Court No. - 37
Case :- WRIT - A No. - 71506 of 2010 petitioners :- Genda Lal Alias Gaya And Others Respondent :- Ram Gopal Sahu And Others Counsel for petitioners :- Pankaj Agarwal Counsel for Respondent :- Arvind Kumar,Arun Kumar,Arvind Srivastava,Dharmendra Prasad Singh,Islam Ahmad,Vishnu Gupta
Hon'ble Siddhartha Varma,J.
This application has been filed under Article 227 of the Constitution of India against the judgment and decree dated 28.10.2010 passed by the Additional District Judge Court No.1 Banda in SCC Revision No. 33 of 2009 and against the judgment and decree dated 19.5.2006 passed by the JSCC Court Banda in SCC Suit No 1 of 1991. The plaintiff/respondent, the predecessor- in-interest of the respondents no. 1/1 to 1/4, Sri Ram Gopal Sahu filed SCC Suit No. 1 of 1991 against one Ram Prasad and his Sub tenant Genda Lal for their eviction and for arrears of rent and mesne profits. It was alleged in the plaint that rent @ Rs. 190/- per month from 1.1.1988 to 12.6.1991 was due and therefore the tenants be evicted. When after the institutions of the suit, rent was not paid, defence was struck off by the Trial Court on 6.1.1996 and this order was upheld by the High Court by its order dated 16.7.2002. Thereafter, the Judge, Small Causes Court on 19.5.2006 decreed the Suit on account of default of payment by defendant Mata Prasad and also on account of fact that the premises had been sub-let by Mata Prasad to one Genda Lal. A revision was filed by the defendant. However, when the same was dismissed by the order dated 21.1.2010, the Defendants filed a writ petition being Writ Petition No. 18866 of 2010. This writ petition was allowed on 7.4.2010 on the ground that when both the defendants had filed the Revision then it could not be held by the Revisional Court that the Sub tenant alone had filed the Revision. When the Revision upon remand, came up for hearing, then essentially three issues were raised which were as follows:-
1. Whether the revisionist is entitled to get benefit of Section 20(4) of U.P. Act No. 13, 1971?
2. Whether the revisionist Genda Lal is a sub-tenant in the disputed tenement?
3. Whether the purchaser transferee of respondents- plaintiffs can seek decree of ejectment against the revisionist?
It was held by the Revisional Court that the tenants were not entitled for any benefits under Section 20(4) of the Act No. 13 of 1972. Regarding the second issue, as to whether the petitioner/defendant Genda Lal was a Sub tenant in the disputed tenement, the Revisional Court found that Genda Lal was the brother of Mata Prasad and was not entitled to continue as a tenant in his independent right. Further, the Revisional Court had found that Mata Prasad did not contest the Revision and, in fact, Genda Lal who had filed the Revision had stated in the joint written statement that he was not a tenant. The Revisional Court also found that Genda Lal had also filed an application being Application No. 64/70 of 2003 in which he had claimed an absolutely different case from the one which he had taken in the written statement of the JSCC case and, therefore, the Revisional Court found that Genda Lal was a brother of the original tenant and was not entitled for being given any benefit in the Revision.
With regard to the third issue as to whether the decree dated 19.5.2006 could have been passed when the original landlord had sold the property on 25.4.2006, the Revisional Court held that a transferee pendente lite was bound by the decree and, therefore, he could get the decree executed and, therefore, dismissed the Revision. The petitioners here i.e. Genda Lal and the sons of the original tenant Mata Prasad raised the following three issues:-
(I) The rate of rent was not decided by the Revisional Court. The learned counsel for the petitioners submitted that when the controversy revolved around the non- payment of rent then the Revisional Court ought to have come to a conclusion as to what exactly was the rent which was not paid.
(II) Learned counsel for the petitioners submitted that when it was stated in the written statement that Genda Lal was only a brother who was sitting along with the main tenant in the shop helping out the brother then it could not be said that there was any Sub- tenancy.
(III) Learned counsel for the petitioners submitted that when the original landlord had sold off the property on 25.4.2006 and the decree was passed on 19.5.2006 then this decree was not executable.
Learned counsel for the respondents/landlords, in reply, submitted that when the defence of the tenant had been struck off, as per Order XV Rule 5 of the C.P.C. then for the Revisional Court, it was not essential to go into the question of ascertainment of the rate of rent etc. Furthermore, learned counsel for the respondents/landlords submitted that as per the conclusion arrived at by the Court, the rent payable was Rs. 6,650/- but the tenant had paid only Rs. 3,481/- and, therefore, this finding could not be interfered with.
With regard to Sub-tenancy, the learned counsel for the respondents/landlords submitted that when in the written statement the petitioners Genda Lal had admitted that he was a brother of the main tenant and was only assisting in the running of the shop then he definitely had no right to file the Revision independently. He submits that the Revisional Court's finding that the Vakalatnama was there only of Genda Lal could not be interfered with. He further submitted that “brother” did not come in the family of the tenant and, therefore, the Revision itself was not maintainable.
Regarding the third issue as to whether the decree was proper in view of the fact that the subsequent purchaser was not impleaded before the date of judgment, the learned counsel for the respondents submitted that this issue was no longer res integra and submitted that in view of judgment reported in (2008) 70 ALR 86 (Suraj Bhan vs. 7th Additional District Judge, Court No. 8, Meerut and Others) the subsequent purchaser was entitled to get the decree executed.
Having heard the learned counsel for the parties and after having gone through the record, I am of the view that after the defence was struck off, the defendants did not have much left to defend their case and, therefore, any ascertainment of the rate of rent would be an exercise in futility. So far as the finding regarding the Sub tenancy of Genda Lal, this Court is of the view that the findings cannot be interfered with chiefly on the ground that the Trial Courts judgment was not challenged by the original tenant Mata Prasad and when in the written statement Genda Lal himself had admitted that he was only a brother sitting in the shop to assist the main tenant Mata Prasad then there was no reason to take a different view. Sub-tenancy was definitely there. Also when there was no Revision filed against the decree of the Trial Court, the sale would not prevent the decree from being executed. A subsequent purchaser had every right to get the decree executed.
Under such circumstances, I find that the petition lacks merits and, therefore, is being dismissed.
Order Date :- 30.5.2019 praveen.