Srivastava & Ors Vs. Smt. Kamla Chauhan & Anr  INSC 28 (24 January 1992)
L.M. (J) Sharma, L.M. (J) Ramaswami, V. (J) Ii Jeevan Reddy, B.P. (J)
1992 AIR 1454 1992 SCR (1) 356 1992 SCC (1) 645 JT 1992 (1) 353 1992 SCALE (1)190
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972:
3(j), 12 and 30:
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.
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.
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.
the appeal, this Court,
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 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.
reversing the decree passed by the trial court the High Court committed a
serious error in not appreciating this position. [358 F-H]
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]
APPELLATE JURISDICTION : Civil Appeal No. 243 of 1992.
the Judgment and Order dated 23.11.1989 of the Allahabad High Court in Civil
Revision No. 480 of 1983.
Gupta, Vikram Nath and H.K. Puri for the Appellants.
and Ms. Lalita Kohli for the Respondents.
Judgment of the Court was delivered by SHARMA, J. Special leave is granted.
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
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- 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.
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.
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.
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.
not inclined to go into this issue of fact afresh as both the courts below have
categorically recorded their findings against them.
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.
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.