it was held by the Apex Court that after the death of the tenant, his heirs/legal representatives become only joint tenants and they do not inherit the tenancy rights as tenants-in-common. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable. The heirs/legal representatives, therefore, succeed to the tenancy as joint tenants. The result is that any action of any of the joint tenants binds the others.
In the case of Mohd. Parvez and Ors. v. VIIth Addl. Chief Metropolitan Magistrate/Prescribed Authority, Kanpur and Ors. 1996 (1) ARC 439 it was held that there is a presumption that a joint tenant represents the interest of all other joint tenants. In Smt. Anju Sharma v. Suresh Chand Jain and Ors. 1993(21) ALR 158 after the death of original tenant, suit for ejectment was filed against some of his heirs without impleading all the heirs. The decree for eviction was challenged by those who were not impleaded. Still in the circumstances it was held that the decree passed was binding on all the joint tenants, including those who were not impleaded. In the case of Sunil Kumar v. Special Judge, Jaunpur and Ors. 1994(24) ALR 22 it was held that a person is not entitled for impleadment and contest the matter in appeal, if the matter was fully represented by some of the other joint-tenants before the trial court.
29. It is, therefore, clear that after the death of the original tenant, the tenancy rights devolve on the heirs jointly and any action of the joint tenant(s) binds the other joint tenant(s) even if they have not been impleaded. There is a presumption in law that a joint tenant represents the interest of all the other joint tenant(s) and a decree against a joint tenant would be binding on all the joint tenants even if they have not been impleaded.
30. In view of the aforesaid decisions of the Supreme Court and of this Court the inevitable conclusion that follows is that when defendant No. 1 deposited certain amount he did so on behalf of all the joint tenants and the other joint tenants cannot subsequently deposit certain amount and take the benefit of Section 20(4) of the Act. The view taken by the Revisional Court that the defendants would not be entitled to the benefit of Section 20(4) of the Act as defendant No. 5 had subsequently deposited the amount cannot, therefore, be said to be perverse.
31. In this view of the matter the other contentions raised by the learned Senior Counsel for the petitioners about the findings recorded in respect of Sub clauses (b) and (d) of Section 20(2) of the Act need not be examined as the suit is liable to be decreed for non-deposit of the amount under Section 20(2)(a) of the Act.
32. There is, therefore, no merit in the Writ Petitions. They are, accordingly dismissed.
33. After the Judgment was pronounced learned Counsel for the petitioners, however, prayed that some reasonable time may be given to the petitioners to vacate the premises.
34. The petitioner shall not be ejected from the premises in dispute for a period of four months from today provided the petitioners submits the following undertaking before the Court below within three weeks from today.
1. That the petitioners shall pay damages at the rate of Rs. 200/- per month beginning from the month of April 2008 up to the date he hands-over the possession of the premises to the landlord.
2. That the petitioners shall not induct any other person in the premises.
3. That the petitioners shall handover peaceful possession of the premises to the landlord on or before the expiry of four months.
35. It is made clear that in the event the petitioners fail to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, then in that case, it will be open to the landlord to get the decree executed.