VRIJ VALLABH AGARWAL Vs. SHANTI TRIPATHI AND

JUDGEMENT

(1.) V. V. Agarwal has directed this petition under Article 226 of the Constitution impugning the orders dated 26-2-75 and 19-11-1976 passed by Prescribed Authority opposite party No. 2 and IV Addl. District Judge, Lucknow, respectively. The petitioner is the tenant of the disputed house which had been purchased by opposite party No. 1 Smt. Shanti Tripathi. An application under section 3 of U. P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Old Act) was moved by her seeking permission in order to evict the petitioner from the disputed premises. During the pendency of the said application U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as the New Act) came into force. Hence the said application was transferred to the Prescribed Authority for disposal in pursuance of section 43 (2) (a) of the Act. The Prescribed Authority, after considering the pleas raised by the respective contesting panics, by his order dated 26-2-1975 ordered the eviction of the petitioner as well as L. N. Agarwal. opposite party No. 4. An appeal against this order was filed by the petitioner and the learned IVth Addl. District Judge, Lucknow, by his order dated 19-11-1976 dismissed the appeal, This order is Annexure 16. This is how the matter has been brought before this Court by the petitioner impugning the respective orders mentioned above. The petition has been resisted on behalf of opposite party No. 1 Smt. Shanti Tripathi and a counter affidavit has also been filed. An effort has been made to support the orders impugned in the writ petition and it is asserted that they call for no interference by this Court in exercise of powers under Article 226 of the Constitution. I have heard learned counsel for the parties and gone through the various material that has been brought on record of this Court. Learned counsel for the petitioner has raised legal questions for consideration of this court impugning the orders passed by the subordinate authorities. It is asserted that the allotment order issued in favour of the petitioner disclosed that land ladies of the house in question were Smt. Vilaito Devi and Smt. Champa Devi. The house was transferred by Smt. Vilaito Devi in favour of opposite party No. 1 Smt. Shanti Tripathi. As such, opposite party No. 1 alone was not competent to maintain the petition under section 21 of the New Act as a co-lessor had not been impleaded as one of the applicants to maintain the petition. Linked with this argument, it is argued that since the application had been signed only by opposite party No. 1 Smt. Shanti Tripathi, it was violative of provision of rule 15(2) framed under the New Act, e. g., U. P. Act 13 of 1972. In the instant case although on behalf of the petitioner an assertion somewhat similar to the claim made before this court had been made in para 1 of the written statement which is Annexure 2, but in para 2 of the written statement it is admitted that petitioner had been paying rent to Smt. Shanti Tripathi, but had doubted that he was a tenant of opposite party No. 1 Smt. Shanti Tripathi. It is nowhere stated in Annexure-2 that Smt. Champa Devi had claimed any rent for the use and occupation of the house as a co-landlord from the petitioner. The argument of co-lessor, in my opinion, therefore, is based on allotment order. I am, therefore, not much impressed by the argument that the petitioner was not a tenant of opposite party No. 1 Smt. Shanti Tripathi. The payment of rent to Smt. Shanti Tripathi had never been questioned by the petitioner. In this background the argument of the learned counsel for the petitioner deserves to be scrutinised. It is necessary to examine the Repeal and Savings clauses provided under section 43. Section 43 (2) (a) of the New Act reads as under:- "(a) any application or proceeding pending immediately before the commencement of this Act before the District Magistrate under section 3 of the Old Act shall stand transferred to the prescribed authority having jurisdiction and shall be deemed to be an application or proceeding under Section 21 of this Act and shall be disposed of in accordance with the provisions of this Act." Learned Counsel for the petitioner in support of his contention placed reliance on the case of Jamal Uddin and another v. Mosque at Mashakgani and others (A. I. R. 1973 Allahabad 328.) wherein Jagmohan Lal. J. (as he then was) observed: "When a co-owner files suit for possession against a trespasser without impleading the other co-owners while asserting exclusive ownership of suit property in himself alone, in such a case che plea of jus tertil is open to the defendant and the plaintiff cannot get a decree for possession in respect of more than his own share.'' Learned Single Judge made the above observation placing reliance on a Division Bench of this Court in Mt. Prem Lata v. Mt. Janka (I. L. R. 1951 2 All. 328) It was observed by the Division Bench in that case that "it is an elementary principle of law that unless the plaintiff proves his title, he is not entitled to a decree for possession in a suit based on title". It may be observed that in the present case the suit is not based on title but on the relationship of landlord and tenant. There is not an iota of evidence to the effect that at any point of time the petitioner challenged, prior to the instant proceedings, that relationship of landlord and tenant did not exist between the petitioner and opposite party No. 1 I am, therefore, of the view that this decision is hardly of any avail to the proposition placed by the learned counsel for the petitioner for consideration. In Shri Ram v. Second Addl. Distt. Judge, Meerut and others(1976 (2) A. L. R. 434.) it has been observed that verification of an application riled under section 21 of the New Act would apply only to fresh applications filed under Act No. 13 of 1972 and not to applications which were originally pending under section 3 of the Old Act. This view was arrived at after consideration of impact of Order 6 of the First Schedule of Code of Civil Procedure. I would further like to add that non-observance of the procedure prescribed under Order VI C. P. C. and envisaged under Rule 15 (2) would only be an irregularity and it would not vitiate the entire proceedings. It appears that this point was not seriously challenged before the Prescribed Authority otherwise the irregularity could have been cured. This point has seriously been argued in this court by reason of fact that learned IV Addl. District Judge, Lucknow, in his order had proceeded to observe that in view of the allotment order it was clear that Smt. Champa Devi was also a co-landlord with Smt. Shanti Tripathi and thereafter he proceeded to consider the impact of rule 15 (2) and observed "it is true that the release application is neither signed by Smt. Champa Devi nor bears any signature under verification clause as required by rule 15 (2) of the Rules". The learned Appellate court in view of the decision mentioned above held that it was not necessary because the present application was one under section 3 of the Old Act and had been converted into a release application under section 21(1) of the New Act. He, therefore, recorded a finding that there was neither any illegality nor irregularity which would vitiate the proceedings. Lot of argument was raised by the learned counsel for the petitioner that it was wrongly observed by the learned Appellate court that this point was not raised before the trial court and even in the Memo, of Appeal. He drew the attention of the Court to the Memo, of Appeal which is Annexure 15 and argued that it was pointedly raised in the Memo, of Appeal. In my opinion, there is substance in the submission of the learned counsel for opposite party that no grievance in the writ petition has been set up by the petitioner to the effect that certain matters were pointedly raised and argued before the learned Appellate Court, but it failed to apply its mind. In this view of the matter, learned counsel for opposite parties, maintained that it was not necessary to remand the case to the appellate court for reconsideration and the plea was merely of a legal nature and could be disposed of by this court after considering the arguments advanced by the parties. It is, therefore, not necessary to make any observations with respect to the same as made by the learned counsel of the petitioner that the learned Appellate Court did not apply his mind to the points urged before him. Learned counsel for the petitioner, however laid stress over sub-clause (b) of sub-section (2) of section 43 of the New Act and argued that since opposite party No. 1 sought eviction of the petitioner from the premises in question, he ought to have amended the application to bring it within the four corners of section 21 and opposite party No. 1 having failed to do so was not entitled to any relief. Learned counsel for opposite party No. 1 in reply to the contention placed reliance on the decision Dr. Mohammad Yunus v. Third Addl. District Judge, Mirzapur and others (1977 (3) A. L. R. 603.), M. P. Saxena, J. held;- "The language of Rule 15 refers to the making of an application in present and not to applications which are already pending under the Old Act and which by virtue of the provisions of the New Act have been transferred to the Prescribed Authority. Even on merit section 43 (2) (b) does not apply to an application under Section 3 of the Old Act. It applies to suits or other proceedings relating to the recovery or determination of or fixation of rent or of eviction from any building pending immediately before the commencement of the New Act. An application under Section 3 does not fall in any of these categories. Before the commencement of the Act it was an application for permission to file a suit for ejectment and not for eviction outright. After the commencement of the New Ac t it became an application for eviction by virtue of Section 43 (2) (a). Therefore, Section 43 (2) (h) cannot apply to it." This decision answers the question that has been posed by the learned counsel for the petitioner. It may be observed that by clause (a) of Sub section (2) of Section 43 of the New Act it was made explicit that an application for proceeding under Section 3 of the Old Act pending before commencement of the New Act shall be deemed to be an application or proceeding under Section 21 of the New Act and shall be disposed of in accordance with the provisions of the New Act. This application, in my opinion, has to be disposed of in accordance with the conditions laid down in the section and orders of eviction under section 21 of the New Act can be passed. The Legislature clearly desired that the provisions of the Old Act should not stand destroyed by repeal and hence it provided so in specific terms and where Legislature did not intend, it did not specifically so provide. The Legislature in its wisdom under sub-section (b) of sub-section (2) of Section 43 has not expressly laid down the eviction contemplated under section 43 (2) (a) of the New Act. I, therefore, fully find myself in agreement with the view expressed in Dr. Mohammad Yunus v. Third Addl. District Judge, Mirzapur and others (supra). In the instant case on the basis of the facts, I am of the view that the impugned orders do not suffer from any legal infirmity. The petitioner has taken up a job in Kuwait and is serving there for the last six years. It has not been asserted that there is any likelihood of his returning to the country in the near future nor can it be said that he would settle down at Lucknow. In this state of affairs, I do not think there is any substance in this writ petition warranting interference with the orders passed by the subordinate authorities. Learned counsel for the petitioner, however, prayed that some time may be allowed to the petitioner to shift from the premises in question. Looking to the paucity of accommodation in the city, I allow two months' time as a grace to the petitioner on the condition that he will not abuse the opportunity granted to him in any manner. The petitioner will vacate the premises after expiry of the period of two months which shall commence to run from the date of this order. The result is that in view of the observations made above the writ petition fails and is accordingly dismissed. I, however, allow the petitioner to stay on in the accommodation in suit for two months from the date of this order as observed above. I, however, make no order as to costs.