High Court · 2025

4. The contention of learned counsel for the petitioner is that in the application filed for release of the premises, the only allegations levelled were that the petitioner had permitted the shop to be occupied by one Shri Trilok Chandra Agrawal and thus, there was vacancy created by virtue of the operation of the provisions of Section 12 of the U.P. Act No.13 of 1972. He argues that no findings have been recorded to the effect that Shri Trilok Chandra Agrawal was inducted to occupy the premises solely and to the exclusion of the petitioner and thus, the vacancy could not have been determined. He further argues that in the backdrop of the pleadings in the release application, the court ought to have determined the factual possession to come to a conclusion that the shop in question was in exclusive possession of the tenant Shri Krishna Murari, which has not been done, as such, in the absence of any pleading or material to justify the said pleadings, the order of vacancy was bad. As the order of vacancy was bad, the consequence order of release in favour of the land lord was also bad in law.

5. Reliance is placed upon the judgement of the Hon'ble Supreme Court in the case of Jagdish Prasad Vs. Angoori Devi 1984 LawSuit (SC) 78. He emphasizes on paragraph No.2 of the said judgement, which is quoted herein-below:- "Having heard counsel for the parties we are of the view that the High Court was clearly wrong in reversing the decision of the Additional District Judge. The application for eviction was based on the allegation of sub-tenancy. The allegation that the premisses had been sub-let to Pavan Trading Company had to be proved as a fact by the landlord and merely on the basis of photograph showing the presence of the son. Of the proprietor of Pavan Trading Company within the room, sub-letting could not be presumed. We must indicate that the approach of the trial Judge was to tally vitiated. Merely from the presence of a person other than the tenant in the shop sub-letting cannot be presumed. There may. be several situations in which a person other than the tenant may be found sitting in the shop for instance, he may be a customer waiting to be attendant a distributor who may have come to deliver his goods at the shop for sale; a creditor coming for collection of the dues; a friend visiting for some social purpose or the like. As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The Act does not require the Court to assume a sub- tenancy merely from the fact of presence of an outsider. Obviously the law has intended and we must assume that the rule in the Abdul Aziz's case (referred to by the trial court) proceed on the footing A that the person was sitting in the shop in exercise or his own right and not in a situation as indicated by us. The trial court unwarrantedly drew the presumption and looked at the evidence of the tenant to find out whether the presumption had been rebutted. There is no warrant in law for such a situation. The Additional District Judge rightly took exception to this approach to the matter by the trial court and since the evidence of the plaintiff had not been scrutinised under the erroneous impression of the legal position, the same was looked into to find out whether the claim of the sub-tenancy had been established. This was nat an attempt to re- assess. evidence but to take into consideration the evidence which had not been looked into by the trial court. The revisional jurisdiction under Section 25 of the Provincial Small Cause Court Act is not as wide as the appellate jurisdiction under Section 96 of the Code of Civil Procedure; yet in a case of this type we do not think fault could be found with the revisional court for pointing out the legal error committed by the trial court in its approach to this material aspect. The legal position having been totally misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidence, the revisional authority entitled to Point out the legal error and rectify the defect. This is all that had been done by the Additional District Judge."

6. Further reliance is placed upon the judgement of the High Court in the case of Vijay Kumar (Dead) by LRs and others Vs. Additional District Judge, Nainital and others; Civil Misc. Writ Petition No.7242 of 1984. He emphasizes on paragraph 9 of the said judgement, which is quoted herein- below:- "9. The meaning of the word "occupation" referred to in clause (D) of sub- section (1) of Section 12 of the Act must relate to exclusive occupation of a person who is not a member of the family. Dhruv Narayan is carrying on business but he has not transferred the possession of the shop exclusively to Vijay Kumar. the husband of Smt. Sharda Devi. Secondly, if the tenant has transferred the possession to any person who is not a member of the family, it can be deemed as a vacant but when such person carried on business who is himself a family member of the tenant, it cannot be deemed as a vacant. The word 'family' has been defined under Section 3 (g) of the Act. which includes a spouse. Vijay Kumar, the husband of Smt. Sharda Devi. the tenant is her family member. In these circumstances, the disputed shop cannot be treated as vacant in law."

7. The other judgement relied upon is in the case of Manohar Lal and others Vs. Rent Control and Eviction Officer and another; C.M.W.P. No.1156 of 1999. He emphasizes on paragraph 10, which is quoted herein-below:- "10. The court is to examine the nature of possession of such person who is alleged not to be member of family. If his possession is in the nature of a licensee without putting him in exclusive possession, it cannot be taken his occupation as contemplated under Section 12(1)(b) of the Act. The Rent Control and Eviction Officer before declaring the vacancy is to examine all of the aspects of the matter."

8. In the light of the said argument, it is argued that the writ petition deserves to be allowed and both the orders are liable to be quashed.

9. Learned counsel for the respondent, on the other hand, argues that in terms of the mandate of Section 12, it is required to allege that the shop in question is being allowed to be occupied by a person, who is not a member of the family of the tenant, which fact was duly alleged. He further draws my attention to the findings of the revisional court order in paragraph 24 to the effect that all the notices sent during the pendency of the revision, were received by the son of Shri Trilok Chandra Agrawal in the shop in question, based upon which, a finding was recorded that the premises in question was permitted to be occupied by a person, who is not a member of the family as defined under Section 3(g) of the U.P. Act No.13 of 1972. He thus, argues that the findings of fact have been recorded, which has not even been challenged in the present writ petition, as such, the writ petition deserves to be dismissed.

10. Considering the submissions made at the Bar, with regard to categorical finding recorded in paragraph 24 of the revisional order, there are no pleadings in the present writ petition, either to demonstrate that the said finding is perverse or contrary to the record. In the absence of pleading, it is fairly well established that the arguments cannot be accepted. The judgements, cited by learned counsel for the petitioner, are not in respect of the contention that the premises was permitted to be occupied by a person, who is not a member of the family, as such, of no avail. In view of the specific findings recorded by the revisional court and there being no material to form an opinion to discredit the said finding. This Court in exercise of powers under Article 226/227 of the Constitution of India cannot interfere/reverse finding of fact that too without pleadings.

11. Accordingly, the writ petition lacks merits and is dismissed.

12. At this stage, learned counsel for the parties leave it open to the Court to grant time for vacating the premises.

13. In view thereof, it is provided that the petitioner shall vacate the premises and hand over the vacant and physical possession of the shop in question to the land lord and no one else within a period of six months from today.

14. The petitioner shall give an undertaking before the Rent Control and Eviction Officer within a period of three weeks from today, wherein it shall be undertaken that the petitioner shall hand over the vacant and physical possession of the shop in question to the land lord and no one else on or before

31.10.2025. In case, no such undertaking is filed, the executing court may take steps for execution of the decree in terms of the directions issued by the Hon'ble Supreme Court in Civil Appeal Nos.3640-3642 of 2025 (Periyammal (Dead) Through Lrs. and Ors. Vs. Rajamani and Anr. ETC.). The execution shall be done within a period of four months from today positively.

15. The rent deposited in pursuance of the order passed by this Court shall be transmitted to be paid to the land lord in accordance with law. Order Date :- 28.4.2025 Ashutosh ASHUTOSH PANDEY ASHUTOSH PANDEY High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

4. The contention of learned counsel for the petitioner is that in the application filed for release of the premises, the only allegations levelled were that the petitioner had permitted the shop to be occupied by one Shri Trilok Chandra Agrawal and thus, there was vacancy created by virtue of the operation of the provisions of Section 12 of the U.P. Act No.13 of 1972. He argues that no findings have been recorded to the effect that Shri Trilok Chandra Agrawal was inducted to occupy the premises solely and to the exclusion of the petitioner and thus, the vacancy could not have been determined. He further argues that in the backdrop of the pleadings in the release application, the court ought to have determined the factual possession to come to a conclusion that the shop in question was in exclusive possession of the tenant Shri Krishna Murari, which has not been done, as such, in the absence of any pleading or material to justify the said pleadings, the order of vacancy was bad. As the order of vacancy was bad, the consequence order of release in favour of the land lord was also bad in law.

5. Reliance is placed upon the judgement of the Hon'ble Supreme Court in the case of Jagdish Prasad Vs. Angoori Devi 1984 LawSuit (SC) 78. He emphasizes on paragraph No.2 of the said judgement, which is quoted herein-below:- "Having heard counsel for the parties we are of the view that the High Court was clearly wrong in reversing the decision of the Additional District Judge. The application for eviction was based on the allegation of sub-tenancy. The allegation that the premisses had been sub-let to Pavan Trading Company had to be proved as a fact by the landlord and merely on the basis of photograph showing the presence of the son. Of the proprietor of Pavan Trading Company within the room, sub-letting could not be presumed. We must indicate that the approach of the trial Judge was to tally vitiated. Merely from the presence of a person other than the tenant in the shop sub-letting cannot be presumed. There may. be several situations in which a person other than the tenant may be found sitting in the shop for instance, he may be a customer waiting to be attendant a distributor who may have come to deliver his goods at the shop for sale; a creditor coming for collection of the dues; a friend visiting for some social purpose or the like. As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The Act does not require the Court to assume a sub- tenancy merely from the fact of presence of an outsider. Obviously the law has intended and we must assume that the rule in the Abdul Aziz's case (referred to by the trial court) proceed on the footing A that the person was sitting in the shop in exercise or his own right and not in a situation as indicated by us. The trial court unwarrantedly drew the presumption and looked at the evidence of the tenant to find out whether the presumption had been rebutted. There is no warrant in law for such a situation. The Additional District Judge rightly took exception to this approach to the matter by the trial court and since the evidence of the plaintiff had not been scrutinised under the erroneous impression of the legal position, the same was looked into to find out whether the claim of the sub-tenancy had been established. This was nat an attempt to re- assess. evidence but to take into consideration the evidence which had not been looked into by the trial court. The revisional jurisdiction under Section 25 of the Provincial Small Cause Court Act is not as wide as the appellate jurisdiction under Section 96 of the Code of Civil Procedure; yet in a case of this type we do not think fault could be found with the revisional court for pointing out the legal error committed by the trial court in its approach to this material aspect. The legal position having been totally misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidence, the revisional authority entitled to Point out the legal error and rectify the defect. This is all that had been done by the Additional District Judge."

6. Further reliance is placed upon the judgement of the High Court in the case of Vijay Kumar (Dead) by LRs and others Vs. Additional District Judge, Nainital and others; Civil Misc. Writ Petition No.7242 of 1984. He emphasizes on paragraph 9 of the said judgement, which is quoted herein- below:- "9. The meaning of the word "occupation" referred to in clause (D) of sub- section (1) of Section 12 of the Act must relate to exclusive occupation of a person who is not a member of the family. Dhruv Narayan is carrying on business but he has not transferred the possession of the shop exclusively to Vijay Kumar. the husband of Smt. Sharda Devi. Secondly, if the tenant has transferred the possession to any person who is not a member of the family, it can be deemed as a vacant but when such person carried on business who is himself a family member of the tenant, it cannot be deemed as a vacant. The word 'family' has been defined under Section 3 (g) of the Act. which includes a spouse. Vijay Kumar, the husband of Smt. Sharda Devi. the tenant is her family member. In these circumstances, the disputed shop cannot be treated as vacant in law."

7. The other judgement relied upon is in the case of Manohar Lal and others Vs. Rent Control and Eviction Officer and another; C.M.W.P. No.1156 of 1999. He emphasizes on paragraph 10, which is quoted herein-below:- "10. The court is to examine the nature of possession of such person who is alleged not to be member of family. If his possession is in the nature of a licensee without putting him in exclusive possession, it cannot be taken his occupation as contemplated under Section 12(1)(b) of the Act. The Rent Control and Eviction Officer before declaring the vacancy is to examine all of the aspects of the matter."

8. In the light of the said argument, it is argued that the writ petition deserves to be allowed and both the orders are liable to be quashed.

9. Learned counsel for the respondent, on the other hand, argues that in terms of the mandate of Section 12, it is required to allege that the shop in question is being allowed to be occupied by a person, who is not a member of the family of the tenant, which fact was duly alleged. He further draws my attention to the findings of the revisional court order in paragraph 24 to the effect that all the notices sent during the pendency of the revision, were received by the son of Shri Trilok Chandra Agrawal in the shop in question, based upon which, a finding was recorded that the premises in question was permitted to be occupied by a person, who is not a member of the family as defined under Section 3(g) of the U.P. Act No.13 of 1972. He thus, argues that the findings of fact have been recorded, which has not even been challenged in the present writ petition, as such, the writ petition deserves to be dismissed.

10. Considering the submissions made at the Bar, with regard to categorical finding recorded in paragraph 24 of the revisional order, there are no pleadings in the present writ petition, either to demonstrate that the said finding is perverse or contrary to the record. In the absence of pleading, it is fairly well established that the arguments cannot be accepted. The judgements, cited by learned counsel for the petitioner, are not in respect of the contention that the premises was permitted to be occupied by a person, who is not a member of the family, as such, of no avail. In view of the specific findings recorded by the revisional court and there being no material to form an opinion to discredit the said finding. This Court in exercise of powers under Article 226/227 of the Constitution of India cannot interfere/reverse finding of fact that too without pleadings.

11. Accordingly, the writ petition lacks merits and is dismissed.

12. At this stage, learned counsel for the parties leave it open to the Court to grant time for vacating the premises.

13. In view thereof, it is provided that the petitioner shall vacate the premises and hand over the vacant and physical possession of the shop in question to the land lord and no one else within a period of six months from today.

14. The petitioner shall give an undertaking before the Rent Control and Eviction Officer within a period of three weeks from today, wherein it shall be undertaken that the petitioner shall hand over the vacant and physical possession of the shop in question to the land lord and no one else on or before

31.10.2025. In case, no such undertaking is filed, the executing court may take steps for execution of the decree in terms of the directions issued by the Hon'ble Supreme Court in Civil Appeal Nos.3640-3642 of 2025 (Periyammal (Dead) Through Lrs. and Ors. Vs. Rajamani and Anr. ETC.). The execution shall be done within a period of four months from today positively.

15. The rent deposited in pursuance of the order passed by this Court shall be transmitted to be paid to the land lord in accordance with law. Order Date :- 28.4.2025 Ashutosh ASHUTOSH PANDEY ASHUTOSH PANDEY High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench