JUDGMENT S.U. Khan, J.
1. Sukh Pal Singh since deceased and survived by respondent No. 3 to 12 filed SCC Suit (Suit) No. 187 of 1976 against petitioner Om Prakash and respondents No. 13 and 14 Rudra Prasad Vajpai and Vishwanath prasad In the suit, it was alleged that defendants 2 and 3 were the owners landlords and Sukh Pal Singh plaintiff was their tenant and that plaintiff had sublet a portion of the tenanted accommodation to Om Prakash hence Sukh Pal Singh was landlord of Om Prakash.
2. Relief of eviction was sought on the ground of default in payment of rent and material alteration. The ground of material alteration does not survive as both the Courts below have decided the same in favour of the petitioner.
3. One of the owners landlords Vishwanath Prasad defendant No. 3 / Respondent No. 14 appeared as witness in the suit. True copy of his oral statement has been annexed as annexure 6 to the writ petition. He supported the case of chief tenant / plaintiff Sukh Pal Singh. JSCC, Kanpur through judgment and decree dated 18.8.1983 decreed the suit for eviction as well as for recovery of arrears of rent. Decree was passed by Additional JSCC Kanpur Nagar. Against the said judgment and decree, petitioner filed SCC Revision No. 195 of 1983. X Additional District Judge, Kanpur Nagar through judgment and order dated 3.11.1987, dismissed the revision hence this writ petition.
4. There is no need to decide the question of eviction on the ground of subletting as both the plaintiff/ chief tenant as well as defendant No. 3/ one of the owners landlord admitted in their statement given in the year 1978 that petitioner was inducted as tenant/sub tenant 40 years before i.e. in or about 1938. At that time no Rent Control Act was in force and subletting was not prohibited. In any case owners/ main landlords have not filed the suit hence there is no question of eviction on the ground of sub-letting. Chief Tenant cannot himself seek eviction of sub-tenant on the ground that he has illegally inducted him as sub-tenant.
5. The petitioner asserted that he was direct tenant of landlords owners/ defendant No. 2 and 3/ respondent No. 13 and 14. In respect of default, he asserted that as both Sukh Pal Singh as well as defendant No. 2 and 3 had started claiming landlordship and as be was in doubt about the said fact hence he deposited the rent under Section 30(2) of U.P. Act No. 13 of 1972 which is quoted below: -
Where any bonafide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may until such doubt has been removed or such dispute has been settled by the decision of any competent Court or by settlement between the parties continue to deposit the rent that made subsequently become due in respect of such building.
6. It has been held by the Supreme Court in Kailash Chand v. Mukund Lal that in case of deposit under Section 30 (2) of U.P. Act No. 13 of 1972 it shall be deemed that it has been paid to the person in whose favour it is deposited or to the landlord notwithstanding the fact that under Section 20(4) of the Act only Sub-section (1) of Section 30 has been referred to. The Supreme Court has held that it appears to be only an inadvertent omission.
7. Plaintiff Sukh Pal Singh asserted that inspite of his notices petitioner continued to deposit the rent under Section 30 of the Act hence it was not valid. Both the Courts below held that plaintiff was the chief tenant who had sublet the property in dispute to the petitioner and that petitioner was not direct tenant of owners landlords. Both the Courts below held that continued deposit even after receipt of notice by the petitioner was invalid. Tenant is not entitled to continue to deposit rent after receipt of notice only when he is depositing the rent under Section 30(1) of the Act (on the refusal of landlord to accept the rent). However if rent is being deposited under Section 30(2) of the Act then no such restriction applies.
8. Plaintiff in his oral statement, copy of which is annexure 3 to the writ petition clearly admitted that petitioner/ defendant No. 1 some times paid rent to the owners in his (plaintiffs) account similarly defendant No. 3 Vishwanath Prasad one of the owners landlords in his oral statement, copy of which is annexure 6 to the writ petition, clearly admitted that Sukh Pal Singh had instructed him that when ever Om Prakash paid rent he should accept that and that on the request of Om Prakash that some times there was confusion in the accounting he noted in a small Bahi the payment of the said rent. He further admitted that Om Prakash was residing in the accommodation in dispute for 40 years and he did not take any action against Om Prakash. He further asserted that Om Prakash did not pay any rent on his own behalf, whatever rent he paid it was on behalf of Sukh Pal Singh.
9. Both the Courts below recorded the finding that petitioner was sub tenant of plaintiff Sukh Pal Singh however none of the Courts below decided the material question as to whether their could be said to be any bonafide doubt in the mind of the petitioner regarding the person who was entitled to receive rent (i.e. landlord). In normal course matter should have been remanded to the trial Court to decide this question. However 29 years have already elapsed since the suit was filed hence it will be rather a torture to the parties to relegate them back to square one. Supreme Court in R.E.V. Gounder v. V.V.P Temple and R.C. Kesarvani v. Dwarika Prasad 2002(2) ARC 298 has held that when the matter is pending for long remand must be avoided. Supreme Court in its authority reported in Shail v. Manoj Kumar 2004 ACJ 1213 placing reliance upon Surya Dev Rai v. R.C. Rai has held that in exercise of writ jurisdiction High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or tribunal should have made.
10. The plaintiff/ Chief tenant as well as one of the owners Vishwanath who had appeared as plaintiffs witness admitted in their oral statements that occasionally petitioner paid rent directly to the owner. Even though they qualified their statements by saying that rent was paid by the petitioner on behalf of plaintiff Sukh Pal Singh. This arrangement of paying rent directly by sub-tenant to the owner be it only on behalf of the chief tenant was sufficient to create a doubt in the mind of the petitioner sub-tenant regarding his landlord. In such scenario, it can not be said that there was no doubt regarding landlordship of petitioner. In my opinion, the aforesaid arrangement could give rise to a bonafide doubt in the mind of the petitioner and it can not be said that he was not justified in the least to entertain the idea that he was direct tenant of the owners. Sometimes there is a very thin distinction between sub-letting by chief tenant with express consent and permission of the owner landlord and creation of tenancy by the owner landlord himself in favour of another person of part of tenanted accommodation with express permission and consent of the chief tenant whereby he parts with possession of the part of accommodation in his tenancy occupation.
11. However, the finding of the Courts below that plaintiff was landlord of petitioner is affirmed. Even otherwise under the definition of landlord given in Section 3(j) of the Act, landlord means in relation to a building a person to whom its rent is payable and includes the agent or attorney of such person. When one of the owners landlords himself stated that plaintiff created sub-tenancy with his consent, petitioner becomes valid sub-tenant of plaintiff Sukh Pal Singh. Accordingly, it is directed that Sukh Pal Singh is entitled to withdraw the rent which was deposited by the petitioner under Section 30 of the Act or in the suit giving rise to the instant writ petition.
12. Suit for eviction is dismissed and judgment and decree passed by the trial Court and affirmed by the lower revisional Court in that regard is set-aside. Suit is decreed only for recovery of arrears of rent.
13. Writ petition accordingly is allowed in part
14. I have held in Khursheeda v. Additional District Judge 2004(2) ARC 64 that while granting relief against eviction to a tenant of building covered by Rent Control Act, writ Court is empowered to enhance the rent to a reasonable extent. The rent of Rs. 13.72/- per month for an accommodation in Kanpur is virtually as well as actually no rent. Accordingly it is directed that with effect from December 2005 onwards petitioner shall pay rent to legal representatives of chief tenant Sukh Pal Singh i.e. respondents 3 to 12 at the rate of Rs. 500/- per month.