Raj Kumar Kapoor vs The IXth Additional Chief Metropolitan Magistrate and Others

The Petitioner, Raj Kumar Kapoor, occupies an accommodation of which the opposite parties No. 2 and 3 are the owners. The Petitioner, Raj Kumar Kapoor, resists an application u/s 21(1)(a) of the U.P. Act No. XIII of 1972 filed by Messcrs lndra Kumar Bhatia and Ramesh Kumar Bhatia seeking, in effect, eviction of the Petitioner as a tenant occupying the premises at 118/569, Kaushalpuri, Kanpur Nagar. The application u/s 21(1)(a) of the Act was numbered as Rent Case No. 86 of 1988 : Indra Kumar Bhatia and Anr. v. Raj Kumar Kapoor and Ors.

Before this, the Petitioner faced an action by way of Judge Small Causes Suit brought by Smt. Vidyawati Bhatia, India Kumar Bhatia, Ramesh Kumar Bhatia and Vinod Kumar Bhatia against Dharmpal Sibbal and Raj Kumar Kapoor. This was Suit No. 737 of 1985. Smt. Vidyawati Bhatia and Vinod Kumar, Plaintiffs in the suit, aforesaid, are arrayed as proforma opposite parties in the application for release u/s 21(1)(a)

The suit before the Judge Small Causes Court was on the allegation that there was a chief tenant, one Dharmpal Sibbal and Raj Kumar Kappor (the Petitioner) was the sub-tenant. At some stage the Chief tenant, Dharam pal Sibbal, as alleged in the suit, left the accommodation ''leaving the suit pending before the Judge Small Causes Court and the Petitioner as Defendant No. 2, in the accommodation, being the premises in dispute. This is one aspect of the matter.

The release application, the record shows was tiled about three years after the suit.

Upon summons having been served, the Petitioner is resisting the release application on the ground that the release application is not maintainable. The Petitioner declines to file his written statement and has been pressing the court of the Prescribed Authority that it must frame and decide a preliminary issue on the maintainability of the release application. That court has, in effect, passed orders, which are impugned in the present writ petition, being the order of 16-8-1990, that whatever be the contention of the Petitioner will be considered at the time of hearing. The court was of the view that there is no provision to frame a preliminary issue under U.P. Act No. XIII of 1972 and non filing of written statement tantamount to holding up the proceedings.

Before this Court the arguments are to the effect that an application for release u/s 21(1)(a.) of the Act is not maintainable against a subtenant This is an unusual argument as the court put a proposition to learned Counsel for the Petitioner whether a release application u/s 21 of the Act can ever be maintained by a Chief tenant against a sub-tenant? A tenant cannot insist that he will reside in an accommodation and challenge the status of a landlord. If a chief tenant is not residing in the accommodation the question does arise on what exactly is the relationship of the Petitioner and the owner of the property.

A subtenancy cannot exists independently. It must be created with the tacit consent and approval of the landlord. The definition clause in Section 3 of the Act in reference to "tenant" and "landlord in Sub-section (a) and (j) do not refer to the expression ''subtenant''. The scheme of the Act is not that a person will remain in an accommodation as a sub-tenant but without a chief tenant. The law envisages creation of a sub-tenancy, but it is on conditions set in Section 25 of the Act. Section 25 of the Act is reproduced below:

Prohibition of Sub-letting--

(1) No tenant shall sub-let the whole of the building under his tenancy.

(2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building.

Explanation--For the purposes of this section-

(i) where the tenant ceases, within the meaning of Clause (b) of Sub-section (1) or Sub-section (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sub-let that building or part;

(ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting.

Sub-section (1) of Section 25 of the Act prohibits an accommodation on being sub-let. On the other hand Sub-section (2) permit an accommodation to be sublet, but this permission is with precondition. The preconditions, are that a sub-tenancy must be created (a) with the permission in writing of the landlord and (b) of the District Magistrate.

Regard being had to these circumstances a sub-tenancy if that is what the Petitioner claims himself to be, and such are the arguments before this Court, cannot challenge the status of the landlord that a release application is not maintainable against him.

The objections which the Petitioner has as a tenant, whatever they may be as a tenant or a subtenant, can only be seen when he will furnish better and further particulars in his written statement in answer to the release application, which has been filed. The Petitioner cannot oppress the court that he will not answer the release application which has been served upon him and a preliminary issue must be framed to be decided first. If indeed he desires to contest the release application he must file a written statement failing which the court of the Prescribed Authority will be obliged to continue the proceedings exparte without his answer as a written statement.

Let a copy of this order be sent to the court of IX Additional Chief Metropolitan Magistrate, Kanpur Nagar, in a case pending before him being Rent Control Case No. 86 of 1988 Inder Kumar v. Raj Kumar Kapoor, forthwith, by the Registrar High Court.

Learned Counsel for the Petitioner submits that a certain date, in December, has already been fixed by the Prescribed Authority in this matter. The date has not been intimated to the court. Notwithstanding this, the Petitioner will appear before the Prescribed authority on 17-12-1990 to obtain a date by which he will file his written statement, if he desires to do so.

The writ petition is, thus, dismissed.