LAXMAN SWAROOP GUPTA Vs. FIRST ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) BY means of this writ petition, moved under Article 226 of Constitution of India, the Petitioners/tenants, have sought writ in the nature of certiorari, quashing the impugned judgment and order dated 24 -04 -1995, passed by Judge, Small Causes Court and in S.C.C. suit No. 35 of 1985 and order dated 20 -05 -1998, passed by First Additional District Judge, Haridwar in S.C.C. revision No. 10 of 1995, whereby the appeal against decree passed in S.C.C. suit No. 35 of 1985 was dismissed.

(2.) BRIEF facts, as narrated in the writ petition are that originally one Late Shri Mulakh Raj Chaddha was the original landlord in the shop in question and after his death, Respondent No. 3 Shri Raj Kumar Chaddha (since deceased) was owner and landlord of the house in question (known as 'Chaddha Bhawan' Birla Road, Haridwar), in the ground floor of which, shop in question was let out to Petitioner No. 1 Shri Laxman Swaroop Gupta (since deceased) on rent at the rate of Rs. 25/ - per month. The landlord instituted a suit No. 35 of 1985, against the Defendants (present Petitioners), for recovery of arrears of rent and eviction, before the Judge, Small Causes Court, Haridwar, alleging that the tenant committed default in payment of rent since May, 1977. It was further alleged by the landlord that the Petitioner No. 1 sub -let the shop to other Defendants -Shri Hari Kishan Gupta and Alok Kumar Gupta. Notice dated 27 -07 -1985, was got served by the landlord on the Petitioners, terminating the tenancy on expiry of thirty days after its service. Where after S.C.C. suit No. 35 of 1985 was instituted against the Petitioners. Learned trial court after recording evidence and hearing the parties, found that the tenant has committed default in payment of rent apart from subletting the shop. As such, the Judge, Small Causes Court, decreed the suit on 24 -04 -1995, aggrieved by which Defendants/Petitioners, filed S.C.C. revision No. 10 of 1995, which also after hearing the parties was dismissed by Respondent No. 1. Challenging both the orders, as aforesaid, it is stated in the writ petition that Petitioner No. 1 Shri Laxman Swaroop Gupta was given the shop in dispute, as karta of joint family by Late Shri Mullakh Raj Chaddha. Defendant/Petitioner No. 2 - Hari Kishan Gupta, is younger brother of Late Shri Laxman Swaroop Gupta. It is further stated that a fair price shop was allotted to Shri Hari Kishan Gupta, who is member of the joint family and the said shop is being run in the accommodation in question since 1964. Even in the municipal record, from the period 1971 to 1979, shows that Shri Hari Kishan Gupta is tenant of the shop in question. It is further alleged that in fact Respondent No. 3, used to purchase ration from the fair price shop and the rent used to be adjusted against the price of the items purchased. Challenging the notice dated 27 -07 -1985, served under Section 106 of Transfer of Property Act, 1882, it has been stated that it was a vague notice and not a notice of demand of rent due. It has been further stated in the writ petition that neither water tax or house tax was payable by the tenants nor any default in payment was committed by them. It is also alleged that since the business was being run by the joint family, there was no subletting of the shop in question. In para -13 of the writ petition, it has been further stated that it was well within the knowledge of Respondent No. 3 as well as his father that Petitioner No. 2 Shri Hari Kishan Gupta is doing business in the shop from the period prior to the commencement of U.P. Act 13 of 1972 and Shri Alok Kumar Gupta, Petitioner No. 3 was assisting in the business since then. It is also alleged that this fact gets corroboration also from the sales tax assessment year 1964 -65 onwards. In view of the aforesaid fact, it is alleged in the writ petition that the findings of the learned Judge, Small Causes Court and that of the revisional court are against the law and record. It has been stated that otherwise also, in reply to the notice dated 27 -07 -1985, the Petitioners sent Rs. 2611.94, i.e. more than the rent due to the Respondent No. 3. In view of said fact also, the suit could not have been instituted on the ground of default of payment of rent. Lastly, it is stated that even otherwise since Shri Hari Kishan Gupta and Shri Alok Kumar Gupta were in the business in the shop in question from the period prior to the commencement of U.P. Act, 13 of 1972, their tenancy stood regularized.

(3.) I heard earned Counsel for the parties and perused the record.