ANWAR HUSAIN Vs. SMT. HAMIDAN

JUDGEMENT

(1.) THIS is a defendants second appeal in a suit for ejectment and arrears of rent from a shop situate as Jaspur in District Nainital.

(2.) THE appellant was defendant No. 2 in the suit and the plaintiffs case was that she has purchased the shop by a registered sale deed dated 20th November, 1968, that the first defendant who is alleged to have died on 28th October, 1971 during the pendency of the appeal before the lower appellate court, was the tenant of the shop since the time of the plaintiffs predecessor-in-interest and on purchase of the shop by her he became the tenant, that the rate of rent was Rs. 25/- per month which was the due from 20th November, 1968, and a notice of demand dated 12th November, 1969 was sent by the plaintiff to the first defendant which was served upon him on 24th November, 1969 but the full rent had not been paid and the first defendant was consequently a defaulter in payment of rent. It was further alleged that the first defendant had illegally and without the plaintiffs permission sub-let the shop to the second defendant and on this ground also both of them were liable to ejectment. It was then pleaded that the second defendant had by fraud and concealing thc facts got the shop allotted in his favour and was claiming himself to be the tenant with effect from 20th January, 1969 on the basis of that allotment order that the allotment order was without jurisdiction and illegal because the shop was vacant at that time and was based on fraud and mis-representation of facts.

(3.) IT was the own case of the plaintiff that the second defendant was claiming to be the tenant on the basis of the allotment order and the second defendant had also stated in the written statement in clear words that he was a tenant under that allotment order and further that the first defendant had removed his possession and had surrendered the tenancy of the shop before its allotment to him. Under these circumstances, the observation of the lower appellate court that the trial court had proceeded to carve out a new case for the second defendant is without any basis on the record. With regard to the validity of the allotment order also the reasoning adopted by the lower appellate Court is erroneous in law. It has brushed aside Ext. A-14 the plaintiffs application for the release before the Rent Control and Eviction Officer on the ground that the plaintiff was not confronted with it. A Full Bench of our court in the case of Ajodhya Prasad Bhargava v. Bhawani Shanker Bhargava (1957 All LJ 350) : (AIR 1957 All 1) has laid it down that it is not always necessary in a civil case to confront a party with a document containing his admission if the document has already been filed, and the document itself can be relied upon as substantive evidence under S.21 of the Indian Evidence Act. I have looked into Ext. A-14. It contains a clear admission on behalf of the plaintiff of the fact that the shop had fallen vacant. The lower appellate Court has further proceeded to observe that the illegal continuance of possession of the second defendant as a sub-tenant in the shop also showed that it was not vacant. This reason given by the lower appellate court also proceeds on a misapprehension of law. Where a tenant vacates the whole accommodation and the same is alleged to be occupied by a person illegally, it can be said that the accommodation is vacant in law such as to confer jurisdiction on the Rent Control and Eviction Officer to pass an allotment order in respect thereof. For all these reasons, I hold that the finding of the lower appellate Court that the shop was not vacant when it was allotted to the second defendant is erroneous in law and must be set aside and it must be held that the allotment order in favour of the second defendant was valid in law.