JUDGMENT S.U. Khan, J.
1. Respondents 3 to 10 Smt. Padmawati and Ors. filed a release application in respect of building in dispute which is a shop under Section 12/16 of U.P. Act No. 13 of 1972. In the release application it was stated that M/s Kesarmal Mohanlal and Shri Mohan Lal who were the tenants of the shop in dispute had sublet the shop to petitioners Vijay Kumar and Krishna Kumar. In the release application initialy petitioners were not impleaded as parties. However, they appeared in the said proceedings and stated that they were the valid tenants of the shop in dispute. Petitioners prayed for regularization of their tenancy. In the release application respondents 11 to 22 were impleaded as opposite parties and it was stated that they were co-owners but had no interest in being impleaded as applicants in the release application. In the release application the need set up was for Sushil Kumar Gupta - respondent No. 7. It was also stated therein that respondents 11 to 22 had no objection to the release of the shop in dispute to Sri Sushil Kumar Gupta. The case was registered before R.C.& E.O./D.S.O., Saharanpur as Case petitioners' tenancy stood regularized and they could not be termed as unauthorized occupants. Consequently release application was rejected by order dated 26.2.1979. Copy of the said order is Annexure-2 to the writ petition. Against the said order rent control revision No. 145 of 1975 was filed" which was allowed by A.D.J., Saharanpur on 4.2.1980 and matter was remanded to R.C.& E.O. to decide release application on merit. Copy of the said order has not been annexed. Against the said order of the revisional Court petitioners "filed a writ petition in this Court being Civil Misc. Writ Petition No. 4573 of 1980. The said writ petition was decided through judgment dated 2.2.1984 copy of which is annexed as Annexure-3 to the writ petition. In the said judgment dated 2.2.1984 it was observed that revisional Court had held that petitioners' plea that they were partners in the firm which had previously been the tenant of the property in dispute was not established hence their possession could not be regularized under Section 14 of the Act. In the said judgment it was also observed that from the judgment of the revisional Court it was clear that during the pendency of the revision petitioners purchased a share in the property in dispute from the other co-owners of the property. Petitioners had purchased 1/22 share from one-of the co-owners i.e. respondent No. 15 Vidyawati. This High Court in the earlier judgment held that once petitioners became co-owners of the property in suit no application under Section 14 of the Act would he at their instance. Consequently it was observed that writ petition had become infructuous. However by the ultimate order it was directed that:-
The application for release which is still pending has to be considered on merit treating the shop as vacant.
2. It is difficult to reconcile the two findings recorded in the earlier judgment of this Court. On the one hand it was held that petitioners having purchased a share of one of the co-owners of the property became co-owner hence there was no question of regularization of tenancy on the other hand the matter was remanded for consideration of release application filed by respondents 3 to 10 for the benefit of Sushil Kumar- respondent No. 7. After decision of the earlier writ petition R.C.& E.O. on 25.8,1982 allowed the release application filed by respondents 3 to 10 and released the shop in dispute for being used by respondent No. 7. Against the said order petitioners filed rent control revision No. 441 of 1982 which was dismissed by llnd A.D.J., Saharanpur through judgment and order dated 11.1.1985 hence this writ petition.
3. It is always safer to see as to what the Court has done than what the Court has said. In the earlier judgment of this Court the ultimate direction was for consideration of release application on merits. Hence no fault can be found with the order of Rent Control and Eviction Officer releasing the property for being used by respondent No. 7 as affirmed by the Revisional Court.
4. The Supreme Court in several authorities has held that merger of interest of landlord and tenant must be complete in order to make tenant owner-landlord. Unless merger is complete, tenancy continues and tenant remains as tenant even though he may have purchased part of the tenanted property. A contrary view was taken in Indra Perfumery v. Motilal 1969 (2) S.C.W.R. 967. In view of conflict among different benches of same strength, matter was referred to a 3 Judges bench. The 3 Judges Bench of the Supreme Court in the authority reported in P.K. Jaiswal and Ors. v. Bibi Husn Bano and Ors. 2005 A.I.R. S.C.W. 3240 over ruled the authority of lndra Perfumery (supra) and approved the view that unless merger is complete tenancy continues. In the instant case also, tenant purchased only a small share of one of the landlords, hence he could not say that he ceased to be the tenant and became co-owner.
5. During pendency of the writ petition respondents 12, 13 and 21 died. Substitution application was filed. However, as respondents 11 to 22, the co-owners never contested the proceedings at any stage, hence there is no need to issue notices on substitution applications. They were the co-owners, who never objected to release of the property in favour of respondent No. 7, who is also One of the co-owners. It has also been brought on record that respondent No. 14, 16, 19 and 22 have sold their shares in the property in dispute to the petitioners during pendency of the writ petition.This will also not make any difference. If sale of 1/22 share to the tenant does not prevent the Other co-owners / co-landlords to file eviction proceedings against him, then purchase of 5/22 share will also have the same effect. In the authority of India Umbrella Manufacturing Company v. B. Agarwal it was held that sale of share by non-impleaded (or impleaded as proforma respondent) co-owner would not affect the eviction proceedings initiated by the other co-owner.
6. Accordingly there is no merit in the writ petition, hence it is dismissed.
Tenants petitioners are granted six months time to vacate provided that:
(1) Within one month from today they file an undertaking before the Rent Control and Eviction Officer to the effect that on or before the expiry of six months they will willingly vacate and handover possession of the accommodation in dispute to the landlord-petitioner.
(2) For this period of six months which has been granted to the tenants to vacate they are required to pay Rs. 3,000/- (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 Rent Control and Eviction Officer and shall immediately be paid to the landlord-respondent.
7. In case of default in compliance with either of these conditions tenants-petitioners shall be evicted after one month through process of Court.
8. It is further directed that in case undertaking is not filed or Rs. 3,000/- is not deposited within one month then tenants petitioners 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.
9. Similarly if after filing the aforesaid undertaking and depositing Rs. 3,000/- the accommodation in dispute is not vacated after 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.