JUDGMENT S.U. Khan, J.
1. This writ petition was initially allowed on 5.12.2005 without hearing any one on behalf of tenants respondents as on said date no one had appeared on their behalf. Later on restoration/ rehearing application was filed, which was allowed on 6.2.2006 and judgment dated 5.12.2005 was set-aside. Thereafter learned Counsel for both the parties were heard on the merits of the writ petition on 13.2.2006 and 15.2.2006. On 15.2.2006 after completion of argument of learned Counsel for both the parties' judgment was reserved.
2. This is landlord's writ petition arising out of suit for eviction filed by him against tenant respondent No. 3 and 4 Pratahu Dayal and Net Ram. The suit was registered as SCC Suit No. 39. of 1981. The eviction was sought on the ground of default and sub-letting. It was alleged in the plaint of the suit that Prabhu Dayal had been allotted the house in dispute; that Prabhu Dayal had constructed his own house and had shifted therein along with his family and had allowed Net Ram defendant No. 2 his real brother to occupy the house which amounted to sub-letting. Trial court/ JSCC / I Munsif Bulandshahr did not accept the contention of the plaintiff and held that occupation of brother did not amount to sub-letting. The suit was therefore dismissed on 19.11.1933. Against the said judgment and decree landlord petitioner filed R.C. Revision No. 102 of 1983. II Additional District Judge, Bulandshah dismissed the revision on 26.8.1985, hence this writ petition by the landlord.
3. Brother is not included in the definition of family as provided under Section 3(g) of U.P. Act. No. 13 of 1972. By virtue of Sections 20(2)(e), Section 25 and Section 12(1)(b) of the Act, if a tenant allows a tenanted building to be occupied by any person who is not a member of his family then it amounts to sub-letting. Supreme Court in G. Trivedi v. S. Devi has held that residence of brother along with the tenant does not amount to subletting however if tenant has completely vacated the tenanted building and the same is in exclusive occupation of his brother then it amounts to sub-letting. The fact that Prabhu Dayal has constructed his own house and had shifted therein has not been denied.
4. learned Counsel for the petitioner has argued that Prabhu Dayal and Net Ram along with their two more brothers constituted a Joint Hindu Family and building was allotted in favour of Joint Hindu Family hence exclusive residence of Net Ram did not amount to sub-letting. Prabhu Dayal was not every the eldest brother. Net Ram is elder to Prabhu Dayal. Building was allotted to Prabhu Dayal. In the allotment order, it was not mentioned that it. was being allotted to Joint Hindu Family of which Prabhu Dayal was karta. Even otherwise there is absolutely no evidence to show that at any point of time before filing of the suit it was asserted that Joint Hindu Family was the tenant.
5. On 13.2.2006 when arguments were heard in part the following order was passed in the order sheet:
Heard learned Counsel for the parties.
Even though it is neither mentioned in the judgment of the courts below not it was argued by learned Counsel for the petitioner however I am tentatively of the opinion that proviso to Section 20(4) of U.P. Act No. 13 of 1972 may be attracted to the facts of the case in case plea of the tenant that house in dispute was not allotted to Prabhu Dayal in his personal capacity but entire Joint. Hindu Family consisting of four brothers Prabhu Dayal, Net Ram and two others is accepted.
Put up on 15.2.2006 to hear the learned Counsel on his point.
6. learned Counsel for the tenant has not been able to show that in case the tenant's case to the effect that house in dispute was allotted to Joint Hindu Family is accepted then proviso to Section 20(4) of the Act will not be applicable. According to the said proviso "nothing in this Sub-section [20(4)] shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in vacant state or has got vacated after acquisition any residential building in the same City."
7. If Net Ram and Prabhu Dayal are held to be joint tenants then acquisition of a house of Prabhu Dayal deprives Net Ram also of the benefit of Section 20(4) of the Act. It has been held by the Supreme Court in Harish Tandon v. A.D.M. that in case of joint tenants anything done by me of the tenants is taken to have been done by all the tenants. In view of this if the case of allotment of the house in dispute to the Joint Hindu Family is taken to be correct, suit for eviction will have to be decreed on the ground that tenants were defaulter and not entitled to the benefit of Section 20(4) of the Act (both the courts below granted benefit of the said sub-section to the tenants).
8. Accordingly writ petition is allowed. Judgments passed by both the courts below, decree of the trial court and order of the revisional court dismissing the suit for eviction are set-aside. Suit for eviction and recovery of rent till the date of suit, pendente lite and future is decreed.
9. Tenants respondents are granted six months time to vacate provided that:
(1) Within one month from today they file an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the property in dispute to the landlord-petitioner.
(2) For this period of six months, which has been granted to the respondents to vacate they are required to pay Rs. 3000/- (at the rate of Rs. 500/- per month) as damages for use and occupation. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlord.
(3) Entire rent at the decreed rate due till date is deposited within one month for immediate payment to the landlord.
10. It is further directed that in case undertaking is, not filed or decreetal amount and amount of Rs. 3000/- is not deposited within one month then tenants respondents shall be liable to pay damages at the rate of Rs. 1000/- per month since after one month till the date of actual vacation.
11. Similarly, if after filing the aforesaid undertaking and depositing decreetal amount and Rs. 3000/-, the property in dispute is not vacated on or before six months then damages for use and occupation shall be payable at the rate of Rs. 1000/- per month since after six months till actual vacation.