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PETITIONER:

VASUDHA SRIVASTAVA AND ORS.

Vs.

RESPONDENT:

SMT. KAMLA CHAUHAN AND ANR.

DATE OF JUDGMENT24/01/1992

BENCH:

SHARMA, L.M. (J)

BENCH:

SHARMA, L.M. (J)

RAMASWAMI, V. (J) II

JEEVAN REDDY, B.P. (J)

CITATION:

1992 AIR 1454 1992 SCR (1) 356

1992 SCC (1) 645 JT 1992 (1) 353

1992 SCALE (1)190

ACT:

U.P. Urban Buildings (Regulation of Letting, Rent and

Eviction) Act, 1972:

Sections 3(j), 12 and 30:

Tenant inducted by one of the co-owners-The other

residing elsewhere-Authority of such person who inducted the

tenant-Whether could be questioned in an eviction suit on

the ground of non-joinder of party-Finding of fact recorded

by trial court-Confirmed by High Court-Whether could be

reopened in appeal.

HEADNOTE:

The first appellant and her sister succeeded to the

suit premises on the death of their father. Respondent No.

2 was the tenant in the premises. The first appellant who

was managing the property on her behalf as also on behalf of

her sister, who was residing elsewhere, instituted a suit

for eviction of Respondent No.2 on the ground of non-payment

of rent. She did not join her sister as co-plaintiff. The

defendant-Respondent No. 2 took the plea that his wife was

the tenant and that she had already deposited the rent under

Section 30 of the U.P. Urban Buildings (Regulation of

Letting, Rent and Eviction) Act, 1972. The trial court

rejected the defence and decreed the suit. On an appeal by

the defendants, the High Court reversed the decree and

dismissed the suit for non-joinder of the plaintiff's

sister.

The present appeal, by special leave, is against the

High Court's order. The appellant contended that the

expression `land-lord' in Section 3(j) of the Act was not

limited to denote the owner of the house, but should be

understood in a wider sense to include a person to whom rent

is payable, as also, the agent of such a person, such as the

plaintiff-appellant in the instant case.

Allowing the appeal, this Court,

HELD: 1. Since appellant No. 1 was entrusted with the

management

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of the house as her sister was staying with her husband

elsewhere and it was appellant No. 1 who had inducted the

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respondent No.2 in the premises as a tenant, it was not open

to the tenant-respondent to question her authority. If he

was desirous of contesting the factual aspect, it was

essential for him to have raised the issue of non-

maintainability in his written statement which was not done.

In reversing the decree passed by the trial court the High

Court committed a serious error in not appreciating this

position. [358 F-H]

2. Much significance cannot be attached to the aspect

as to whether the husband became defaulter or not when the

wife had already offered to pay the rent, in view of the

importance of the issue in the proceeding under Section 12

of the U.P. Urban Buildings (Regulation of Letting, Rent and

Eviction) Act, 1972. In that background the parties went to

trial and led their full evidence on the point and the

trial court dealt with the dispute thoroughly and recorded a

finding in favour of the appellants which has been confirmed

by the High Court. The respondent, therefore, cannot be

allowed to reopen this question. [359C-D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 243 of

1992.

From the Judgment and Order dated 23.11.1989 of the

Allahabad High Court in Civil Revision No. 480 of 1983.

Sunil Gupta, Vikram Nath and H.K. Puri for the

Appellants.

Manoj Swarup and Ms. Lalita Kohli for the Respondents.

The Judgment of the Court was delivered by

SHARMA, J. Special leave is granted.

2. The appeal arises out of a suit for eviction of the

respondents from a building in the city of Allahabad. The

premises belonged to one G.D. Srivastava, who on his death

was succeeded by his two daughters Smt. Shashi Srivastava,

the sole original plaintiff since dead (substituted, by her

legal representatives) and the appellant No. 6 Smt.

Sarojini. According to the case of the appellants the

property remained under the management of Shashi Srivastava

on her own behalf as well as her sister Sarojini Sinha, who

was not residing in Allahabad. The house was let out

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to the respondent No. 2 Harpal Singh Chauhan, a Government

servant, in 1968. In 1978 Harpal Singh Chauhan was

transferred outside Allahabad, and certain strangers

initiated a proceeding under section 12 (3A) of the U.P.

Urban Buildings (Regulation of Letting, Rent and Eviction)

Act, 1972 (hereinafter refered to as the `Act') with a

prayer to declare the premises vacant. Harpal Singh

contested the case on the ground that his wife, respondent

No. 1 Smt. Kamla Chauhan and not he was the tenant. It is

not necessary to set out the details relating to the said

proceeding except stating that Rent Control Officer as well

as the appellate authority rejected the case of tenancy in

favour of Smt. Kamla Ghauhan and held that Harpal Singh was

the tenant. It is said on behalf of the appellants that

the proceeding, however, has not finally terminated in view

of a remand order by the appellate authority on another

issue. In the meantime Shashi Srivastava instituted the

present suit for eviction of Harpal Singh without Sarojini

Sinha joining as a co-plaintiff, as according to the

appellant's case she was not available in Allahabad, on the

ground of non-payment of rent. Although the action was

opposed, the defendants did not take a plea of non-

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maintainability of the suit on the ground of non-joinder of

Sarojini Sinha as a plaintiff. The defence was once more

the same plea which was taken in the proceeding under

section 12 (3A) that Smt. Kamla Chauhan was the tenant who

had deposited the rent under section 30 of the Act. The

Judge, Small Causes Court, rejected the defence and decreed

the suit. The defendants challenged the decree before the

Allahabad High Court under section 25 of the Small Causes

Courts Act. The High Court has, by impugned judgment,

reversed the decree and dismissed the suit on the ground of

non-joinder of Sarojini Sinha.

3. The learned counsel for the appellants was right in

relying upon the definition of `landlord' in section 3 (j)

of the Act in support of the appeal. The expression is not

limited to denote the owner of the house but it has to be,

for the purposes of the Act understood in the wide sense to

include a person to whom the rent is payable as also his

agent. As has been stated earlier, according to the case of

Shashi Srivastava she was entrusted with the management of

the house as here sister was staying with her husband

outside Allahabad and it was Shashi Srivastava who had

inducted the tenant-respondent in the premises as a tenant.

It was, therefore not open to the tenant-respondent to

question the authority of Shashi Srivastava. If he was

desirous of contesting the factual aspect pleaded by Shashi

Srivastava, it was essential for him to have raised the

issue of non-maintainability in his written statement which

was not done. In reversing the decree passed by the trial

court the High Court committed a serious error in not

appreciating this position. The impugned judgment has,

therefore,

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to be set aside.

4. It has been strenuously contended by Mr. Manoj

Swarup, appearing on behalf of the respondents that in view

of the facts and circumstances of the case Smt. Kamla

Chauhan must be held to be the tenant and not her husband.

We are not inclined to go into this issue of fact afresh as

both the courts below have categorically recorded their

findings against them.

5. Mr. Swarup, next, argued that in any event the suit

is fit to be dismissed as Smt. Kamla Chauhan has deposited

the arrears of rent under section 30 of the Act. Stress was

laid on the close relationship of husband and wife and it

was suggested that it will be highly technical to hold the

husband defaulter when the wife had already offered to pay

the rent. We have considered the matter closely and held

that whatever be the weight given to this argument in an

ordinary case, much significance cannot be attached to this

aspect in view of the importance of the issue in the

proceeding under section 12 of the Act. In that background

the parties went to trial and led their full evidence on the

point and the trial court dealt with the dispute thoroughly

and recorded a finding in favour of the appellant which has

been confirmed by the High Court. The respondent, in the

circumstances, cannot be allowed to reopen this question.

6. In the result the impugned judgment of the High

Court is set aside and the decree passed by the trial court

is restored. The appeal is accordingly allowed, but there

will be no order as to costs of the High Court and this

Court.

G.N. Appeal allowed.

360

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