JUDGMENT S.U. Khan, J.
1. This writ petition was allowed by me on 26.10.2005 after hearing only the arguments of the earned Counsel for the landlord-petitioner. On the said date no one appeared on behalf of contesting respondents. Thereafter application for rehearing was filed which has been allowed today.
2. Arguments of earned Counsel for both the parties on restoration application as well as merits of the writ petition were heard on 6.10.2006.
3. Petitioner-landlord's suit for eviction against tenant-respondents (S.C.C. Suit No. 6.9 of 1980) was decreed by J.S.C.C. Varanasi on 24.7.1990. The suit was decreed only on the ground of sub-letting. Against the said judgment and decree Civil Revision No. 132 of 1990 was filed by. the tenants' respondents. VII A.D.J. Varanasi through judgment and order dated 22.4.1995 allowed the revision, set aside the judgment and decree passed by the trial court and dismissed the suit. Through this writ petition judgment and order passed by the revisional court has been challenged.
4. The tenanted shop in dispute was allotted to Bhagwan Das in the year 1949. Bhagwan Das had a real brother by the name of Thadha Ram. The allegation of sub-letting in the plaint was to the effect that Bhagwan Das the tenant had sub-let the shop in dispute to Sugnamal, defendant No. 5 who was son of Thadha Ram and to defendants No. 6 and 7 who were sons of Sugnamal.
5. The defence of the defendants was that the shop in dispute was allotted on 1.12.1949 in favour of Bhagwan Das in his capacity as karta of Joint Hindu Family, that since the start of the tenancy Bhagwan Das and Thadha Ram were doing joint business from the shop in dispute in the name and style of Bhagwan Stores, that in the year 1954 partition took place and Bhagwan Das completely separated from the shop in dispute and the business carried on there from and started his own business in another shop which was situate just after three shops from the shop in dispute and tenancy of the shop in dispute and business carried on there from fell in the share of Thadha Ram, his son and grand sons, however, they continued the business in the old name of Bhagwan Stores and information of the said change was also given to Rent Control and Eviction Officer, Varanasi. Partition took place through registered deed dated 27.7.1954.
6. The sons and grandsons of Thadha Ram pleaded that they were paying the rent. However, it was admitted by them that rent was paid and receipt was issued in the name of Bhagwan Stores.
7. Revisional court mainly placed reliance upon the partition deed. There was absolutely no evidence on the record that partition deed was brought to the notice of the landlord. No tenant can through partition part with the possession of the tenanted shop. If it is done, then it is a clear-cut case of sub-letting. There was absolutely no evidence to show that the shop was let out to Thadha Ram or Bhagwan Das in his capacity as Karta of the Joint Hindu Family. The allotment was only and only in the name of Bhagwan Das.
8. The revisional court also took into consideration that landlord should be aware of change of tenancy and his silence for a long period amounted to waiver of his rights. In this regard reference may be made to the following two authorities of the Supreme Court in which it has been held that if written permission for sub-letting is required then acquiescence, estoppel, waiver or even oral permission is meaningless:
(1) B. Poddar v. A. Poddar ;
(2) G. Singh v. R.K. Aneja , Even otherwise there was no specific evidence regarding knowledge of the landlord in respect of change of tenancy.
9. Accordingly I am of the view that the revisional court committed an error of law in reversing the finding of the trial court on the question of subletting. The finding of the revisional court that there was no sub-letting is erroneous in law and liable to be set aside.
10. Earned Counsel for the respondents has placed reliance upon Mata Prasad and Anr. v. Gopal Agarwal 1978 ALJ 716. It was a case of residential house and it was held that if brother of the tenant started residing with the tenant then it was not sub-letting. In the instant case the tenanted property is a shop and admittedly Bhagwan Das completely withdrew from the tenancy, shop and the business.
11. The other authority cited by the learned Counsel for the respondents is that of Shri Pal Jain v. Vth Additional District Judge, Agra and Ors. 1982 (U. P.) RCC 106. In the said authority it was held that if since the inception of tenancy some one is occupying the premises as member of the Joint Hindu Family then it is not a case of sub-letting. In the instant case there is no finding that shop was allotted to Joint Hindu Family or to Bhagwan Das in the capacity of Karta of Joint Hindu Family or Thadha Ram was carrying on business with Bhagwan Das since inception of the tenancy.
12. The third authority, which has been cited by the earned Counsel for the respondents, is a Full Bench Authority of Andhra Pradesh High Court in Vinukonda Venkata Ramana and Anr. v. Mootha Venkataswara Rao and Anr. 2002 SC and FB Rent Cases 93. The said authority was on the question of default; hence it has got no relevancy with the facts of the instant case.
13. The Supreme Court in Mohammedkasam Haji Gulambhai v. Bakerali Fatehali (D) by L.Rs. AIR 1999 SC 3214, has held that if a shop is let out to the father and afterwards two of his sons start doing business in partnership therefrom and the father completely divests himself from the shop, its tenancy and business carried therefrom then it amounts to sub-letting. The said case arose out of Bombay Rent Control Act. The principle laid down in the said case does not squarely apply to tenancies covered by U.P. Rent Control Act (U. P. Act No. 13 of 1972). In U.P. if father tenant completely divests himself from the tenancy and his sons exclusively use the tenanted shop still it will not amount to sub-letting. However, the principle laid down in the said authority applies in case of brothers (like the present one), as under U.P. Act No. 13 of 1972 brother is not included in the definition of family member (while son is included). Accordingly when Bhagwan Das completely divested himself from the tenancy of the shop, sub-letting came into existence.
14. It may also be mentioned that at one stage the Court tried to settle the matter through compromise between the parties. Tenant offered to enhance the rent to a reasonable extent. However, the landlord refused to enter into any compromise with the tenant.
15. Accordingly writ petition is allowed. Impugned judgment and order passed by the revisional court is set aside and that of the trial court is restored.
16. Tenants-respondents are granted six months time to vacate provided that:
(i) Within one month from today they file an undertaking before the Judge, Small Causes Court to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the accommodation in dispute to the landlord-petitioner.
(ii) For this period of six months which has been granted to the tenant to vacate they are required to pay Rs. 6,000 (at the rate of Rs. 1,000 per month) as damages for use and occupation. This amount shall also be deposited within one month before the Judge Small Causes Court and shall immediately be paid to the landlord-petitioner.
(iii) Entire rent due till October, 2005 is deposited before the trial court within one month from today for immediate payment to the landlord (The amount of Rs. 3,000 deposited under order dated 14.11.2005 shall be deemed to be rent paid from November, 2005 till date).
17. In case of default in compliance with any of these conditions, tenants-respondents shall be evicted after one month through process of Court.
18. It is further directed that in case undertaking is not filed or rent due and Rs. 6,000 are not deposited within one month then tenants-respondents shall be liable to pay damages at the rate of Rs. 2,000 per month since after one month till the date of actual vacation.
19. Similarly, if after filing the aforesaid undertaking and depositing the due rent and Rs. 6,000 within one month the accommodation 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. 2,000 per month since after six months till actual vacation.