RADHEY SHYAM Vs. ADDITIONAL DISTRICT JUDGE UNNAO

JUDGEMENT

(1.) THIS writ petition is directed against an order passed by the VI Additional District Judge, Unnao dated 21-5-1982. By this order revision application filed by opposite party no. 2 was allowed, the shop in question was declared to be vacant and the case was remanded to the Rent Control & Eviction Officer for the determination of the question whether the application for release made by opposite party no. 2 was genuine. THIS order has been challenged by Radhey Shyam and Hari Shanker in this writ petition.

(2.) IN order to appreciate the controversy between the parties it would be appropriate to state the facts of the case in some detail. The dispute relates to shop no. 117, situate in mohalla Jagannath Ganj in the city of Unnao. The Shop is owned by opposite party no. 2 and petitioner no. 1 Radhey Shyam is the tenant. Radhey Shyam has been doing business of gold-smith for the last 20 years and his main business is to polish and clean ornaments. According to petitioner no. 1 Radhey Shyam, Hari Shanker petitioner no. 2 is his employee in the said shop. It is maintained by petitioner no. 1 Radhey Shyam . that in fact the business is carried on by him and Hari Shanker petitioner no. 2 is his employee in the shop in question. The record of this writ petition indicates that in 1971 a suit was filed by Jagannath Prasad Srivastava against Radhey Shyam and Hari Shanker for their eviction from the shop in dispute. The ground taken in the suit was that Radhey Shyam had inducted Hari Shanker as sub-tenant. The suit was filed in the Court of Munsif South, Unnao and was numbered as suit No. 30 of 1971. It appears that on 14-5-1971 the said suit was compromised between the parties. The terms of the compromise are contained in Annexure 3 to the writ petition. The compromise states that the defendants had deposited the arrears of rent in court and the rest of the rent would be paid by 1st of November, 1971. The compromise also provides that with effect from November, 1971 the rent of the shop would be Rs. 25/- per month. It was also provided that plaintiff will have no right to eject Radhey Shyam. The compromise further states that Hari Shanker has no concern with the shop in question. Costs of the suit were given up by the plaintiff. The prayer in the compromise Annexure-3 is that the suit has been compromised in terms indicated in the application and that a decree be passed in the terms of the said compromise. After nearly seven years of the compromise referred to above Jagannath Prasad Srivastava moved an application, impleading Radhey Shyam and Hari Shanker, purporting to be under section 16, read with section 12 of U. P. Act XIII of 1972. IN the application, which is Annexure-1 to the writ petition it was stated that Jagannath Prasad Srivastava is the owner of shop No. 117, situate in mohalla Jagannathganj in the city of Unnao ; that the applicant Jagannath Prasad Srivastava wants to rebuild a new shop and a new stair-case for the upper storey; that for reconstruction of the accommodation in question the applicant had submitted a plan in the Municipal Board, Unnao, which has been sanctioned and approved. IN paragraph 4 of the application it was stated that Radhey Shyam was the tenant of said shop no. 117 but he has shifted his business to Kanpur. It is further stated that Hari Shanker is neither member of the family of Radhey Shyam nor is he concerned with the shop in question. The allegation is that Hari Shanker has been set up in the shop as Sikmi-tenant without the consent of the landlord. IN paragraph 6 of the application it has been stated as follows:

(3.) MR. H. N. Tilhari submitted that the order passed by the Additional District Judge is based upon appreciation of evidence and the court has examined the affidavits filed by Bajrang Singh, Jagdish Prasad and Ramesh Chandra who have stated that Radhey Shyam has left the shop in question and Hari Shanker carries on business in the shop in dispute. He has also relied upon the report of the Inspector paper no. 13 which indicates that Radhey Shyam is not in possession of the shop but Hari Shanker is in possession. By reference to the affidavits and the report of the Inspector it is contended by MR. H. N. Tilhari that the finding that the accommodation is vacant is based upon appreciation of oral evidence and hence this court may not interfere with the finding of fact so arrived at. In my opinion, it it not possible to accept this line of argument pressed by MR. H. N. Tilhari. If Radhey Shyam is the tenant and Hari Shanker has been held not to be a sub-tenant the tenancy subsists. All that is clear from the affidavits on record is that Hari Shanker manages the shop and Radhey Shyam is not to be seen there. This position is consistent with Radhey Shyam being a tenant and Hari Shanker an employee. It is a matter of common knowledge that persons carry on business at several places in shops of which they are tenants. It is not possible for one particular person to be present at shops at several places and if a particular businessman has a shop at more than one places he has to employ persons who would look after management of the business at one of the shops. In my view the mere fact that Hari Shanker is generally found at the shop in question does not necessarily establish that Radhey Shyam has nothing to do with the business. If Radhey Shyam is a tenant and his tenancy subsists as is clear from Annexure-7 he is justified in employing persons to carry on business at places more than one. In my opinion the affidavits and the report of the Inspector do not establish that the tenancy of Radhey Shyam has come to an end. The presence of Hari Shanker in the shop is consistent with Radhey Shyam being the tenant and since Radhey Shyam carries on business at Kanpur and Unnao he would well within his rights to manage his business at Unnao through an employee. Radhey Shyam has stated that Hari Shanker is his employee.