GULAM RASOOL Vs. PUSHPA DEVI AND OTHERS

JUDGEMENT

(1.) The important question of law arising for determination in this case is whether a sub-tenant occupying an accommodation with the express or implied consent of the landlord is entitled to be impleaded in an application under Sec. 21 (1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (U.P. Act No 13 of 1972), for short, Act. The question has arisen in the circumstances hereinafter narrated.

(2.) In the year 1980 the landlords, who have been impleaded in the present writ petition as opposite parties 1 to 3, filed an application against Sri Abdul Hakeem for release of two adjoining shops (described in the application as two door shop) comprised in house no. 55, situate at Narhi Bazar, Hazratganj, Lucknow. The application was made under Sec. 21 of the Act and it was stated that the shop was required by the landlords for their own use. In paragraph 9 of the application it was stated that the tenant was not using the tenanted accommodation for his own use inasmuch as he had sub-let one door to Ghulam-Rasool, the present petitioner, and the other to Munna. Neither of the two sub-tenants was impleaded in the application. During the pendency of the proceedings Sri Abdul Hakeem died and his heirs, who are opposite parties 4 and 5 in the present petition, were impleaded and brought on record. Ghulam Rasool applied for impleadment on the basis that he was in occupation as a tenant for the last fifty years to the knowledge of the landlord The application was rejected by the Prescribed Authority by his order dated 9-12-1982, Annexure-1. In his order the Prescribed Authority observed that an application under Sec. 21 lies against a tenant and since the petitioner was not a tenant, he could not be impleaded in the application. On 24-2-1984 the landlords and the heirs of Abdul Hakeem entered into a compromise, the heirs agreeing to vacate one of the two shops within two months failing which the landlords would be entitled to take possession by taking recourse to Sec. 23 of the Act. The case was decided in terms of this compromise, a copy of the compromise petition is Annexure-3. The shop which was agreed to be vacated is one which is in the occupation of the present petitioner. Since the petitioner was affected by the order of release passed on the basis of compromise petition, he preferred appeal under Sec. 22 of the Act. The learned Vth Additional District Judge, to whose court the appeal had been transferred, dismissed the same by his order dated 31-1-1987, annexure-4. The learned judge held that appeal was not maintainable at the instance of a sub-tenant. He further observed that the order dated 9-12-1932 had become final between the parties, In coming to this conclusion he relied upon Rupchand Gupta Vs. Raghuvanshi {Private) Ltd. and another (AIR 1964 Supreme Court 1889) . The learned judge observed that this authority had laid down that the sub-tenant is not a necessary party to a suit for possession and that he is bound by the decree for eviction parsed against the tenant-in-chief and on this principle the petitioner could not maintain the appeal. Faced with the prospect of eviction from the shop in his occupation, the petitioner has approached this court under Art. 226 of the Constitution.

(3.) The learned counsel for the petitioner has submitted that the reliance placed by the court below upon Rupchand's case is misconceived as the matter has been directly dealt with by their Lordships in Shyam Babu Vs. District judge, Moradabad and others, 1984 (1) Allahabad Rent Cases 248 . It is pressed that the petitioner has been in occupation for the last several years with the consent of the landlord and therefore, the hardship that he will suffer from eviction from the shop in question is also required to be weighed against the hardship that the landlords will suffer by the rejection of their application. It is urged that since as a sub-tenant the petitioner's hardship is also required to be considered, he was a proper party to be impleaded in proceedings under Sec. 21 and, therefore, rejection of his impleadment applications was manifestly erroneous. On the same basis it is submitted that the petitioner was an aggrieved party also within the meaning of Sec. 22 of the Act and he had the right of appeal under that provision and the learned Additional District Judge committed manifest error in rejecting his appeal as incompetent.