GUR DAYAL KHANNA Vs. MALTI DEVI

JUDGEMENT

(1.) In pursuance of an order of remand passed by this Court dated 27-3-1980 allowing Writ Petition No. 1495 of 1977 filed by Amarjit Singh, the predecessor-in-interest of the contesting respondents/landlord, the proceedings in Original Suit No. 126 of 1975 in the Court of Judge Small Causes, Moradabad which had been initiated seeking a decree for the eviction of the petitioners from the premises in dispute and for recovery of arrears of rent and damages for use and occupation, were resumed and the suit was decreed by the trial court on 30-9-1985. This decree was challenged by the tenant in a revision filed under S. 25 of the Provincial Small Cause Courts Act which was dismissed by the respondent No. 1 vide the judgment and order dated 21-9-1988. Feeling aggrieved, the tenant-petitioner has now approached this Court for redress.

(2.) The material facts of this case lie in a narrow compass. The suit referred to above had been filed on the grounds contemplated under S. 20(2)(a), (c) and (e) of the U.P. Act No. 13 of 1972. Initially the trial court had negatived all the three grounds set up by the plaintiff and had dismissed the suit. This decree was affirmed by the revisional court, a writ petition filed by the landlord to which a reference has been made above, this Court while upholding the finding recorded by the courts below on the questions relating to the involvement of the grounds contemplated under S. 20(2)(a) and (c) of the Act did not approve of the findings on the question relating to the involvement of S. 20(2)(e) of the U.P. Act No. 13 of 1972 and remanded the case to the trial court for deciding the issue No. 3 afresh in the light of the observations made in the body of the judgment. In the judgment it was observed that if it is shown that any portion of the accommodation in question had been placed by the tenant in the occupation of Mushtaq Ali (Musarraf Ali), it will be deemed that he had vacated the accommodation and it will be deemed to have been sub-let even though there is no direct or circumstantial evidence forthcoming to show that any rent was payable by Mushtaq Ali (Musarraf Ali) to the tenant. It was further observed that in case the court comes to the conclusion that the accommodation was in occupation of any person other than the relation of the tanant, it may, as laid down in Explanation to S. 25 of U.P. Act No. 13 of 1972 make out a case for directing the ejectment of the tenant. It was, however, clarified that if the court found that any portion of the demised premises was not in occupation of any such person and there was no direct or circumstantial evidence to establish sub-letting, the suit for ejectment may be liable to be dismissed.

(3.) In view of the conclusions contained in the judgment of this Court dated 27-8-1980 referred to above, the findings recorded by the courts below against the landlord on issues Nos. 1, 2 and 4 became final and the only question which remained to be considered was as to whether the decree as claimed could be granted on the ground envisaged under S. 20(2)(e) of the U.P. Act No. 13 of 1972. The pleadings in regard to the fact of sub-letting are contained in para 3 of the plaint. The only assertion made by the landlord in this respect in the aforesaid paragraph was that the tenant had in an unauthorised manner and with a purpose of earning illegal profit, had sub-let the shop in dispute to various sub-tenants without the permission of the plaintiff and was not occupying the shop himself. In the written statement, in reply to the allegations made in para 3 of the plaint the reply given was that the assertions made in para 3 of the plaint were not admitted. In para 7 of the additional pleas contained in the written statement it was asserted that the predecessor-in-interest of the plaintiff had permitted the defendant to sub-let any portion of the shop in dispute and in view of this agreement the defendant had often sub-let some portions of the shop in dispute. In para 14 of the additional pleas, the plea raised was that the plaintiff was not entitled to any decree on the ground of sub-letting.