JUDGMENT S.U. Khan, J.
1. This is tenants' writ petition arising out of suit for eviction filed by landlord respondent No. 3 Ramesh Chand Agarwal in the form of SCC suit No. 32 of 1994. Landlord stated in the plaint of the suit that property in dispute which is in the form of two shops was let out through registered lease deed to Roop Kishore Agarwal petitioner No. 1 however he had sublet the same to petitioner No 2 and 3 Smt Aasha Agarwal and Sri Ashok Kumar Agarwal, Smt Aasha Agarwal is wife of Sudhir Agarewal who is real brother of Roop Kishore Agarwal petitioner defendant No. 3. Ashok Kumar is also real brother of Roop Kishore Agarwal. Property was let out through registered lease deed in August 1969.
2. Defendants took up the case that accommodation in dispute was taken on rent by Hindu Undivided Family (HUF) of which all the three brothers were members and their father Vishan Narain Agarwal was Karta hence there was no subletting. Trial court did not believe the version of the tenants. Trial court held that brother and brother's wife are not members of family as defined under Section 3(g) of the Act hence sub-letting was established. Additional JSCC, Bareilly decreed the suit for eviction through judgment and decree dated 7.8,99. It may be mentioned that the rent of the shop in dispute is Rs. 75/- per month. Against judgment and decree passed by the trial court, petitioners filed SCC Revision No. 25 of 99. IV A.D.J, Bareilly through judgment and order dated 2 4.l0.2000, dismissed the revision hence this writ petition.
3. In my opinion, both the courts below have rightly held that building in dispute was not allotted to HUF. Courts below rightly held that in case building had been let out to HUF it should have been mentioned in the registered lease deed while the said deed was only in between landlord and Roop Kishore Agarwal petitioner defendant No. 1. Courts below also rightly held that in case building in dispute had been let out to HUF then the lease should have been in favour of father of defendant No. 1 and 3 as he was alive at the time of execution of lease deed and he was Karta of HUF.
4. It is true that creation of partnership by the tenant was not prohibited under old Rent Control Act (U.P. Act No. 3 of 1947). U.P Act No. 13 of 1972 for the first time prohibited creation of partnership by the tenants. However defendants petitioners did not take any such case that after lease of the shop in dispute and before July 1972 when U.P. Act No. 13 of 1972 was enforced any formal partnership took place among them. In fact defendants did not plead that at any point of time any formal partnership was entered into in between them. The only defence was that building in dispute was let out to HUF hence they all were entitled to do business there from.
5. In respect of default, both the courts below have held that as tenant had deposited entire arrears of rent, interest and cost of the suit on the first date of hearing Hence they were entitled to benefit of Section 20(4) of the Act.
6. learned Counsel for the tenant has argued that landlord in his oral statement copy of which is annexure 5 to the writ petition admitted that the firm with the name of Agarwal Brothers having three partners who were doing business from the shop in dispute since long was the tenant. In the said statement there is no such admission.
7. learned Counsel for the tenant has cited several authorities in respect of sub-letting including the authority of Supreme Court reported in Resham Singh v. Raghubir Singh 2000(4) ALR 636 (SC). In the said authority, the tenant had gone underground due to pendency of criminal case against, him and in his absence his brother was looking after the business from the tenanted shop. In such situation Supreme Court held that there was no sub-letting. The said authority is not, at all applicable to the facts of the instant case, The authority reported in P. Singh v. R. Gautam 2004(4) SCC 794 has also been cited. The said authority was from Himachal Pradesh. In the said authority it was held that if partnership was a device to cover the sub-letting then it amounted to sub-letting. In the instant case it has been found that all the three defendants were carrying on their independent business from the shop in dispute hence the said authority is not applicable. learned Counsel for the tenant has also cited C.M. Shah v. CIT AIR 1992 SC 66 dealing with the concept of HUF. In the instant case it has been held that building was not let out to HUF.
8. Trial court has found that sub-letting stands proved even by the statement of DW3 Roop Kishore Agarwal, He admitted that he was looking after the Income Tax matters but he could not say that any partnership deed was registered with Income Tax Department. He also admitted that another firm in the name of M/s Cage and Cage was also working of which Aasha Agarwal defendant No. 2 was the owner. He could not file any documentary evidence to show that there was any partnership firm in between him and his brothers. He also admitted that all the three brothers were residing separately and suit for partition in between defendants and their other family members had also been decreed in 1980-81. He also admitted that on the date when registered lease deed was executed his father was present at Bareilly. The trial court from the said fact rightly held that all the three brothers were carrying on separate business from the accommodation in dispute and were paying tax separately. Trial court further held that defendant failed to show that in the Income Tax Department they had shown in their income tax return that they were doing business in partnership with the name of Agarwal Brothers.
9. It has been held by the Supreme Court in Harish Tandon v. A.D.M. AIR 1995 SC 676 that if son-in-law is made partner of the firm it gives rise to vacancy and subletting under U.P Act No. 13 of 1972.
10. I do not find any error in the findings of the courts below in respect of sub-letting.
11. Accordingly writ petition is dismissed.
12. Tenant petitioner No. l is granted six months time to vacate provided that:
(1) Within one month from today he files an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months he will willingly vacate and handover possession of the property in dispute to the landlord respondent.
(2) For this period of six months, which has been granted to the petitioner to vacate he is required to pay Rs. 9000/-(at the rate of Rs. 1500/- 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 respondent.
13. It is further directed that in case undertaking is not filed or amount of Rs. 9000/- is not deposited within one month then tenant petitioner No. 1 shall be liable to pay damages at the rate of Rs. 3000/- per month since after one month till the date of actual vacation.
14. Similarly if after filing the aforesaid undertaking and depositing Rs. 9000/-, the property in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 3000/- per month since after six months till actual vacation.