Hon'ble B.S Verma, J. (Oral)
By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 20.1.2001 (Annexure No. 10) passed by respondent no. 2 and the order dated 29.11.2004 (Annexure No. 11) passed by respondent no. 1.
Brief facts of the case, as narrated in the writ petition are, that petitioner and respondent no. 4 are co-tenant in the disputed property for last more than 30 years and the petitioner is carrying on his business in the said shop @ Rs. 105/- per month as rent. The name of the petitioner is also recorded in the record of Nagar Nigam Dehradun. Respondent no. 3.owner and landlord of the disputed shop refused to accept the rent, therefore, an application u/s 30 of U.P Act No. 13 of 1972 was moved by the petitioner and respondent no. 4 before the Civil Judge (J.D) Dehradun. Said application was allowed. The petitioner alleges that respondent no. 3 wanted to evict the petitioner forcibly therefore he and respondent no. 4 filed a suit for injunction in which an ex-parte decree was passed on 3.4.1999 in favour of the petitioner. Apart from above, an application u/s 27 of the Act was also filed for restoration of electricity which was also allowed by learned Prescribed Authority vide order dated 2.8.1996 The respondent no. 3 filed a SCC suit against respondent no. 4. Since the petitioner was not made party in the SCC suit, he filed an application under Order 1 Rule 10 of C.P.C for impleading him in the suit. The application was opposed by respondent no. 3 by filing objection on the ground that respondent no. 4 is the only tenant of the disputed shop who has paid rent of the disputed shop. The petitioner had never been the tenant of the disputed shop. Vide order dated 20.1.2001, learned Prescribed Authority rejected the application of the petitioner on the ground that he never paid rent to respondent no. 3 and is therefore not a necessary party. Feeling aggrieved, the petitioner filed revision which was also dismissed on similar grounds. Hence, this writ petition.
Learned senior counsel for the petitioner has firstly contended that the petitioner is a recorded tenant in the municipal record and is therefore necessary party in the SCC suit filed by respondent no. 3. Apart from this, injunction suit filed by the petitioner and respondent no. 4 against the respondent and applications filed u/s 27 and 30 of the Act has been allowed. He contended that in view of the aforesaid orders passed in favour of the petitioner, it is proved that the petitioner is a co-tenant along with respondent no. 4.
Per contra, learned counsel for respondent no. 3 has contended that so far as orders passed in injunction suit and on the applications moved by the petitioner is concerned, that have been passed ex-parte against the respondent no. 3, and so far as the order passed on application filed u/s 30 of the Act is concerned, the same is not a conclusive proof of tenancy in favour of petitioner. Learned counsel has further contended that the suit has been filed against the tenant who is paying rent to respondent no. 3 and if some other person is sitting in the shop with permission of original tenant he is not a necessary party and also cannot claim for the same.
Even otherwise, for the sake of arguments, if the petitioner is considered to be joint tenant as he has alleged in para-1 and 5 of the application (Annexure No. 9), no averment has been made in the application by the petitioner that respondent no. 4 is in collusion with the landlord.
Learned senior counsel has further contended that he not a joint tenant, he is a co-tenant. He has not inherited tenancy. If he had inherited tenancy, then only he was assumed to be joint tenant.
This argument of learned senior counsel cannot be accepted for the simple reason that by way of affidavit filed before Judge, S.C.C an application was made by the petitioner wherein it was mentioned that he is a joint tenant.
Both the courts below, on the basis of rent receipt, have given categorical finding that respondent no. 4 was tenant in the disputed shop. He was paying rent to respondent no. 3 and not the petitioner. No rent receipt was filed by the petitioner before the Judge, S.C.C or the revisional court to show that rent receipt has also been issued in favour of the petitioner.
So far as the orders passed in civil suit and on the application u/s 27 of the Act are concerned, both these orders are ex-parte orders and have arisen out of different cause of action. Instant suit is a suit for eviction of tenant. If the petitioner is assumed as a joint tenant, in that case also, he is not a necessary party in view of judgment of this Court passed in the case of Smt. Mridula Chaube v. Smt. Sushila Mittal reported in 2010 (1) UAD 567 wherein it has been held that suit can maintained against the tenant on behalf of joint tenants.
In the light of aforesaid, I do not find any illegality or perversity in the impugned orders. The writ petition lacks merit and is dismissed accordingly. Since the matter is old, learned Judge, S.C.C is directed to expedite and conclude the proceedings of the suit as expeditiously as possible.
Interim order dated 12.01.2005 passed by this Court is vacated.