ISLAM HUSSAIN Vs. HAJARI LAL

JUDGEMENT

(1.) Heard Sri Sanjiv Singh, learned counsel for the petitioners and Sri Ashok Mehta, learned counsel for the respondents.

(2.) This writ petition is directed against the order dated 04.03.1998 passed by Additional Judge, Small Cause Court, Varanasi, dismissing petitioner's suit for ejectment and recovery of arrears of rent and revisional order dated 17.12.2003 of Additional District Judge, Court No. 1, Varanasi, dismissing petitioners' J.S.C.C. Revision No. 22 of 1998.

(3.) Learned counsel for the petitioners contended that two shops (hereinafter referred to as the "shop A" and "shop B") were let out to respondent no. 1 but he entered into a partnership with respondent no. 2, his nephew, in 1990 and also committed default in payment of rent whereupon the suit was filed for ejectment on the ground of sub-letting and default in payment of rent. The respondent no. 1-tenant admitted in the written statement about partnership with defendant-respondent no. 2 yet both the courts below have dismissed petitioners' suit ignoring admission of tenant-respondent no. 1 about partnership with nephew who does not come within the definition of "family" under Section 3(g) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") and, therefore, besides the fact that there was a sub-letting under Section 20(2)(e) read with Section 25 of Act, 1972, there was also a deemed vacancy under Section 12(1)(b) read with sub-section (2). Both the courts below have erred in law in misconstruing the aforesaid provisions and ignoring admission of respondents-tenants. In support of above submissions, he placed reliance on Apex Court's decision in Harish Tandon Vs. Additional District Magistrate, Allahabad and others, 1995 AIR(SC) 676 and this Court's decision in Dr. Ramesh Chandra Agarwal and others Vs. District Judge, Hardoi and another, 1999 1 AWC 864.