Sheo Nath Prasad Gupta vs District Judge,Kanpur and Others

Sudhir Narain, J.—This writ petition is directed against the order dated 3091997, passed by the Judge, Small Causes Court, Respondent No. 2 permitting Respondent No. 3 to withdraw the amount deposited by the tenant under subsection (4) of Section 30 of U.P. Act No. 13 of 1972, and the order of the Revisional Court dated 24121997 affirming said order in revision.

The facts of the case, in brief, are that Jagannath Prasad Gupta, Respondent No. 3 filed J.S.C. Suit No 674 of 1992, for recovery of arrears of rent ejectment and damages against Radha Krishna Khanna, Respondent No. 4, on the allegations that he is owner for moiety share of premises No. 55/34, Generalganj, Pachkucha, Kanpur in which premises the defendant was tenant of accommodation consisting of three rooms, three kotharies, one kitchen, one verandah and latrine, bathroom on the first floor at monthly rent of Rs. 43.75 per month besides taxes to the extent of his moiety share. The plaintiff respondent had also impleaded his brother Shiv Nath Prasad Gupta as proforma defendant. The tenant deposited rent under Section 20(4) of U.P. Act No. 13 of 1972. The plaintiff applied for withdrawal of the amount Rs. 26,000. The petitioner raised objection. The plaintiff was permitted to withdraw the entire amount as deposited by the tenantdefendant. A revision was preferred which was dismissed by the impugned order dated 24121997.

3.1 have heard the learned Counsel for the parties. The learned Counsel for the petitioner contended that the petitioner is co sharer to the extent of half share in the property in dispute and was entitled to withdraw the amount deposited by the tenant. The plaintiff has filed suit on the basis that there was family settlement and he was given half of the share in the property and he is entitled to realise the amount to that extent.

It is also contended that the rent of premises in question was Rs. 87.8 and claim was only for half of the amount. The question as to whether the petitioner has right to realise the rent to the extent of half share is still to be decided. It has not been shown that the petitioner has filed any written statement in the suit till date. The suit has been filed only by Respondent No. 3 and not by the petitioner.

Considering the facts and circumstances of the case the orders passed by the Courts below permitting the plaintiff to withdraw the amount deposited by the tenant do not suffer from any illegality. However, in the interest of justice, it is directed that the plaintiffrespondent shall withdraw half of the amount deposited by the tenant without furnishing any security and remaining half of the amount on furnishing security to the satisfaction of trial Court concerned.

Subject to the aforesaid modification in the impugned orders and direction given above, the writ petition is dismissed.