-HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 179 (MS) of 2004 Sheel Chand Jain S/o Sh. Asha Ram Jain And others. ……. Petitioner Vs Additional District Judge/ 5th Fast Track Court, Dehradun and others. …… Respondents. Counsel for the petitioners Sh. Ram Ji Srivastava And Sh. J.K. Jain Counsel for the respondent Sh. Alok Singh. Dated: 23-9-2004 Hon’ble Rajesh Tandon J. Heard Sh. Ram Ji Srivastava and Sh. J.K Jain learned counsel for the petitioner and Sh. Alok Singh learned Senior counsel for the respondent. By the Present writ petition the petitioner has prayed for a writ of certiorari praying for the quashing of the order passed by the Additional District Judge/ 5th Fast Track Court Dehradun, respondent No.1 in small cause court revision no. 8 of 2002 Sheel Chand Jain and another Vs. Smt. Vimla Devi and others as well as the order dt. 27-11- 2002 passed by the Civil Judge (Senior Division) 1st Fast Track Court Dehradun, respondent No. 2 in small cause court case No. 27 of 2000 Sheel Chand Jain and another Vs. Amt. Vimla Devi and others. Factual Aspect Of the Case Briefly stated the dispute relates to property known as 34 (Old No. 31) situate at Netaji Street Dehradun. Petitioners are the landlord who purchased the same from Smt Rajeshwari Jain, wife of Sh. Sunil Kumar Jain vide registered sale deed dt. 30-11-1998, originally, mother of the respondent No.3 to 6, namely Smt. Vimla Devi was the tenant in of the property at the rent of Rs. 25.00 per month, since the time of earlier owner of the property. As will appear from the plaint averments that till April 2000, the sum of Rs. 4,925/- was due against Smt Vimla Devi for which the notice was sent on 26.4.2000 along with the sum of Rs. 600 towards the cost of the notice and as such the demand of Rs. 5,925/- having being made by the petitioners from the defendant No.1 but inspite of the notice having being served on May 2000, the defendant No.1 has failed to pay the rent. In paragraph 8 of the plaint defendant No. 1 in his reply notice dt. 22-5-2000 has denied the title of the plaintiff, and the later has not waived his right of re-entry or condoned the conduct of the tenant and therefore the respondents are liable to be evicted on that ground also. Petitioners have also submitted that the transfer deed dt. 30-11-1998 executed by Smt. Rajeshwari Jain wife of Sh. Sunil Kumar Jain by which she has executed her entire share in favour of the plaintiff and the said fact was informed to the defendant No.1 and treating the plaintiff as the landlord of the premise, the defendant No.1 by way of receipt dt. 5-12-1999 has paid a sum of Rs. 5,125/- towards the part of the rent. In April 2000, again the rent became due for the period of more than 4 months for which the notice was sent on 26-4-2000, which was duly served on the defendant No. 1 on 3-5- 2000. Counsel for the petitioners has submitted that the defendant no. 1 has also made substantial alteration in the building without the consent of the landlord and on this ground the defendant No.1 is liable to be evicted from the premises in dispute. During the pendency of the suit Smt. Vimla Devi expired on 7- September 2000 and the plaintiff has substituted the heirs by way of amendment made in paragraph 16 Ka of the plaint. Both the courts below have dismissed the suit. The present writ petition has been filed against the order passed by the courts below. In paragraphs 12 and 13 of the writ petition, the petitioners have disputed that the rent was deposited on the 1 st date of hearing in accordance with the provisions of Section 20(4) of the U.P. Act no.13 of 1972. The petitioners have also stated that the cost of the suit has not been deposited by defendant/respondents, so as to get the benefit of U.P. Act No. 13 of 1972. The respondents No. 3 to 6 are the heirs of Smt. Vimla Devi. The written statement was filed on 31-5-2001by Sh. Sanjay Singh one of the heir of Smt. Vimla Devi who has denied the averments contained in the plaint and has stated that no default has been committed by the defendant. In paragraph 3 of the written statement, the respondents have stated that they have complied with the provisions of Section 20 94) of the U.P. Act No. 13 of 1972and as such they are not liable to be evicted. In paragraph 8 of the plaint, the plaintiffs have stated that the defendants has denied the title of the landlord and the landlord has not waived his right of re-entry and has not condoned the conduct of the tenant and a such the defendant respondents are liable to be evicted. The said plea of the landlord is contained in paragraphs 8 and 9 of the plaint the same are quoted below:- ** ;g fd izfroknh la0&1 us vius vf/koDrk ds ek/;e ls tks mRrj lwpuk i= fnukad 22-5-2000 fHktok;k gS] mlesa izfroknh la0&1 us oknhx.k ds edkunkj ds LoRo dks vekU; fd;k gS vkSj oknhx.k us uk rks iqu izos’k ds vius vf/kdkj dk vf/kR;kx fd;k gS vkSj u izfroknh la-&1 ds mDr vkpkj.k dks {kek fd;k gS vkSj izfroknh la-&1 mDr vk/kkj ij Hkh dkfcy csn[kyh gSA** ^^;g fd ;g mYys[kuh; gS fd Jherh jkts’ojh tSu iRuh Jh lquhy dqekj tSu us fodz; i= fnukad 30-11-1998 dh ftldh jftLVh dk;kZy; lc jftLVkj nsgjknwu esa cgh ua0&1 dh ftyn &498 ds i`"B 20 ,Mh0Qk0cqd ua0& fdh ftYn 678 ds i`"B &1 ls 24 esa dzkekad la[;k 4446 ij fnukad 30-11-1998 ij gqbZ ds }kjk lEifRr la[;k31@34 usrkth eksgYyk nsgjknwu esa viuk dqy gd] fgLlk]LoRo o Hkkx oknhx.k dks fodz; dj fn;k Fkk vSkj oknhx.k gh oknxzLr lEifRr ds rugk ekfyd o vf/kdkjh gSA oknhx.k }kjk Jherh jkts’oh tSu ls mldk dqy vfoHkftr Hkkx dz; djus ds lEca/k esa izfroknh la0&1 dks lwfpr dj fn;k x;k Fkk vkSj izfroknh la0- &1 us oknhx.k ds i{k esa lEikfnr ewy fodz; i= fnukad 30-11-1998 dk voyksdu djus ds mijkUr gh cknhx.k dks urgk oknxzLr lEifRr dk Hkou Lokeh Lohdkj djrs gq;s ctfj;s jlhn fnukad 5-12-1999 eqcfyx 5]125&00 :I;s cdk;k fdjk;s dh ckcr vkaf’kd vnk;xh;k dh FkhA** In reply to paragraph 8 following averments have been made in the written statement, paragraph 8 and 9 of the written statement are quoted below:- ^^ ;g fd okn i= dh pj.k la[;k &8 vlR;] vLohdkj rFkk vekU; gSA ;g dguk vlR; gS fd izfroknhx.kksa us oknh ds LoRo ls baudkj fd;k gksA izfroknh us Li"Vhdj.k ftldks mldk vf/kdkj FkkA Li"Vhdj.k izkIr gksus ij fcuk fdlh ‘’krZ ds vfHkdFku Lohdkj dj fy;sa gksA bl lUnHkZ esa oknhx.kks ds vfHkdFku nks"kiw.kZ gS rFkk iw.kZ ugh gSA blh vk/kkj ij oknhx.kksa dk okn [kf.Mr gksus ;ksX; gSA ;g fd okn i= dh pj.k la[;k&10 ]vLohdkj o vekU; gSA ;g Lohdkj gS fd oknhx.k iz”uxr lEifRr ds edkunkj gSA** In reply to paragraph 8and 9 of the plaint, it has been stated by respondent as under:- ^^;g fd oknh i= dh pj.k la[;k&8 ds ys[k ds foijhr izfroknh la0&1@2 ds izfrokn i= dh pj.k la[;k&8 dk ys[k xyr ,oa vLohdkj gSA ;g dguk xyr gS fd izfroknh us dksbZ Li"Vhdj.k pkgk FkkA okLro esa mRrj lwpuk& i= esa fd;k x;k dFku Li"Vr izfroknhx.k }kjk oknhx.k ds edkunkj ds LoRo dks vekU; djuk gS vkSj izfroknh la0&1@2 viuh ekrk izfroknh la0&1 ds }kjk fd;s x;s dFku ls eqdjus dk svf/kdkj ugh gS vkSj izfroknh la0&1 }kjk fd;k x;k mDr d`R; mlds okfjlku ij cU/kudkjh gS vkSj bl laca/k ea izfroknh la0&1@2 }kjk fd;k x;k dFku focU/k o miefr vfHkdFku nks"kiw.kZ gks ;k okn [kf.Mr gksus ;ksX; gksA izfroknh dks vkifRr;k fof/k o rF;ksa o Lohdkjksfdr ds fo:/k gksus ds dkj.k fujLr gksus rFkk oknh dk okn lO;; fMdzh gksus ;ksX; gSA ;g fd oknh i= dh pj.k la[;k 9 ds ys[k ds foijhr izfrokhn la0&1@2 ds izfrokn i= dh pj.k la[;k &9 dk ys[k xyr ,oa vLohdkj gSA** Applicability 0f Sub-Section (4) 0f Section 20 0f The Act. So far as under Section 20 sub-clause (4) of the U.P. Act No.13 of 1972 is concerned, the plaintiff has denied that the defendant/respondents are entitled for the benefit of Section 20 sub clause 4 of the U.P. Act No.13 of 1972. Further in paragraph 13, the petitioners have stated that since the defendant/respondent have already constructed the house at premises No. 103/42 Darshni Gate Deharadun and 77/1, Nalapani Road Dehrain as will as at Patel Nagar Saharanpur Road and such no benefit can be extended to the defendant/respondents under Section 20(4) of the U.P. Act No. 13 of 1972, the relevant paragraph 13 is quoted below:- ^^;g fd izfroknh la0&1@2 ds izfrokn i= dh pu.k la[;k&20 dks ys[k xyr ,oa vLohdkj gS ;g dguk xyr gS fd izfroknh }kjk /kkjk 20¼4½ dk vuqikyu dj fn;k gksA izfroknh rFkdfFkr tek jkf’k dk dksbZ ykHk ikus dk vf/kdkjh ugh gS oSls Hkh rFkkdfFkr tek /kujkf’k viw.kZ o izFke lquokbZ dh frfFk ds ckn]ckn dh lw> ds rkSj ij tek dh xbZ gSA ;g Hkh xyr gS fd izfroknh oknxzLr lEifRr ds fu”iknu ls eqfDr ikus dks vf/kdkjh gksA izaLrqr ekeys esa izfroknh la0&1@2 m0iz0 vf/kfu;e &13 o’kZ 1972 dh/kkjk 20¼4½ dk ykHk ikus dk vf/kdkjh ugh gSA izfroknh dks vU; LFkku 103@42 n’kZuh xsV] nsgjknwu o 77@1 ukykikuh jksM nsgjknwu rFkk iVsyuxj] lgkjuiqj jksM ij vkoklh; Hkou miyC/k jgs gS rFkk gSA** In paragraph 16 of he writ petition, the petitioners have stated that by virtue of proviso of section 20 Sub-clause 4, the defendant/respondents are not entitled for the protection under the Act, as the defendant/respondents No. 3to 6 have acquired the building in the same city and this fact has also been admitted by the respondent No.5 i.e. Sh. Sanjay Singh in his statement, therefore they are not entitled to get the protection of the Act. Paragraphs 16 and 17 of the writ petition are quoted below:- “That the petitioner took the ground in the suit that tenant-respondent No.s 3-6 have acquired he building in the same city and this fact is also admitted by the respondent no.5 in his statement, therefore his objection is not liable to accept, but the learned trial court did not give any finding into this issue and illegally rejected the suit, filed on behalf of petitioners, for eviction. The learned revisional court has also continued illegality is not considering the same and as such the judgment and orders, passed by the courts below, are illegal and arbitrary. “That the explanation (i) of Section 21(1) of the U.P. Act No. 13 of 1972 provides that where the tenant or any member of his family has built or has otherwise acquired in a vacant state in the same city, no objection by the tenant shall be entertained, but in the present case, the leaned trial court as well as revisional court has not considered the same and despite of admission of the tenant respondent No.3, not only entertained the objection tenant respondent No. 5, but also rejected the suit, filed on behalf of petitioners against the respondent No.s 3 to 6 for eviction. The explanation (i) of section 21(1) of the U.P. No. 13 of 1972 is being quoted below:- Explanation:- In case of a residential building:- (i) Where the tenant or an member of his family [{who has been normally residing with or is wholly dependant on him}] has built or has otherwise acquired in a vacant state or has got vacated after acquisition on a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. [Note:- For the purpose of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purpose as a tenant , allottee or licensee.] The Counter Affidavit has been filed by the defendant/respondents and paragraphs 16 and 17 have not been replied. However it has been stated in paragraph 3 of the counter affidavit that the writ petition is not legally maintainable, Paragraph 5 of the Counter affidavit is quoted below:- “That LRS of Original defendant Smt. Vimla Devi were substituted vide order dt. 19-12-2000. First date of hearing was 27-2- 2001 and prior to 27-2-2001 tenant have deposited entire amount in the Court on 2-2-2001 . In view of this benefit of Section 20(4) of the U.P. Act No. 13 of 1972 was rightly given to the defendants.” I have perused the record and in the statement of PW 1 Sh. Pradeep Jain, he has stated that the defendant/ respondents have constructed the house at 103/42 Darshani Gate Dehradun, 77/1 Nalapani Road Dehradun and the Sh. Sanjay was residing in the said premises as well Khurbara Mohalla Dehradun near Guru Ram Mahilla Inter College, the relevant statement in quoted below:- ^^izfroknh la0&1 ds 1@4 Jherh foeyk nsoh ds iq=x.k gh izfroknhx.k ds 103@42 n’kZuh xsV nsgjknwu] 77!1 Ukykikuh jksM nsgjknwu lat; Hkh blh edku esa jgrk gS ckdh [kqMcqMk eksgYyk esa jgrs gSA xq#jke jk; efgyk baVj dkyst ds iklA foeyk nsodh ds iq=x.k ‘kknh ds igys ls gh blh edku esa jgrs FksA foeyknsoh ds fdjk;snkj jgrs gS mlds iq= uxj ikfydk lhek nsgjknwu ds vUnj vyx vyx edkuksa esa jgus yxsaA** Sanjay Singh was examined as DW1 who has admitted that my elder brother Sh. Surender reside at Darshani Gate Dehradun and the other brother is residing at D.L. Road, the statement is quoted below:- ^^esjs lcls cMs HkkbZ lqjsUnz gS ;g n’kZuh xsV esa jgrs gS edku dk uEcj eq>s ekywe ugh gSA og 10&15 lky ls n’kZuh xsV esa jg jgs gSa ;g gyokbZ dk dke djrs gSA esjs nwljs HkkbZ dk uke fcYyw gS lg Mh0,y jksM ij jgrs gS 8&9 lky yxHkx ls Mh0,y jksM ij jg jgs gSa rhlkjk HkkbZ esa gwW pkSFkk esjs NksVk gS tks esjs lkFk jgrk gSA** Learned Judge Small Cause Court has framed eight issues. Issue No. 1,4 and 5 was with regard tot he default and issue No. 7 was with regard tot the benefit of Section 20(4) of the U.P. Act No.13 of 1972. So far as issued No. 1to 7 are concerned a finding was recorded that the defendant/ respondent have already paid a sum of Rs. 8,500/- on 2-2-2001 and as such the respondents are entitled for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972. The issues were decided against the plaintiffs, so far as issue No.4 is concerned, the Judge Small Cause Court has not considered the proviso to section 20(4) of the U.P. Act No. 13 of 1972 with regard to acquiring of the house in a vacant state any residential building in the same city inspite of the fact that the said averments remained unrebutted. The landlord has preferred the revision and the revisional court has dismissed the revision. Revisional court has recorded a finding of Sh. Sanjay Singh DW 1 has stated that at that at the time of the death of his father, all the four brothers were residing along with his father and the two brothers have separated and have acquired other houses and one brother Sh. Surendra is residing at Darshani Gate Dehradun and the fourth brother is residing with Sanjay. The revisional court has recorded the finding that the proviso will not apply in the present case although after the death of the father of the respondents have acquired houses. In the present writ petition only question of law which requires to be considered with regard to the effect of the proviso to section 20 (4) of the U.P. Act No. 13 of 1972. For ready reference Section 20(4) of the U.P. Act No. 13 of 1972, reads as under:- “ In any suit for eviction on the ground mentioned in clause (a) of sub-section (2) if at the first hearing of the suit the tenant unconditionally pays or [tenders to the landlord deposits in Court] the entire amount of rent and damages for sue and occupation of the building due form him(such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent per annum and the landlord’s cot of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, relieving the tenant against his liability for eviction on that ground. Provided that nothing in this sub-section shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality , notified area or town area. [Explanation – For the purpose of this sub-section- (a) The expression ‘first hearing’ means the first date for any step of counsel’s mentioned in the summons served on the defendant: (b) The expression ‘cost of suit’ includes one-half of the amount of counsel’s fee taxable for a contested suit]. Admittedly, Sh, Kirat Singh was the tenant and after her death Smt. Vimla Devi his wife has acquired the tenancy rights she also died on 7-9-2000 leaving behind the heirs as respondents. Relevant Law On The Question Of Joint Tenancy As Well As Acquisition By the Heirs Of The Deceased. It is settled position of law that by virtue of the Joint tenancy, all the heirs of Smt. Vimla Devi shall constitute a single tenancy, which has dissolves on the heirs. In H.C. Pandey Vs. G.C. Paul, the Apex Court in 1989 SC and Full Bench Rent Cases page 268 has held that the incidence of the tenancy is the same as those enjoyed by the original tenant. The relevant observations are quoted below:- “The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore.” The aforesaid judgment has been followed in the case of Harish Tandon Vs. Additional District Magistrate, Allahabad, U.P. and others 1995 S.C. and Full Bench Rent Cases p 123, their lordship have followed the judgment of H.C. Pandey Vs. G.C. Paul has held as under:- “ It appears to us, in the case of H.C. Pandey Vs. G.C. Paul (supra) it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a singly tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefore and the heirs succeed to the tenancy as joint tenants.” “ In the case of Smt. Gian Devi Anand VS. Jeevan Kumar and others, 1985 SCFBRC 229 SC, the Constitution Bench of this Court in connection with Delhi Rent Control Act, 1958 said: “The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenants including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenant, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefits of the protection has necessarily to be enjoyed on the fulfillment of the condition in the manner and to the extent stipulated in the Act.” The Apex Court in case of Harish Tandon (supra) has also interpreted sub clause (2) of section (12) is concerned. The definition of Section 3(a) shall not be interpreted differently as held in the case of H.C. Pandey case (Supra). The observations are quoted below: - “As has already been pointed out that in the Act with which we are concerned, wherever the expression ‘ member of the family’ has been used, it is consistent with the definition of ‘family’ given in Section 3 (g) and there is no scope for interpreting that expression in a different manner in connection with sub-section (2) of Section 12 of the Act. Once the finding of the High Court that after the death of sheobux Roy, his sons became tenants in common instead of joint tenants, is reversed for the reasons mentioned above, the result will be that it has to be held that because of the admission of Swarup Kailash, the in law of Ganpat Roy, as a partner in the business, there has been a deemed vacancy of the premises within the meaning of sub- sections (2) and (40 of Section 12 and it shall amount to sub-letting within the meaning of Section 25, Explanation (i), which is a ground for eviction under Sub-Section (2) (e) of Section 20 of the Act. The judgment in Mohd. Azeem’s case, does not lay down the correct law and on the other hand we hold that H.C. pandeys case (supra) lays down the correct law.” In Ashok Chintaman Juker and others Vs. Kishore Pandurang Mantri and another AIR 2000 SC 2251, the Apex Court has followed the judgment of H.C. Pandey Vs. G.C. Paul AIR 1989 SC 1470 and has held as under:- “This Court in the Case of H.C. Pandey Vs. G.C. Paul, AIR 1989 SC 1470 taking note of the settled position that on the death of the original tenant, subject to any provision of the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant, held that it is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereafter and that is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. This Court further held that the respondents acted on behalf of the tenants; he paid rent on behalf of his father and he accepted notice on behalf of all; in the circumstances the notice served under Section 106 of the Transfer of Property Act on the respondent was sufficient and it was a valid notice.” “Therefore when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant No. 1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. In that view of the mater the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle the appellants have not justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court and the High