Rakesh Tiwari, J.@mdashThis writ petition arises out of order dated 19.10.2006, passed by the Additional District Judge, Court No. 2, Bijnor (hereinafter referred to as ''the revisional court'') in S.C.C.R. No. 36 of 2004.
2. The aforesaid revision was filed against the judgment and decree dated 25.9.2004, passed by the Judge, Small Causes Court, Bijnor in S.C.C. Suit No. 40 of 1995, Smt. Malti Devi and Ors. v. Ram Kumar and othersby which the suit was decreed and the Defendants were directed to vacate the shop, in dispute, within a period of one month from the date of decree and to pay Rs. 6,000 towards arrears of rent as well as compensation at the rate of Rs. 166.66P per month from the date of institution of suit till the date of delivery of possession.
3. The facts of the case, as culled out from record are that the Plaintiff-Respondents had filed a release application u/s 21(1)(a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act No. XIII of 1972'') against Sri Ram Kumar.
4. It appears that the Plaintiff-Respondents in S.C.C. Suit against Sri Ram Kumar and others had alleged that Sri Ram Kumar alone was the tenant of the property, in dispute, on yearly rent of Rs. 2,000. They alleged that Sri Ram Kumar had not paid rent from May, 1991 to April, 1995, hence they prayed for rent, mesne profit and ejectment of the tenant from the property, in dispute.
5. Smt. Sadhna Agarwal-Petitioner No. 1 filed an impleadment application in the suit on the ground that her husband late Sri Satyendra Kumar Agarwal was also a tenant alongwith Sri Ram Kumar as he was partner of the partnership firm ''M/s. Ram Kumar and Satyendra Kumar'' which was doing business in the tenanted portion.
6. It also appears from record that vide judgment and order dated 20.12.1993, the Special Judge/ Additional District Judge, Bijnor rejected the application moved by the Petitioner for being impleaded as co-Appellant in Misc. Appeal No. 68 of 1991, Ram Kumar v. Smt. Malti Devi and others. The said appeal was filed by Sri Ram Kumar u/s 22 of the Act No. XIII of 1972 against the judgment and order of release dated 17.7.1991, passed by the prescribed authority in the case u/s 21 of the Act No. XIII of 1972. The applicant sought impleadment on the ground that the shop, in dispute, was in the tenancy of firm ''M/s. Ram Kumar and Satyendra Kumar'' and, after the death of Sri Satyendra Kumar, she succeeded the tenancy from her deceased husband.
7. The Additional District Judge, Bijnor rejected the application for impleadment on the ground that the claim of the Petitioner-Smt. Sadhna Agarwal was denied both by the landlady and Sri Ram Kumar against whom the proceedings for eviction was filed and that the documents filed by her did not show that she was in possession of the shop, in dispute, and had been carrying on the business in partnership with Sri Ram Kumar. It was further held that she was not in possession and her tardy impleadment would not be legally countenanced.
8. Aggrieved by the aforesaid findings, Petitioner No. 1 in the instant petition filed Civil Misc. Writ No. 3142 of 1994, Smt. Sadhna Agarwal v. Special Judge Bijnor and others.
9. The writ petition was allowed, in part by judgment dated 1.10.1996 ; the impugned order dated 20.12.1993 passed by Additional District Judge, Bijnor was quashed and the Petitioner-Smt. Sadhna Agarwal was permitted to be impleaded as co-Respondent in the appeal filed by Sri Ram Kumar. She was permitted to file appeal against the release order passed by the prescribed authority within a period of one month from the date of the order. However, before allowing the writ petition, in part, this Court clearly held that impleadment of Smt. Sadhna Agarwal was not being allowed as a co-tenant but in the facts and circumstances of the case, she was being permitted to be impleaded as co-Respondent. The relevant extract of the judgment in the writ petition is as under:
Upon a conspectus of the facts and circumstances of the case, I am of the view that though the Petitioner could not claim entitlement to be impleaded as co-Appellant alongwith Ram Kumar, she could certainly, in the backdrop of the facts and circumstances of the case, be permitted to be impleaded as co-Respondent.
The Petitioner would prima facie seem to be an aggrieved person entitled to file an appeal u/s 22 of the Act and also to claim impleadment as co-Respondent in the appeal filed by Ram Kumar. The appellate court has ample powers u/s 10(2) of the Act to confirm, vary or rescind the order under appeal. It brooks no dispute that Section 10(2) applies mutatis mutandis, to an appeal u/s 22 of the Act, Sri K.M. Garg, appearing for the Respondent Ram Kumar canvassed that partnership stood dissolved with effect from 21.8.1992 vide agreement dated 13.8.1991. This question, in my opinion, can be analytically examined only after the Petitioner is afforded an opportunity of hearing in the matter, prima facie she appears to be an aggrieved person entitled to be heard in the matter...
10. It appears that Sri Ram Kumar, tenant and partner of the firm ''M/s. Ram Kumar Satyendra Kumar'' did not file any written statement in the suit but on her impleadment, Petitioner No. 1 filed written statement, inter alia that after the death of her husband Sri Satyendra Kumar, who was a tenant of the shop, in dispute, the tenancy devolved on her ; that the property, in dispute, was subsequently purchased by one Sri Ram Kumar and Sri Ram Autar sons of Sri Vishambhar Nath ; that heirs of Sri Ram Autar had filed the suit but heirs of Sri Ram Kumar did not join the suit nor notice determining the tenancy was served with the consent of Sri Ram Kumar, as such, the notice was bad. It was also averred that the release application u/s 21(1)(a) of the Act No. XIII of 1972 was filed against Sri Ram Kumar alone and in those proceedings, she alongwith other Petitioners got impleaded as Defendants wherein the landlord had candidly admitted that Sri Satyendra Kumar was in possession of the property, in dispute, as a sub-tenant. It was also averred that in view of assertions contained in paragraph 8 of the release application, it was implied that Sri Satyendra Kumar was in occupation of the tenanted property.
11. The prescribed authority vide order dated 10.2.2000 held that Sri Satyendra Kumar was also tenant of the property, in dispute, and after his death, Petitioners became joint-tenants.
12. Aggrieved by the aforesaid order of the prescribed authority, appeal was filed by the Petitioners and a cross-objection was also filed by the Respondents. The cross-objection of the Respondents was rejected vide order dated 30.7.2002, however, appeal is said to be still pending.
13. It is also apparent from record that Sri Ram Kumar had occupied the property, in dispute, on the basis of a rent deed executed between him and the landlords. A copy of the rent-deed dated 30.10.1972 has been appended as Annexure-9 to the writ petition. Since the rent deed has been relied upon by the courts below in recording a finding of fact that Petitioner was not a tenant, it is being quoted hereinbelow for effective appreciation of the controversy involved in the instant writ petition:
14. The matter came up for consideration and was heard by the trial court. The suit was dismissed vide order dated 20.1.1999.
15. Aggrieved, a revision was filed by the Respondents, which was allowed by the revisional court and the matter was remanded back to the trial court vide order dated 21.5.2004.
16. After the remand, the suit was decreed by the trial court vide order dated 25.9.2004 and revision preferred by the Petitioner has been dismissed by the revisional court vide impugned order dated 19.10.2006.
17. The Petitioners have challenged the impugned orders dated 21.5.2004, 25.9.2004 and 19.10.2006 of the courts below, appended as Annexures-11, 12 and 13 respectively to the writ petition.
18. The contention of counsel for the Petitioner is that the finding of the courts below that the Petitioners are not tenants of the property, in dispute and that no relationship of ''landlord and tenant'' exists between the parties is perverse, illegal and unwarranted as the prescribed authority had recorded a categorical finding that the Petitioners are also tenants of the property, in dispute. It is submitted that the said finding has neither been reversed, set aside nor modified, as such, will operate as res judicata between the parties and in view of the findings, which have now been recorded by the courts below that the Petitioners are not tenants, is perverse.
19. His second submission is that the property, in dispute was purchased by Sri Ram Kumar and Sri Ram Autar sons of Sri Vishambhar Nath and only Sri Ram Autar had given notice without consent of Sri Ram Kumar, as such, the suit was not maintainable and notice determining the tenancy was bad.
20. The third contention of the counsel for the Petitioners is that in view of the fact that in the release application, the Respondents had admitted that Sri Ram Kumar-Respondent No. 3 had sub-let the property, in dispute but the Petitioners being heirs of Sri Satyendra Kumar, no case of sub-tenancy is made out, as such, the finding recorded by the courts below that the Petitioners are ranked trespasser is perverse.
21. He next contended that Sri Ram Kumar occupied the property, in dispute, by virtue of rent deed dated 30.10.1972, which is unregistered document and is not admissible in evidence, hence no reliance can be placed upon the rent deed. In this view of the matter, the finding recorded by the courts below is not sustainable in the eye of law.
22. It is further submitted that the suit is not maintainable as the period of notice u/s 106 of the Transfer of Property Act had expired as notice was served on 1.5.1995 whereas the suit was filed on 29.5.2005 and in any case, the Petitioners having deposited the entire amount of rent either in cash or u/s 30 of the Act No. XIII of 1972, no direction for eviction could have been passed against the Petitioners.
23. Admittedly, Suit No. 40 of 1995 was filed by the Respondents on the allegation that Sri Ram Kumar was tenant of the shop, in dispute on yearly rent of Rs. 2,000. It was claimed by the Respondent-landlords that tenant-Sri Ram Kumar committed default in payment of rent from May, 1991 to April, 1995, in spite of demand made by them, hence his tenancy was determined by legal notice dated 1.5.1995.
24. The trial court framed the following issues for determination:
1. Whether the Plaintiffs are the landlord of the disputed shop and Defendant No. 1 is the tenant at the rate of Rs. 166.66 per month?
2. Whether the Defendant Nos. 2 and 4 are in possession over the disputed shop as tenant?
3. Whether the suit is not maintainable as Defendant Nos. 2 to 4 were not served by notice?
4. Whether the Defendant No. 1 is defaulter for payment of rent?
5. Whether the notice sent by Plaintiffs is illegal?
The trial court decreed the suit vide order dated 25.9.2005 in favour of Respondent Nos. 1 to 4 against which Revision No. 36 of 2004 was filed, which too was dismissed by the impugned order dated 19.10.2006.
25. In the revision, it was contended by the Petitioners that in spite of overwhelming documentary evidence on record establishing the fact that the shop, in dispute, was taken on rent by Sri Satyendra Kumar and Sri Ram Kumar, in which firm ''M/s. Ram Kumar and Satyendra Kumar'' was carrying on its business, the courts below have wrongly relied upon the rent deed in arriving at the conclusion that only Sri Ram Kumar was tenant and not Sri Satyendra Kumar.
26. The contention of counsel for the Petitioner that the firm ''M/s. Ram Kumar and Satyendra Kumar'' was doing business for a long time and in the absence of any objection by the landlords, it has to be presumed that Sri Satyendra Kumar was co-tenant in the said firm and that there was no sub-letting has no force. A perusal of the rent deed shows that only Sri Ram Kumar had taken the shop, in dispute, on rent. An undertaking was also given by him that he will vacate the shop as soon as the landlord so desires without any objection. Since Sri Ram Kumar alone was paying the rent as tenant, Sri Satyendra Kumar was neither a co-tenant nor claimed to be so in view of the definition of ''landlord'' given in Section 3(g) of Act No. XIII of 1972.
27. The other contention of counsel for the Petitioner that the suit was not maintainable in the absence of impleadment of co-tenants has also no force as it appears from the perusal of the impugned order that the revisional court has adverted itself to all the aforesaid questions raised by the Petitioners, which have also been pleaded in the instant writ petition. Cogent reasons have been given by the revisional court as under:
From the facts available on record, it is not the case of Respondent that lease was given for any manufacturing. Language of paper No. C-43 makes it clear that it was not lease for any term existing one year or reserving a yearly rent. Therefore, on the basis of above discussion, I am of the view that lease of the shop in question was not yearly, therefore, registration of the rent deed paper No. C-43 was not necessary. I do not agree with the contention made by the revisionist counsel that in the absence of registration of this document, it is not admissible in evidence. From the perusal of rent deed C-43 it is clear that lease of the shop in question was based on a contract made between Ram Kumar and Malti and Ramautar. It is also clear from this document that the shop in question was not leased to any firm or to Satyendra Kumar. In Revision No. 15/99, Smt. Malti Devi v. Ram Kumar, Additional District Judge Court No. 6 has decided that shop was leased in favour of Ram Kumar. Therefore, I do not agree with the argument made by the revisionist counsel that shop was leased in favour of Satyendra and Ram Kumar.
Initially the suit was filed against the tenant Ram Kuamr giving notice u/s 106 of T.P. Act for termination of tenancy. The other Defendants were made party later on in view of decision made by Hon''ble Allahabad High Court in Writ Petition No. 3142/94. Therefore, I do not agree with the contention made by the revisionist counsel that a notice u/s 106 of T.P. Act was not served on the Defendants who were made party later on. Therefore, the suit is not legally maintainable. This point was also decided by the then Additional District Judge in Revision No. 15/99. From the facts available on record it is clear that rent was not sent to the landlord by Ram Kumar who was tenant in shop in question, therefore, rent tendered for payment by revisionist was not legal and refusal by the landlord of such rent was justified.
On the basis of the aforesaid discussion made above, I am of the view that Ram Kumar Defendant No. 1 was the tenant in shop in question at monthly rent at the rate of Rs. 166.66 per month. He was defaulter in payment of rent. Tenancy was terminated by notice u/s 106 of T. P. Act to Ram Kumar, Satyendra Kumar was not the tenant in shop in question, therefore, it was not necessary to give any notice u/s 106 of the T.P. Act to legal heirs of Satyendra Kumar. Therefore, in absence of such notice the suit is legally maintainable and the notice given was valid.
On the basis of the discussion made above, I am of the view that judgment and decree passed by the lower court is in conformity with the evidence available on record and the decree passed by the learned lower court is liable to be confirmed and the present revision is liable to be dismissed.
The revision is dismissed with costs.
Dated 19.10.2006
Sd/- Illegible
(Shiv Sharma)
Addl. District Judge,
Court No. 2, Bijnor.
28. From a perusal of the judgment rendered in Civil Misc. Writ No. 3142 of 1994, it is apparent that the petition No. 1 was allowed to file objections by her impleadment not as a co-tenant but as a co-respondnet. Hence, the contention of counsel for the Petitioner that in the writ petition, this Court has held the Petitioner No. 1 to be a co-tenant is based on wrong inference from the judgment in the aforesaid writ petition.
29. It is also established from record that only Sri Ram Kumar was the tenant of the disputed shop in respect of which, rent deed was executed.
30. In Suit No. 40 of 1995, the judgment in Civil Misc. Writ Petition No. 3142 of 1994 was considered and a categorical finding was recorded that the Petitioner No. 1 was not a tenant as according to her own admission, neither she nor her husband had ever paid rent to the landlord and also there was no evidence to this effect on record. Moreover, ''landlord'' has been defined in Section 3(j) of Act No. XIII of 1972, which in relation to a building, means a person to whom its rent is or if the building, were let would be payable, and includes, except in Clause (g) the agent or attorney of such person. ''Family'' has been defined in Section 3(f) as under:
''family'' in relation to a landlord or tenant of a building means, his or her
(i) spouse,
(ii) male lineal descendants,
(iii) such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her,
and includes, in relation to a landlord, any female having a legal right of residence in that building.
31. It does not contain brother. Hence, late Sri Satyendra Kumar could not have become tenant as a member of the family and he could become a tenant only if rent had been paid by him to the landlord. Admittedly, there is no evidence to this effect, as such, in the facts and circumstances of the case, late Sri Satyendra Kumar was not a tenant as such, tenancy could not have devolved upon the Petitioners. The trial court has recorded the following finding of fact in this regard in view of judgment dated 1.10.1996 in Civil Misc. Writ No. 3142 of 1994:
32. The contract of tenancy and registration of partnership firm create two independent and distinct right on the tenants and the partners of the firm. It is only in case where the firm is a tenant that tenancy may devolve upon the legal heirs and representatives of the deceased partner during the continuance of his partnership firm but in the instant case, where only Sri Ram Kumar had entered into the tenancy for running a partnership firm, the tenancy would neither devolve upon other partners nor upon the legal heirs or representatives of such deceased partner.
33. The courts below after appreciating the provisions of Section 17(1)(D) of Act No. XIII of 1972 as well as Section 106 of the Transfer of Property Act and the rent deed/ contract entered into between Sri Ram Kumar and the landlord, have rightly come to the conclusion that the shop in dispute was never tenanted to any firm or to Sri Ram Kumar and late Sri Satyendra Kumar jointly. Even in Revision No. 15 of 1999, the revisional court came to the conclusion that the shop was given on rent to Sri Ram Kumar only. Merely because a person has been directed by High Court to be impleaded as co-respondnet will not confer any status of co-tenants unless and until the Courts, on appreciation of documentary and oral evidence, come to the conclusion in this regard.
34. The counsel for the Petitioners has failed to show that the findings recorded by the courts below are illegal and perverse. There is no illegality or infirmity in the impugned orders that the tenant of the disputed shop was only Sri Ram Kumar who had defaulted in payment of rent and that the tenancy was rightly determined u/s 106 of the Transfer of Property Act.
35. Thus, I am of the considered view that there is no illegality or infirmity in the impugned orders warranting interference in the writ jurisdiction.
36. The writ petition is accordingly dismissed. Since the trial court had granted one month''s time to the Petitioners to vacate the shop, in dispute, it is directed that the Petitioners shall handover peaceful possession of the shop, in dispute to the Respondents-landlord within a period of one month from today, failing which, they shall be evicted from the accommodation, in dispute, by coercive process, in accordance with law with the aid of local police.
Costs:
37. So far as cost is concerned, Hon''ble the Apex Court in
So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.
38. Thus, from the law laid down by the Hon''ble Apex Court in the aforesaid case of Salem Advocate Bar Association (supra), it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.
39. Following the ratio laid down in Salem Advocate Bar Association (supra), this Court in Civil Misc. Writ Petition No. 48752 of 2006, Nizamuddin v. Shakoor Ahmad after considering provisions of Rule 9 of Chapter XXII and Rule 11 of Chapter XXI of the High Court Rules, 1951 and provisions of Sections 34, 35A and 35B of the Code of CPC has held that while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.
40. Since it is a frivolous petition against the material on record and the Petitioners have deliberately prolonged the harassment of the Respondent-landlord in lingering on the frivolous litigation, it is directed that apart from payment of arrears of rent, if any, the Petitioners will also pay cost of Rs. 10,000 (Rupees ten thousand) which shall be deposited by the Petitioner before District Judge, Bijnor within two months from today. The arrears of rent as well as the cost so deposited can be withdrawn by the Respondent-landlords without furnishing any security within two months from the date of deposit. In case the Petitioners fail to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.
