HIROO BISHT Vs. DISTRICT JUDGE, ALMORA

JUDGEMENT

(1.) BY means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned judgment and decree dated 6.5.1981 passed by Judge Small Causes Court, Almora (for short J. S. C. C.) (Annexure 7 to the petition) and the judgment and order dated 12.4.1984 passed by the District JudgeAlmora in the revision. By the judgment and decree dated 6.5.1981, the leamed J.S.C.C. has dismissed the suit of the plaintiff -petitioner for eviction and recovery of arrears of rent and damages. By the order dated 12.4.1984, the revision preferred against the judgment and decree dated 6.5.1981 has been dismissed.

(2.) BRIEF facts giving rise to the present writ petition, according to the petitioner, are that the petitioner -plaintiff Smt. Hiroo Bisht instituted a suit bearing S.C.C.Suit No. 10 of 1980 against two defendants Raghunath Verma and Abdul Gafoor Khan (respondent nos. 3 and 4 herein) in the court of J.S.C.C./Munsif Almora for their ejectment from the shop in suit and for recovery of arrears of rent and damages as stated in the plaint. According to the petitioner -plaintiff, she is the landlord of the shop in suit of which full particulars are given in the plaint; that the defendant no.1 (respondent no. 3 herein) is a tenant in the shop in suit @ Rs. 40/ - per month; that the defendant no.2 (respondent no. 4 herein) has been doing business of readymade garments therein; that the defendant no.1 made the plaintiff -petitioner understand that the defendant no. 2 is merely his servant and the business belongs to defendant no. 1 and that the defendant no. 1 has been payment rent upto 30.9.1979. The plaintiff further stated that for some time past, the defendant no. 2 has put up the sign board of 'Mumtaz Garments in the shop in suit and on enquiry it came to light that the said business of readymade clothes actually belongs to the defendant no. 2 and that defendant no. 1 has nothing to do with the said business. Thus the defendant no. 1 had sublet the shop in suit to defendant no. 2 without any legal right, consent or permission of the plaintiff -landlord. The petitioner -plaintiff served a notice dated 16 -11 -1979 under Section 106 of the Transfer of Property Act on defendant no.1 determining his tenancy and defendant no. 2 for being in illegal occupation of the same. The defendant nos. 1 and 2 in reply claimed themselves to be the tenants in their own right. In June 1980, the plaintiff learnt that the defendant no. 2 had deposited amount of Rs. 360/ - on 22 -3 -1980 in the bank account of the plaintiff without any right; that the plaintiff sent a notice to defendant no.2 and thereafter on receiving a wrong reply of the said notice refunded Rs. 360/ - through money order, which was refused by the defendant no.2 to accept. As such, both the defendants are liable for eviction from the shop in suit and the defendant no. 1 is also liable for payment of arrears of rent and damages as claimed in the suit.

(3.) THE defendant no.1 resisted the suit and filed his written statement admitting the relationship of landlord and tenant and the monthly rent of the shop in suit being Rs. 40/ -. He admitted receipt of the notice and asserted that he had deposited the rent upto 30 -8 -1980 and contested the suit mainly on the ground that he has been a tenant of the shop in suit for the last 30 years; that the shop in suit is governed by provisions of the U.P.Act No. 13 of 1972; that the notice under Section 106 of the Transfer of Property Act is illegal and invalid; that the defendant no. 2 is not a sub -tenant rather the two defendants had started a partnership business in the shop in suit in 1954. It is also asserted that the said partnership had been accepted by the plaintiff -petitioner and, therefore, both the defendants have become tenants and that the defendant no.2 as partner of defendant no.1 in the partnership business is within the knowledge of the petitioner and her predecessor -in -title; that the plaintiff has been accepting the rent from the defendant no.2 without any objection. It is also asserted that the plaintiff has been residing in the upper storey of the shop in suit and she wants to let out the shop to some one else after evicting the defendants.