' A

VASUDHA SRIVASTAVA AND ORS.

v. }.

SMT.KAMLACHAUHANANDANR.

JANUARY 24, 1992

[LALIT MOHAN SHARMA, V. RAMASWAMI AND

B.P. JEEVAN REDDY, JJ.)

UP. Urban Buildings (Regulation of Le11i11g. Rent and Eviction) Act, 1972: c Sections 3(j), 12 and 30:

Tenant inducted by one of the co-owners-The other residing elsewhere-Authority q( such person who inducted the tenant-Whether could be questioned in an eviction suit on the ground q( non-joinder q(

parinding of fact recorded by trial court-Confirmed by High D Court-Whether could be reopened in appeal.

The first appellant and her sister succeeded to the suit premises on the death of their father, Respondent No. 2 was the tenant in the premises. The first appellant who was managing the property on her behalf as also on behalf of her sister, who was residing elsewhere, E instituted a suit for eviction of Respondent No.2 on the. ground of non-payment of rent. She did not join her sister as co-pl.aintiff. The defendant-Respondent No.2 took the pica that his wife was the tenant and that she had already deposited the rent under Section 30 of the U.P, Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, The trial court rejected the defence and decreed the suit.

F On an appal by the defendants, the High Court reversed the decree and dismissed the suit for non-joinder of the plaintiff's sister.

The present appeal, by special leave, is against the High Court's /' order. The appellant contended that the expression 'land-lord' in

G Section 3(j) of the Act was not limited to denote the owner of the house, but should be understood in a wider sense to include a person to whom rent is payable, as also, the agent of such a person, such as the plaintiff-appellant in the instant case.

Allowing the appeal, this Court,

H HELD: I. Since appellant No. 1 was entrusted '"th the man-

.... (

SRIVASTAVA v. CHAUHAN !SHARMA,).] 357

agement of the house as her sister was staying with her husband A elsewhere and it was appellant No. I who had inducted the respondent No. 2 in the premises as a tenant, it was not open to the tenantrespondent to question her authority. If he was desirous of contesting the factual aspect, ii 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 B Court committed a serious error in not appreciating this position.

[358 F-H]

Much significance cannot he attached to the aspect as to whether the husband became defaulter or not when the wife had already offered to pay the rent, in view of the importance of the C issue in the proceeding under Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Jn 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 appellants which has been confirmed by the High Court. The respondent, therefore, cannot be D aliowed to reopen this question. [359C-D]

CIVIL APPELLATE JURISDICTION Civil Appeal No. 243 of 1992.

From the Judgment and Order dated 23.11.1989 of the Allahabad E High Court in Civil Revision No. 480of1983.

Sunil Gupta, Vikram Nath and H.K. Puri for the Appellants.

Manoj Swarup and Ms. Lalita Kohli for ihe Respondents.

F The Judgment of the Court was delivered by

SHARMA, J. Special le.ave is granted.

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 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

J..... 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 H

SUPREME COURT REPORTS

[ J 992] 1 S.C.R.

to the respondent No. 2 Harpal Singh Chauhan, a Government servant, in

1968. Jn 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 defe11ce 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 impugned judgment, reversed the decree and dismissed the suit on the ground of non-joinder of Sarojini Sinlia.

TI1e 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 v..rith the managen1ent of the house as her sister \Vas staying with her husband outside Allahabad and it was Shashi Srivastava who had inducted tJ1e tenant-respondent in the pre1nises 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 nonmaintainability 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, there-

SRJV ASTA VA v. CHAUHAN [SHARMA, J. J 359

fore, to be set aside.

It has been strenuously contended by Mr. Manoj SwarujJ, appearing on behalf of the respondents that in view of the facts and circuinstances 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 B them.

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 C husband defaulter when the wife had already offered to pay the rent. We have considered the matter closely and held 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 D 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.

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 E accordingly allowed, but there will be no order as ., to costs of the High Court and this Court. ,.

G.N.

Appeal allowe.d.