LILAWATI Vs. LALA ROSHANLAL AND A

JUDGEMENT

(1.) THIS is a defendants' appeal arising out of a suit for ejectment, recovery of arrears of rent and mesne profits. The plaintiff respondent, hereinafter referred to as the respondents filed a suit stating that one Darshan Lal was a tenant of the premises in suit on a monthly rent of Rs. 6/14/- per annum. He died, leaving behind the defendants who are his wife and daughters. Besides the defendants, there was a son of Darshan Lal, but that son, had not been heard of for more than ten years prior to the institution of the suit and, therefore, he would be deemed to have died. According to the respondents they were in need of the accommodation in suit for their personal use, and so they applied for permission from the State Government under Section 3 of U.P. Act III of 1947 to eject the defendants. The permission was sought for and was granted as against defendant No. 1, namely the wife of Darshan Lai, but it would be considered to be effective and legally valid as against all the defendants, i.e., the other members of the family of Darshan Lal. In the aforesaid permission, according to the respondents, it was stipulated that in case defendant No. 1 within 15 days from the date of the order, i.e.. December 10, 1969, intimated her intention in writing to the plaintiff that she was willing to act upon the first contract, which was in effect that the plaintiff for her benefit would erect two rooms, one latrine and bathroom, then her ejectment would not take place, and that in default a lapse of two months from the date of the order, the plaintiffs would be entitled to institute a suit for ejectment against the defendant appellants. It is now urged that defendant No.1 never complied with the terms of the order of the State Government dated December 10, 1969, and the plaintiffs were, therefore, entitled to institute the instant suit against her as well as the other respondent-appellants. It was further pleaded by the plaintiff-respondents that the defendants had committed default in payment of rent for more than three months in spite of the service of a notice of demand upon them and. that they had not paid arrears of rent, nor vacated the said premises. So, they will also be liable to ejectment under Section 3(1) (m) of U.P. Act III of 1947. The suit was contested by the defendants who filed a joint written statement. It was pleaded on behalf of defendant appellants: that Darshan Lal was the tenant of the accommodation and that on his death all the defendants became tenants in common of the premises in suit. It was further pleaded that the son of Darshan Lal was Padam Prakash and that as was alive. It was also pleaded that defendant No. 1 had given intimation to the plaintiff-respondents in terms of the order of the State Government dated December 10, 1969 within the specified time. It was denied that the defendants were in arrears of rent and it was further this case that the notice of demand and termination of tenancy was bad. The further case was that the suit was bad for non-joinder of Padam Prakash, son of Darshan Lal. The trial court found that the defence case that Padam Prakash the son of Darshan Lal was alive was not proved. It recorded a positive finding that Padam Prakash had died and, as such, it also fcund that the permission granted by the State Government was not without jurisdiction. The further finding of the trial court was that the permission granted by the State Government for ejectment of defendant No. 1 was ineffective as against defendants Nos. 2 to 5, though the condition imposed in the order by the State Government v, as valid. The trial court has further found that the defendant appellants did not commit any default in payment of arrears of rent within the meaning of Section 3(a) of U.P. Act III of 1947, though it found that the defendants were in arrears of rent to the tune of Rs. 1341-. The defendants' plea against the validity of the notice of demand and termination of tenancy was rejected. In the result, the plaintiffs' suit for recovery of Rs. 134/- was decreed. The suit for ejectment was however, dismissed. It was further directed that the amount of rent deposited by the defendant appellants under the provisions of Section 7-C of U.P. Act No. III of 1947 could be withdrawn by them. Aggrieved by the order of the trial court both the plaintiffs and defendants filed appeals. The appeal filed by the plaintiff-respondents was numbered as 23 of 1972 whereas the appeal filed by the defendants was numbered as 42 of 1972. They were consolidated Dehradun. The lower appellate court has agreed with the findings of the trial court that Padam Prakash son of Darshan was dead, and it has further found that even if he was not dead, he had surrendered his tenancy and, as such, it was not necessary to implead him in the suit. Therefore, the suit was not bad for the non-joinder of Padam Prakash. The lower appellate court has elaborately considered the question as to whether the permission granted in favour of the plaintiff respondents for the ejectment of defendant No. 1 alone was effective as against all the defendants in the suit. It has come to the conclusion that when the State Government granted the permission, it was granted as against all the defendant-appellants and was effective as against them. It has also been found by the lower appellate court that the defendant No. 1 did not convey her consent as required under the State Government's order, while granting permission under Section 3 of the Rent Control Act. The further finding of the lower appellate court is that the defendant appellants are not defaulters within the meaning of Section 3 of U.P. Act III of 1947. It has also been found that there were no arrears due as against the defendant appellants and it was open to the plaintiff respondents to have withdrawn the deposits made under Section 7-C of U.P. Act III by the defendant-appellants. It was also found that the tenancy of the defendant appellants has been validly terminated and, as such, the plaintiff respondents were entitled to a decree for ejiectment as against the defendants on the basis of the permission granted by the State Government in favour of the plaintiff respondents under Section 3 of U.P. Act III of 1947. In the result, the lower appellate court allowed both the appeals Nos. 23 of 1972 and 42 of 1972. A decree for ejectment of defendants from the premises in dispute was passed. The defendants were allowed two months time to vacate the premises and to hand over vacant possession to the plaintiff respondents. The suit was also decreed for the recovery of mesne profits at the rate of Us. 6.14 annas per month from April 25. 1970 till the actual date of delivery of possession or three years whichever of the two was earlier. The suit for recovery of arrears of rent was dismissed. It was further directed that the plaintiff could withdraw the deposits made till April 24, 1970 under Section 7-C of U.P. Act III of 1947. The parties were directed to bear their own costs. The defendants have filed the present appeal. Before proceeding further with the case it has to be clarified that the notice terminating the tenancy was served on all the defendants and as such no question as to the validity of the said notice arises in this case. The learned counsel for the defendant appellant has urged that the lower appellate court was wrong in law in holding that by arranging-permission the State Government granting permission in favour of the landlord as against the defendant appellant No. 1, Smt. Lilawati widow of Darshan Lal was effective and valid as against all the defendant appellants. In this connection he has submitted that the admitted case of the parties was that all the defendant appellants who are tenants of the accommodation in suit were not impleaded in the application which led to the grant of permission by the State Government under Section 3 of U.P. Act No. III of 1947. The provisions of Section 3 of U.P. Act No. III of 1947 so far as they are relevant, are reproduced below: - " (1) Subject to any order passed under sub-section (3) no suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds." The order of the District Magistrate is subject to revision by the Commissioner of the Division which in its turn is again subject to any order passed by the State Government under Section 7-F of the Act. The question whether the permission granted under Section 3 against one of a number of tenants was valid and effective as against the other tenants who were not parties to the proceedings under Section 3 has come up for consideration before this Court on a number uf occasions. In the case of Rameshwar Dayal v. Smt. Mohania (died), after her Sohan Lal and another (1963 A.L.J. 198) it was held as follows: - "There are other cases also which show that the permission obtained under S. 3 is not to be interpreted in a narrow sense. THIS in Moti Lal v. Basant Lal (A.I.R. 1956 All. 175) there were two brothers who were joint landlords of an accommodation. Permission to sue the tenant for ejectment was obtained by one of the brothers in his own name only. When he filed the suit it was contested inter alia on the ground that permission having been granted to only one of the landlords the suit was not maintainable. The contention was, however, rejected and it was said: - 'IThe only hurdle in the way of the owners of the shop in bringing the suit was the permission of the District Magistrate. Once that permission was obtained, the hurdle was removed and both could bring the suit. It does not matter if the permission was obtained by both or either of them. Once a permission was granted by the District Magistrate it took away the bar imposed by Section 3 and it did not matter whether the District Magistrate granted permission to one or the two joint owners. "Permission to sue having been obtained under Section 3 it will automatically enure not only to the benefit of the person who obtained it but also to the benefit of "others who were interested in filing the suit." THIS view was approved by a Division Bench of this Court in Janardan Swarup v. Devi Prasad (A.I.R. 1969 All. 33=1958 A.L.J. 573). In that case there were several joint landlords and the accommodation was in the occupation of several persons as joint tenants. Permission had been granted under Section 3 of the Act in favour of only one of the landlords and) only against one of the several tenants. The suit for ejectment filed on the basis of the permission was rejected on the ground that the permission was not sufficient to enable all the landlords to maintain a suit against all the tenants. Dealing with this objection Roy, J. who was speaking for the Division Bench observed: - "In regard to the permission aforesaid it has been contended on behalf of the appellants that the lower appellate Court's view that this permission was defective because it was in favour of only one of the landlords namely, Lala Janardan Swarup and against only one of the tenants, namely Lal Debi Prasad was not based upon a correct appreciation of matter. In Moti Lal v. Basant Lal (4) a learned Judge of this Court held that where permission to sue for ejectment has been obtained under Section 3, it will automatically enure not only to the benefit of the person who obtained it but also to the benefit of the others who were interested in filing the suit. It was further held that where it is manifest that all the plaintiffs landlords who were interested in the matter brought the suit after serving a notice on the tenants to vacate the premises in suit it will be deemed that the plaintiff who obtained the permission acted as agent on behalf of the other plaintiffs. We are in accord with that view. We are further of opinion that where an order of the nature covered by the present suit has been obtained by one of the plaintiffs who will be deemed to have acted as agent on behalf of the other plaintiffs for the ejectment of the 'the tenant' and the order specifies only one such person as tenant the order will be deemed to cover the entire body of tenants and not simply one out of them whose name was specified, not by the District Magistrate but by the Rent Control Officer." While considering the validity or otherwise of a permission granted under Section 3, therefore, no technical importance is to be attached to the fact that it was given in favour of a particular person by name or it was granted to file a suit against a particular person named in the order granting the permission. Normally if a permission is granted keeping in view the purpose for which it is given it will enable all the landlords to eject all the tenants by an effective suit for ejectment and will hold good till that object is achieved. Before the lower appellate court the question as to whether the permission was valid or invalid was examined in detail, On behalf of the plaintiff respondent reliance was placed on the case of Smt. Vish-nawati v. Bhagwat Vithu Chowdhary (1968 A.L.J. 1131), whereas on behalf of the defendant appellants reliance was placed on another decision of this Court in the case of Smt. Shafiqa and others v. Maqsood Ahmad Khan and others (1969 A.L.J. H16.). The lower appellate court was of the view that facts of the instant case were closer to the facts of the caise Smt. Vishnawati v. Bhagwat Vithu Chowdhary (supra) that in the case of Smt. Shafiqa and others v. Maqsood Ahmad Khan and others (supra). The decision in the two cases can be reconciled. In the case of Smt. Vishnawali v. Bhawai Vithu Chowdhary (supra) the landlord had all along treated Smt. Lilawati and the other defendants as tenants; from the very beginning. It was further held that on the facts of the case the permission that was sought and obtained by the landlady was against all the defendants whereas in the cage of Sliafiqa v. Maqsood Ahmad Khan (supra) the court held that the permission was sought for and obtained as against only one out of a number of tenants and, as such, it was held that the permission was defective as against the other defendants In the instant case the plaintiff-respondent had sought permission to evict the defendant appellants on the ground that as landlord the plaintiff respondent needed the accommodation for their personal need. The State Government considered the need of the defendant appellant No. 1, and granted the permission as against Smt. Lilawati. In order to succeed in this appeal the defendant appellants have to prove either of these two facts: (1) that the plaintiffs did not seek permission to evict all the tenants, but only one of them, namely, Smt. Lilawati; or (2) that when the State Government granted the permission it did not take into consideration the needs of all the defendant appellants, is that it acted in violation of the principles of natural justice qua the defendant appellants other than Smt. Lilawati. As has been mentioned earlier, the notice terminating the tenancy was served on all the defendants. From the facts of the case it is clear that the plaintiff respondents who are the landlordjs, had also treated all the defendants as tenants. Though the permission under Section 3 has been sought against only one of the defendant appellants namely Smt. Lilawati. this Court has already held that a permission obtained by the landlord as against one of number of tenants can enure to the benefit of the landlord as against all the tenants, if the permission had been sought against one of the tenants in, more or less, a representative capacity. Therefore, the question in each case will be whether the permission has been sought against the tenant in a representative capacity. In the present case the permission has been sought against Smt. Lilawati, defendant No. 1, alone. Along with Smt. Lilawati and her family as tenants. In the circumstances, it can be held that the permission has been sought by the plaintiff respondent as against the entire body of tenants. There is, however, considerable force in the argument on behalf of the defendants appellants that the order of the State Government is invalid on the ground that it violates the principles of natural justice. As has been pointed out, the permission has been sought as against the defendant appellant No. 1 alone. Admittedly notices of the proceedings before the State Government under Section 7-F of U.P. Act No. Ill of 1947 were not served as against the defendant appellants other than defendant appellant No. 1, namely Smt. Lila-v/ati. Thus, it is submitted on behalf of the defendant appellants other than defendant appellant No. 1 Smt. Lilawati that the want of notice vitiates the order of the State Government. On behalf of the respondents it has been pointed out that though the notice was not served on the defendants other than Smt. Lilawati, the record shows that the defendants other than Smt. Lilawati were aware of the proceedings before the State Government. In this connection my attention has been invited to the statement of Sri Vinod Kumar, the husband of defendant No. 4 Smt. Madhubala. The evidence of Vinod Kumar indicates that the defendants other than Smt. Lilawati were aware of the proceedings for the grant of permission before the State Government. Further, it has also been pointed out on behalf of the plaintiff respondents that there is no evidence on behalf of the defendant appellants to indicate that the defendants other than Smt. Lilawati were not aware of the proceedings for the grant of permission for eviction. Where an order of the State Government is sought to be challenged on the ground that it is vitiated by a failure to violate the principles of natural justice on the ground of want of notice to the parties, this fact has to be pleaded and Mir-matively proved. It is submitted on behalf of the plaintiff-respondents that as the defendant appellants have not affirmatively proved that they have been prejudiced by want of notice of the proceedings under Section 3, they cannot raise this plea in second appeal. It is, also submitted that as no issue was framed in trial court in this regard and, as such by permitting the defendant appellants to raise this plea the plaintiff respondents would be adversely affected, as they will not be liable to give their version of facts on this aspect of the case. The fact is that a failure of natural justice is mentioned in the additional written statement filed on behalf of Smt. Usha Rani and Nisha Rani (defendant appellants Nos. 2 and 3). However, the circumstances in which the failure occurred has not been specifically stated in the additional written statement of the aforesaid defendant appellants. In the circumstances, the decree of the lower appellate court cannot be set aside solely on the ground that no notice of the proceedings for granting permission was served on the defendants other than defendant No. 1 Smt. Lilawati. There is another defect in the order of the State Government. The State Government, while considering the respective needs of the landlord and tenant has, in the order granting permission observed as follows: - @hindi@ From the above quotation it is obvious that the State Government considered the married daughter of Smt. Lilawati (Defendant No. 1) not to be a member of family. It also stated that the other unmarried daughter would leave the premises in suit on her marriage. The two daughters were admittedly tenants of the accommodation. Lala Darshan Lal, the tenant of the accommodation, had, according to the statement of Vinod Kumar, died on June 25, 1963, admittedly, after the coming intp force of the Hindu Succession Act, 1956. Under Section 8 of the said Act the property of a male Hindu dying intestate shall devolve firstly upon the heirs specified in clause 1 of the Schedule to the Act. In view of this provision the tenancy right of Sri Darshan Lal in the house in dispute devolved on his widow and daughters. The daughters have been found to have been Jiving with Smt. Lilawati in the accommodation in dispute. The notice terminating the tenancy was also served on them. It is not disputed that the widow of Sri Darshan Lal namely, Smt. Lilawati and the daughters of Sri Darshan Lal were all tenants of the accommodation in dispute. The order of the State Government granting permission indicates that the Government was aware that the daughters of Darsan Lal were living in the accommodation in dispute. The State Government, however, misdirected itself in law in holding that the daughters of Sri Darshan Lal were not tenants of the accommodation in dispute. The State Government, therefore while taking into account the factual position that the daughters were also living in the house in dispute, ignored the fact that they were also tenants of the disputed accommodation. The needs of these daughters as tenants of the accommodation in dispute was ignore by the State Government. The State Government was perfectly (correct when it held in its order that the married daughter of Smt. Lilawati and her husband could not be treated as members of her family. However, the married daughters was a tenant in her own right and, as such, her needs had to be weighed as against the landlord's needs when the State Government was considering the question as to whether the permission to evict her from the accommodation in dispute should or should not be granted. THIS aspect has obviously not been taken into consideration by the State Government. The State Government obviously considered that having come to the conclusion that the married daughter and her husband were not members of the family of Smt. Lilawati, that was the end of the matter, and her needs were not entitled to any further consideration. As far as the unmarried daughter of Smt. Lilawati was concerned, the State Government held that she would leave the accommodation in dispute after she was married, accommodation would be available with Smt. Lilawati in which she could live. As has been held above, she was also a tenant of the accommodation in her own rights. Her needs as a tenant independent of Smt. Lilawati had to be taken into account. Whether the unmarried daughter would get married and leave the accommodation lay in the future. The State Government has granted permission as against the unmarried daughter without considering her needs as a tenant and on extraneous considerations. THIS defect is fatal to the permission which has been granted by the State Government for the eviction of the tenants from the disputed accommodation, As it has been held that the permission granted to the plaintiff respondent to evict the defendant appellants other than defendant No. 1 Smt. Lilawati, is vitiated in law, the decree for eviction of the defendant appellants from the disputed accommodation cannot stand. In the result, the appeal is partly allowed and the decree for eviction of the defendant appellants Irom the disputed accommodation is set aside. The appeal is dismissed as far as the other reliefs are concerned. In view of the special facts of this case, there will be no order as to costs of this appeal.