KAILASH CHANDRA Vs. IIIRD ADDITIONAL JUDGE

JUDGEMENT

(1.) This is tenants' writ petition directed against the judgment and order dated 17-5-80 passed by respondent No. 1 in the revision filed by respondents Nos. 2 and 3 whereby revision was allowed and the judgment and decree dated 30-10-78 passed by the Judge, Small Cause Court in S.C.C. Suit No. 17/76 has been set aside and the suit for eviction of the petitioners from the shop in question has been decreed.

(2.) The dispute relates to a shop detailed at the foot of the plaint filed by Respondents Nos. 2 and 3 against the petitioners. The suit was filed with the allegations that the defendants were defaulter in payment of rent and they had paid rent at the rate of Rs. 18.00 per month up to 31-5-71 only and rent from 1-6-71 was not paid despite several demands, hence the plaintiff served the defendants with a notice of demand and eviction. After the expiry of the notice period the suit for the recovery of rent from 15-12-73 to 4-1-1975 amounting to Rs. 443.50 p and for mesne profits from 5-1-75 till 15-12-76 amounting to Rs. 204.50 P. was filed as rent before 15-12-73 had become time barred. It was further alleged that the defendant No. 1 had sublet the shop to defendants Nos. 2 and 3. Therefore, in short the decree for eviction was sought on the grounds of default in payment of rent and sub-letting. The suit was contested by the defendants and it was pleadedthat the shop was let out by Smt. Gaura Devi in favour of defendants Nos. 1 and 2 jointly on 31-3-71 and receipts were issued in the name of Baldev Prasad who retired from the partnership and defendants Nos. 2 and 3 continued the business in the name of firm Govind Kailash Chandra. In original suit No. 210/74 - Kailash Chandra v. Mukundi Lal it was held that the contesting defendants were tenants and, therefore, the present suit was barred by the principle of res judicata. The defendants have deposited Rs. 1510.00 in Misc. Case No. 594. The trial Court framed a number of issues and it would be suffice to mention only those issues, the decision thereon has been challenged in this writ petition.

(3.) On the issue of default in payment of rent, the trial Court came to the conclusion that the defendants committed default. However, the decree of eviction was refused on the ground that the defendants have complied with the provisions of Section 20(4) of the U. P. Act No. 13 of 1972 by depositing the required amount. On the issue of sub-letting the trial Court recorded a finding that it has not been proved that the shop in question has been sub-let to defendants Nos. 2 and 3. On the question of res judicata the issue had been decided in favour of the plaintiff. The notice was also held to be valid. With these findings the trial Court dismissed the plaintiffs' suit for eviction. Aggrieved by the said judgment, the respondents Nos. 2 and 3 preferred revision which came up for hearing before the respondent No. 1. The revisional Court came to the conclusion that the defendants were liable to eviction on the ground of denial of title of the plaintiffs. On the question of default in payment of rent, the revisional Court agreed with the view of the trial Court that the defendants were defaulter. However, while deciding the question whether the benefit of Section 20(4) of the Act could be extended to the defendants, the revisional Court took the view that since the amount deposited under Section 30(2) of the Act was not a valid deposit, the said amount could not be adjusted while considering the question of deposit made under Section 20(4) of the Act. It further came to the conclusion that since the tenant has not deposited the time barred rent under Section 20(4) along with interest, he was not entitled to be relieved from the decree of eviction. The revisional Court further held that sub-letting has been proved by the own admission of the defendants as it was admitted by them that Badri Prasad to whom the shop was let out has left six or seven years before as such, there would be a presumption of sub-letting under Section 25 read with Section 12 of the Act. With these findings the revisional Court has set aside the judgment of the trial Court and has decreed the suit.