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Ram Raksh Pal Vs. Brij Nandan Swarup - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 4318 of 1961
Judge
Reported inAIR1967All325
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3; Evidence Act, 1872 - Sections 115
AppellantRam Raksh Pal
RespondentBrij Nandan Swarup
Appellant AdvocateN. Lal, Adv.
Respondent AdvocateV.B. Gupta, Adv.
DispositionAppeal allowed
Excerpt:
.....section 3 of u.p. (temporary) control of rent and eviction act, 1947 - permission of eviction by rent control and eviction officer under section 3 - landlord entitled to recovery of possession and amount claimed as damages - mere fact that landlord failed to take steps for eviction did not amount to waiver - held, landlord entitled to benefit of permission and sue tenants for eviction. - - the rent control and eviction officer passed an order on the basis of a compromise between shanti swaroop and the defendant granting permission to shanti swaroop to bring a suit for eviction of the defendant in case the defendant failed to vacate the house by 31st july 1967. the defendant did not, however, vacate the house. i think that the contention of the learned counsel is well founded. this..........as a tenant oh his behalf on a monthly rent of rs. 10. shanti swaroop made an application to the rent control and eviction officer for permission to bring a suit for the eviction of the tenant. the rent control and eviction officer passed an order on the basis of a compromise between shanti swaroop and the defendant granting permission to shanti swaroop to bring a suit for eviction of the defendant in case the defendant failed to vacate the house by 31st july 1967. the defendant did not, however, vacate the house. shanti swaroop did not take any proceeding for the eviction of the defendant and on 17th april 1958 he sold the accommodation to ram rakshpal plaintiff. on 6-12-1958 the plaintiff served upon the defendant a notice demanding arrears of rent and terminating the tenancy of the.....
Judgment:

Gangeshwar Prasad, J.

1. This second appeal arises out of a suit brought by the landlord of an accommodation for ejectment of his tenant and for rent and damages

2. One Shanti Swaroop was originally the owner of the accommodation and Brij Nandan Swarup alias Brij Nandan La] defendant occupied the accommodation as a tenant oh his behalf on a monthly rent of Rs. 10. Shanti Swaroop made an application to the Rent Control and Eviction Officer for permission to bring a suit for the eviction of the tenant. The Rent Control and Eviction Officer passed an order on the basis of a compromise between Shanti Swaroop and the defendant granting permission to Shanti Swaroop to bring a suit for eviction of the defendant in case the defendant failed to vacate the house by 31st July 1967. The defendant did not, however, vacate the house. Shanti Swaroop did not take any proceeding for the eviction of the defendant and on 17th April 1958 he sold the accommodation to Ram Rakshpal plaintiff. On 6-12-1958 the plaintiff served upon the defendant a notice demanding arrears of rent and terminating the tenancy of the defendant.

The arrears, according to the plaintiff, covered a period of more than three months. Since the arrears were not paid and the accommodation was not vacated by the defendant, the plaintiff brought the suit out of which this appeal has arisen The defence was that the plaintiff was not entitled to sue for eviction on the basis of the permission granted to Shanti Swaroop and that the defendant had made no default in payment of rent. The trial Court decreed the suit but on appeal the learned Temporary Civil Judge modified the decree of the trial Court and dismissed the suit in so far as the reliefs for ejectment and recovery of damages for use and occupation were concerned. The plaintiff has come in appeal to this Court.

3. The main question that has to be considered in this appeal is whether the permission to bring a suit for eviction of the defendant granted to Shanti Swaroop would enure for the benefit of the plaintiff also and whether the plaintiff can succeed in evicting the defendant on the basis of that permission irrespective of the question of default by the defendant in payment of rent in spite of the notice of demand. On this question both the Courts below have taken the view that the benefit of the permission granted to Shanti Swaroop cannot be availed of by the plaintiff. The learned counsel for the plaintiff contended that the Courts below were in error in taking this view and that the plaintiff could sue for eviction on the basis of the permission granted to Shanti Swaroop. I think that the contention of the learned counsel is well founded.

4. In the case of Sajjan Singh v. Smt. Jamuna Bala Devi, AIR 1960 All 410 it was certainly held by Dhavan, J. that a permission granted to the landlord under Section 3 of the U. P. Rent Control and Eviction Act confers upon him a personal right which is not transferable to his successor-in-interest. This view was, however, not accepted by a Division Bench of this Court in Rameshwar Dayal v. Smt. Mohania, 1963 All LJ 198 and it was held that the person, who applies for a permission under Section 3 of the U. P. Rent Control and Eviction Act, does so in his capacity as a landlord and the permission is granted to him in the same capacity in order to enable him to obtain possession of the accommodation by the eviction of the tenant occupying it. According to the Division Bench there is no question of conferring any personal right in the grant of a permission and the benefit of the permission cannot, therefore, be confined to the person to whom the permission was granted. The Bench also observed that if a permission is obtained by a landlord as a landlord there appears no reason why it should come to an end on his death and it should not enure for the benefit of the person who succeeds him as a landlord.

What is true of an heir after the death of the landlord appears to me to be equally true of a purchaser from him and if on the death of the landlord his heir can avail of the permission granted to the deceased landlord for evicting his tenant, a purchaser from such landlord is, in my opinion, equally entitled to do so. The reasons which Impelled the permission granting authority to grant the permission might have been of a purely personal character based on the personal needs of the landlord to whom the permission was granted but the Court is concerned with the permission itself and not with the reasons behind the permission. This proposition has also clearly been laid down in Rameshwar Dayal's case, 1963 All LJ 198. The point in controversy appears to me, therefore, to be entirely covered by the above authority and the plain tiff must be held to be entitled to the benefit of the permission granted to Shanti Swaroop and to sue for eviction of the defendant on that basis.

6. It was next urged on behalf of the defendant that Shanti Swaroop should be deemed to have waived the benefit of the permission inasmuch as he took no steps for evicting the defendant from 31st July 1957 when the permission became operative till 17th April 1958 when he sold the accommodation to the plaintiff. In reply to this argument it was contended on behalf of the plaintiff that permission to sue for eviction under Section 3 of the U. P. Rent Control and Eviction Act being only a removal of the bar against the exercise of proprietary rights of a landlord there can be no question of a waiver of the permission. It does not appear to me necessary to decide the question whether the doctrine of waiver can apply in the case of a permission to sue for eviction granted under Section 3 of the U. P. Rent Control and Eviction Act, because in the present case there is nothing to prove or indicate a waiver. The mere fact that Shanti Swaroop did not take any steps for evicting the defendant till 13th April 1968 cannot amount to waiver.

The plaintiff too, cannot be said to have waived the benefit of the permission because of not having taken any steps towards the eviction of the defendant till several months after purchasing the accommodation. Waiver of a right cannot lightly be inferred and at any rate something more than mere inaction is necessary to establish waiver. The learned counsel for the respondent drew my attention to the fact that Shanti Swaroop accepted rent from the defendant for periods subsequent to 31st July 1957 and urged that this conduct of his is indicative of the fact that he had given up his intention to sue the defendant for eviction. I do not, however, think that any such Inference can legitimately be drawn. The rent would naturally be realisable for the period during which the defendant was allowed to continue in occupation of the accommodationas a tenant and the acceptance of rent does not, therefore, add anything to the situation. In these circumstances the plaintiff is entitled to a decree for ejectment on the basis of the permission granted to Shanti Swaroop and the Courts below were in error in refusing to grant that relief to him.

6. In view of the fact that the plaintiff is entitled to a decree for eviction on the basis of the permission granted by the Rent Control and Eviction Officer under Section 3 of the U. P. Rent Control and Eviction Act, it is not necessary for him to establish that there has been a default in payment of rent on the part of the defendant in spite of a notice of demand. I, therefore, do not enter into the question whether the defendant was in default or not. Since the plaintiff is entitled to recovery of possession, he is also entitled to the amount claimed by him as damages for use and occupation.

7. In the result the appeal is allowed, thedecree of the lower appellate Court is set asideand the suit is decreed in its entirety. In thecircumstances of the case, the parties will beartheir own costs in all the Courts.


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