Vasudha Srivastava and Ors. Vs. Smt. Kamla Chauhan & Anr.
EmailAppeal: Civil Appeal No. 243 of 1992
(Arising out of SLP (C) No. 13468 of 1990)
(Arising out of SLP (C) No. 13468 of 1990)
Petitioner: Vasudha Srivastava and Ors.
Respondent: Smt. Kamla Chauhan & Anr.
Apeal: Civil Appeal No. 243 of 1992
(Arising out of SLP (C) No. 13468 of 1990)
(Arising out of SLP (C) No. 13468 of 1990)
Judges: LALIT MOHAN SHARMA, V. RAMASWAMI & B.P. JEEVAN REDDY, JJ.
Date of Judgment: Jan 24, 1992
Head Note:
RENT LAW
U.P. Urban Buildings (Regulation of letting Rent and Eviction) Act, 1972 :
Section 12(3A) – Declaration of premises being vacant – Courts below rejected the case of tenancy in favour of respondent but case remanded on another issue – In the meantime sister of appellant filed suit for eviction for non payment of rent – Defence not raising issue of non-maintainability of suit but took up the same plea which was taken in proceedings under section 12(3A) – Courts below recording findings favouring appellant – Appeal allowed.
Section 3(j) – Definition of ‘landlord’ – Expression not limited to the owner of the house but to be understood in a wider sense to include a person to whom the rent is payable as also his agent.
JUDGEMENT:
SHARMA, J. :
1. Special leave is granted.
2. The appeal arises out of a suit for eviction of the respondents from a building in the city of Allahabad. The premises belonged to one G.D. Srivastava, who on his death was succeeded by his two daughters Smt. Shashi Srivastava, the sole original plaintiff since dead (substituted by her legal representatives) and the appellant No. 6 Smt. Sarojini. According to the case of the appellants the property remained under the management of Shashi Srivastava on her own behalf as well as her sister Sarojini Sinha, who was not residing in Allahabad. The house was let out to the respondent No. 2 Harpal Singh Chauhan, a Government servant, in 1968. In 1978 Harpal Singh Chauhan was transferred outside Allahabad, and certain strangers initiated a proceeding under section 12 (3A) of the U.P. Urban Buildings (Regulation of letting Rent and Eviction) Act, 1972 (hereinafter referred to as the ‘Act’) with a prayer to declare the premises vacant. Harpal Singh contested the case on the ground that his wife, respondent No. 1 Smt. Kamla Chauhan and not he was the tenant. It is not necessary to set out the details relating to the said proceeding except stating that Rent Control Officer as well as the appellate authority rejected the case of tenancy in favour of Smt. Kamla Chauhan and held that Harpal Singh was the tenant. It is said on behalf of the appellants that the proceeding, however, has not finally terminated in view of a remand order by the appellate authority on another issue. In the meantime Shashi Srivastava instituted the present suit for eviction of Harpal Singh without Sarojini Sinha joining as a co-plaintiff, as according to the appellant’s case she was not available in Allahabad, on the ground of non-payment of rent. Although the action was opposed, the defendants did not take a plea of non-maintainability of the suit on the ground of non-joinder of Sarojini Sinha as a plaintiff. The defence was once more the same plea which was taken in the proceeding under section 12(3A) that Smt. Kamla Chauhan was the tenant who had deposited the rent under section 30 of the Act. The Judge, Small Causes Court, rejected the defence and decreed the suit. The defendants challenged the decree before the Allahabad High Court under section 25 of the Small Causes Courts Act. The High Court has, by the impugned judgment, reversed the decree and dismissed the suit on the ground of non-joinder of Sarojini Sinha.
3. The learned counsel for the appellants was right in relying upon the definition of ‘landlord’ in section 3(j) of the Act in support of the appeal. The expression is not limited to denote the owner of the house but it has to be, for the purposes of the Act understood in the wide sense to include a person to whom the rent is payable as also his agent. As has been stated earlier, according to the case of Shashi Srivastava she was entrusted with the management of the house as her sister was staying with her husband outside Allahabad and it was Shashi Srivastava who had inducted the tenant-respondent in the premises as a tenant. It was, therefore, not open to the tenant-respondent to question the authority of Shashi Srivastava. If he was desirous of contesting the factual aspect pleaded by Shashi Srivastava, it was essential for him to have raised the issue of non-maintainability in his written statement which was not done. In reversing the decree passed by the trial court the High Court committed a serious error in not appreciating this position. The impugned judgment has, therefore, to be set aside.
4. It has been strenuously contended by Mr. Manoj Swarup, appearing on behalf of the respondents that in view of the facts and circumstances of the case Smt. Kamla Chauhan must be held to be the tenant and not her husband. We are not inclined to go into this issue of fact afresh, as both the courts below have categorically recorded their findings against them.
5. Mr. Swarup, next, argued that in any event the suit is fit to be dismissed as Smt. Kamla Chauhan has deposited the arrears of rent under section 30 of the Act. Stress was laid on the close relationship of husband and wife and it was suggested that it will be highly technical to hold the husband defaulter when the wife had already offered to pay the rent. We have considered the matter closely and hold that whatever be the weight given to this argument in an ordinary case, much significance cannot be attached to this aspect in view of the importance of the issue in the proceeding under section 12 of the Act. In that background the parties went to trial and led their full evidence on the point and the trial court dealt with the dispute thoroughly and recorded a finding in favour of the appellant which has been confirmed by the High Court. The respondent, in the circumstances, cannot be allowed to reopen this question.
6. In the result the impugned judgment of the High Court is set aside and the decree passed by the trial court is restored. The appeal is accordingly allowed, but there will be no order as to costs of the High Court and this Court.
1. Special leave is granted.
2. The appeal arises out of a suit for eviction of the respondents from a building in the city of Allahabad. The premises belonged to one G.D. Srivastava, who on his death was succeeded by his two daughters Smt. Shashi Srivastava, the sole original plaintiff since dead (substituted by her legal representatives) and the appellant No. 6 Smt. Sarojini. According to the case of the appellants the property remained under the management of Shashi Srivastava on her own behalf as well as her sister Sarojini Sinha, who was not residing in Allahabad. The house was let out to the respondent No. 2 Harpal Singh Chauhan, a Government servant, in 1968. In 1978 Harpal Singh Chauhan was transferred outside Allahabad, and certain strangers initiated a proceeding under section 12 (3A) of the U.P. Urban Buildings (Regulation of letting Rent and Eviction) Act, 1972 (hereinafter referred to as the ‘Act’) with a prayer to declare the premises vacant. Harpal Singh contested the case on the ground that his wife, respondent No. 1 Smt. Kamla Chauhan and not he was the tenant. It is not necessary to set out the details relating to the said proceeding except stating that Rent Control Officer as well as the appellate authority rejected the case of tenancy in favour of Smt. Kamla Chauhan and held that Harpal Singh was the tenant. It is said on behalf of the appellants that the proceeding, however, has not finally terminated in view of a remand order by the appellate authority on another issue. In the meantime Shashi Srivastava instituted the present suit for eviction of Harpal Singh without Sarojini Sinha joining as a co-plaintiff, as according to the appellant’s case she was not available in Allahabad, on the ground of non-payment of rent. Although the action was opposed, the defendants did not take a plea of non-maintainability of the suit on the ground of non-joinder of Sarojini Sinha as a plaintiff. The defence was once more the same plea which was taken in the proceeding under section 12(3A) that Smt. Kamla Chauhan was the tenant who had deposited the rent under section 30 of the Act. The Judge, Small Causes Court, rejected the defence and decreed the suit. The defendants challenged the decree before the Allahabad High Court under section 25 of the Small Causes Courts Act. The High Court has, by the impugned judgment, reversed the decree and dismissed the suit on the ground of non-joinder of Sarojini Sinha.
3. The learned counsel for the appellants was right in relying upon the definition of ‘landlord’ in section 3(j) of the Act in support of the appeal. The expression is not limited to denote the owner of the house but it has to be, for the purposes of the Act understood in the wide sense to include a person to whom the rent is payable as also his agent. As has been stated earlier, according to the case of Shashi Srivastava she was entrusted with the management of the house as her sister was staying with her husband outside Allahabad and it was Shashi Srivastava who had inducted the tenant-respondent in the premises as a tenant. It was, therefore, not open to the tenant-respondent to question the authority of Shashi Srivastava. If he was desirous of contesting the factual aspect pleaded by Shashi Srivastava, it was essential for him to have raised the issue of non-maintainability in his written statement which was not done. In reversing the decree passed by the trial court the High Court committed a serious error in not appreciating this position. The impugned judgment has, therefore, to be set aside.
4. It has been strenuously contended by Mr. Manoj Swarup, appearing on behalf of the respondents that in view of the facts and circumstances of the case Smt. Kamla Chauhan must be held to be the tenant and not her husband. We are not inclined to go into this issue of fact afresh, as both the courts below have categorically recorded their findings against them.
5. Mr. Swarup, next, argued that in any event the suit is fit to be dismissed as Smt. Kamla Chauhan has deposited the arrears of rent under section 30 of the Act. Stress was laid on the close relationship of husband and wife and it was suggested that it will be highly technical to hold the husband defaulter when the wife had already offered to pay the rent. We have considered the matter closely and hold that whatever be the weight given to this argument in an ordinary case, much significance cannot be attached to this aspect in view of the importance of the issue in the proceeding under section 12 of the Act. In that background the parties went to trial and led their full evidence on the point and the trial court dealt with the dispute thoroughly and recorded a finding in favour of the appellant which has been confirmed by the High Court. The respondent, in the circumstances, cannot be allowed to reopen this question.
6. In the result the impugned judgment of the High Court is set aside and the decree passed by the trial court is restored. The appeal is accordingly allowed, but there will be no order as to costs of the High Court and this Court.
