JANARDAN SWARUP Vs. DEVI PRASAD

JUDGEMENT

(1.) This is a plaintiff's second appeal. The plaintiff's are Lala Janardan Swamp, his two sons Ramcs Chand and Suresh Chand, and his wife Smt. Raj Kishori Devi. Plaintiff No. 1 has been separate from the other plaintiffs, and there has been a partition between them. Plaintiff No. 1 is the owner of a half share, and the other plaintiffs are the owners. of the remaining half share of certain premises in Muzaffarnagar known as the "Royal Talkies". The building together with its fittings and ceiling fans had been leased to Sarjoo Prasad who was the father of defendants Nos. 1 and 2 and the husband of defendant No. 3 who are respondents before us. Sarjoo Prasad died some time in 1949 and the defendants have since then continued in occupation as tenants. It is common ground that the defendants caused material alterations in the building and. substantially damaged the same without the consent of the plaintiffs. The plaintiffs were therefore driven to the necessity of instituting suit No. 268 of 1950 against them in the court of the Munsif of Muzaffarnagar, in which the prayer originally was that the defendants should be restrained by an injunction from making any alterations in the property and from damaging the same so long as the property had continued in their possession as tenants. Later on, by an amendment of the plaint, a relief for recovery of a sum of Rs. 2,000/- as. damages had been added. The suit aforesaid was-instituted on the 29th of March, 1950. It was decreed upon compromise on the 20th of March 1952, on payment of a sum of Rs. 1,000/- to the plaintiffs. During the pendency of that suit an application was made to the District Magistrate of Muzaffarnagar by Lala Janardan Swamp requesting. that he may be granted permission under the U. P. Control of Rent and Eviction Act, No. III of 1947, to file a suit for ejectment of the tenants or occupants namely, "Lala Debi Prasad, etc." because they had damaged the building to a very great extent and also because the plaintiffs wanted the building for starting their own business inasmuch as by the prospective legislation for the abolition of the zamindari rights their income would be materially affected. The permission sought for was granted. Thereupon the plaintiffs instituted Suit No. 87 of 1950 in the court of Civil Judge of Muzaffarnagar on the 2nd of December, 1950, for the ejectment of the defendants and for recovery of arrears of rent and mesne profits after giving the defendants a notice dated the 5th of July, 1950, by which they intended to terminate their tenancy from the Ist of August, 1950.

(2.) The defendants resisted the suit on the ground that in view of the provisions of the U. P. Rent Control and Eviction Act the permission obtained from the District Magistrate was of no help to the plaintiffs and that they had no cause of action against them. They further pleaded that the notice of ejectment was not in accordance with law, firstly, because six months notice to quit was necessary, and, secondly, because the notice was served prior to the sanction given by the District Magistrate. They further contended that no forfeiture had been incurred by them and they pleaded Order II, Rule 2 as a bar to the suit,

(3.) The trial court held that the defendants had substantially damaged and materially altered the building within the meaning of Section 3 of the U. P. Control of Rent and Eviction Act, (Act III of 1947), that Order II, Rule 2 barred the suit inasmuch as in the previous suit for damages the plaintiffs could make relief for ejectment and they did not; that no defect attached to the permission of the District Magistrate obtained by the plaintiffs under the Rent Control Act; that the notice of ejectment given under Section 106 of the Transfer of Property Act was a valid notice and that the plaintiffs were entitled to a decree for Rs. 525/- towards arrears of rent and for Rs. 900/- for use and occupation. In ranting the plaintiffs a decree for ejectment and drecting the defendants to vacate the premises within two months, the trial court observed: "In view of my findings above that the permission obtained from the District Magistrate to bring the suit is valid and that the notices of ejectment served to the defendants are also valid, the defendants are liable to be ejected from the cinema house."