Om Prakash And Anr vs Mishri Lal (Dead) Rep. By His Lr. Savitri ...

4. Both these petitions were analogously heard and thus the present adjudication would address collectively the issues involved.

6. The appellants as plaintiffs instituted Suit No. 252 of 1989 in the Court of Small Causes, Allahabad against Mishri Lal, the predecessor-in- interest of the present respondents seeking his eviction from the suit premises on the ground of default in payment of rent and sub-letting of the suit premises without the knowledge and approval of the landlords i.e. the appellants. The appellants claimed themselves to be the joint owners of the suit premises since the death of their grand- mother Chameli Devi, widow of late Mahabir Prasad on 30.07.1985. They referred to a will dated 28.12.1976 executed by their afore-named grand-mother in support of their claim of joint ownership. They averred that the predecessor-in-interest of the respondents was a tenant of the suit premises since 1968 against payment of monthly rent of Rs. 96/- and the same was rented out on the clear understanding that the tenant would vacate the same on one month’s notice. The appellants alleged that the tenant i.e. the predecessor-in- interest of the respondents paid rent till October, 1979 and thereafter persistently failed to make payment thereof in spite of repeated demands. Due to such default, the relationship between the landlords and tenant became strained, and as claimed by the appellants, he without offering the rent to the landlords, made deposits thereof under Section 30 of the Act, which was invalid and non est in law. Situated thus, the appellants addressed a notice dated 18.08.1989 terminating the tenancy, demanding payment of the arrears of rent within the statutory period of one month with the clear indication that in case of failure to respond to the notice and the request for rent, the tenancy would stand determined and that the tenant would be liable for eviction. According to the appellants the notice was served on 26.08.1989, but despite the same, rent was not paid and consequently the tenancy stood terminated.

9. According to him, Motichand was his nephew and partner in his business and that as he was like his own son, the allegation of sub-letting was unfounded. Elaborating on the facts preceding the deposit of rent in Court, the tenant reiterated that after the refusal by Shri Bhola Nath to accept the rent subsequent to September, 1989, he remitted the rent for the month of October and November, 1989 by money order dated 04.12.1989 but the same was refused again. He stated that thereafter, for the second time, he dispatched the rent for the months of October, November and December, 1989 on 26.12.1989 by money order but similarly the same was refused. According to the tenant, he again on 12.01.1990 remitted the rent for the months of October, 1989 to January, 1990 by money order and as the same was refused again, he started depositing the rent in Court, the first deposit being vide Misc. Case No.41 of 1990 for the months of October, 1989 to January, 1990.

12. The Trial Court, on the basis of the pleadings, framed issues and the parties adduced evidence, both oral and documentary. The appellants in particular examined their father Bhola Nath as PW2, who admittedly used to collect rent from the defendant/tenant till September, 1979, as claimed by them.

13. The Trial Court decreed the suit, both on the ground of default in payment of rent and sub-letting of the suit premises. In reaching this conclusion, it amongst others took note of the testimony of Bhola Nath, son of Smt. Chameli Devi, who supported the pleaded case of the appellants and endorsed the factum of execution of will by Smt. Chameli Devi on the basis of which they (appellants) claimed joint ownership of the suit premises. It also noticed that such joint ownership had not been questioned or disputed by any quarter. It also referred to a compromise decree between the heirs of Bhola Nath and his brother Bachan Lal, rendered in Original Case No. 95 of 1986 qua the will, which too authenticated the claim of the appellants of the suit premises. Noticing the admission of the original defendant/tenant of having paid rent to Bhola Nath, the father of the appellants, the Trial Court negated his challenge to their claim of joint ownership and their status of landlord vis-a-vis the suit premises.

25. Sub-section 4 clarifies that such an order may be made notwithstanding that the tenancy has not been determined with the exception that no such order would be made in the case of tenancy created for a fixed term by registered lease, before the expiry of such term.

35. To reiterate, the High Court by the decisions impugned, had dismissed the suit and the application for release of the suit premises under Section 21 of the Act, principally on the ground of want of standing of the appellants. In the face of the determination made hereinabove, the said conclusion is unsustainable on facts and in law and are thus liable to be set aside, which we hereby do. Having regard to the conclusions recorded on the aspect of default in payment of rent and sub-letting, both statutorily recognized grounds for eviction of a tenant under Section 20 of the Act, it is considered inessential to dilate on the ground of bona fide requirement and comparative hardship. In the wake up of the above, the impugned judgments and orders of the High Court are set-aside and the suit of the appellants is decreed in full. The respondents would vacate the suit premises at the earliest and in no case later than three months from today. The appeals are allowed. No costs.

MARCH 21, 2017.