ONKAR NATH Vs. CHHAJJU RAM

JUDGEMENT

(1.) This appeal has been referred to a Division Bench in order to resolve a conflict, which was noticed by Mr. Justice Bishambhar Dayal, between two single Judge decisions of this Court reported in Haji Abdul Shakoor Vs. The Commissioner, 1955 A.L.J. 32 and Syed Kasim Hussain Vs. Rent Control and Eviction Officer, 1960 A.L.J. 546 The appeal is by the defendant who was the landlord of the accommodation in question. He had let it out to the respondent Chhajju Ram before the U.P. (Temp.) Control of Rent and Eviction Act (here in after to be referred to as the Act) came into force. In Dec. 1952 the appellant sought permission to eject Chhajju Ram and the permission was granted. He, however, did not file a suit for ejectment on the basis of the permission. What he did was that on the 3rd of Feb. 1953 he made an application to the Rent Control and Eviction Officer alleging that Chhajju Ram had already vacated the accommodation in suit and the same be allotted to him. After getting a report from the Senior Inspector an order was passed in favour of the appellant on the 26th of Feb. 1953 in which the Rent Control and Eviction Officer said "I permit him to occupy the premises for his own use." In his application the appellant had alleged that though the tenant Chhajju Ram had vacated the premises he had wrongfully put his nephew, Sri Narain, in the house. After the order of allotment had been passed he applied to the Rent Control and Eviction Officer that Sri Narain be ejected and he (the appellant) he put in possession of the accommodation. Action was taken under Sec. 7-A (2) of the Act and Chhajju Ram as well as Sri Narain were ejected. The appellant was put in possession of the house.

(2.) Chhajju Ram and Sri Narain then filed the suit, out of which this second appeal has arisen, claiming possession from the appellant on two grounds. The first was that the house had never been vacant in fact and the Rent Control and Eviction Officer had, therefore, no jurisdiction to permit the landlord to occupy it for his own use. The second was that in any case on the basis of that permission it was not open to the Rent Control and Eviction Officer to start proceedings under Sec. 7-A (2) of the Act against the plaintiffs and to have them ejected. The suit was contested by the appellant on the ground that Chhajju Ram, the tenant, had actually abandoned the accommodation and had left it. He had wrong-fully put his nephew Sri Narain in it who had no right to occupy the same. In fact, therefore, the accommodation was vacant and an order permitting the landlord to occupy it for his own use could be passed by the Rent Control and Eviction Officer. It was also contended that the plaintiffs had been rightly ejected under Sec. 7-A (2) of the Act.

(3.) The trial court decreed the suit in favour of the tenant Chajju Ram only. The claim of Sri Narain, the nephew, was rejected. Against that decree the appellant went in appeal to the learned Civil Judge, who dismissed the appeal. The Civil Judge recorded the findings that Chhajju Ram had never vacated the accommodation and had all along continued in it, his tenancy had never been terminated and no order releasing the accommodation in favour of the landlord could, therefore, be passed. He held further that Sec. 16 of the Act could not bar the suit. He also held that no valid order of allotment having been passed the plaintiff, Chhajju Ram, could not be ejected under Sec. 7-A(2) of the Act.