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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                                                357 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                                                   358 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,                                                        359 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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