# Deep Chand v. Sunder Lal and others

- **Citation:** (2000) 3 ILRA 178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-09-30
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deep-chand-v-sunder-lal-and-others-39183
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000

178
the official before this court regarding
paucity
of
funds,
Racks,
Hall
(accommodation etc. ) is of no avail or
purpose to the candidate.

11. Sri A.K. Mehrotra, learned
Standing Counsel, submit that U.P. Board
does not have proper facilities for storing
copies, Evaluation Hall, generator in case
of electricity failure, funds and other
connected infrastructure so as to ensure
the work of scrutiny to be completed
promptly i.e. within 4 to 6 weeks.

12. Difficulties of the Board cannot
be ignored or overlooked. For this
purpose a general mandamus is being
issued to the State of U.P. through
Secretary. Madhyamik Shiksha, and Chief
Secretary Government of U.P. to consider
the proposal of the Board, if one is
submitted with relevant facts, figures and
documents
for
providing
requisite
facilities to hold 'proper' examinations as
well as 'scrutiny' the same shall be
considered
giving
top
priority,
as
'Education' cannot be ignored if we want
to put the State in order. Results have to
be declared within the desired time so that
students and their parents are not harassed
apart
from
burdening
this
court
compelling
individual
to
file
writ
petitions.

13. Court however, feels that U.P.
Board has made no serious effort to
improve the situation except repeating its
difficulties in a stereotype form. Board
was aware in advance this time of the
decision of this court. Hence it must
declare the result by 30th September,
2000.

14. Accordingly, this petition is
allowed, U.P. Board Respondent No. 2 is
directed to complete entire work of
scrutiny by 30th September,2000 and to
declare results as indicated above in
accordance
with
law.
If
for
some
compelling reasons the Board requires
more time it will approach this Court by
filing an application in this petition for
extension of time but it is made clear that
in no case the time will not be extended
beyond 31st October, 2000 as committed
by itself.

15. It is further directed that a copy
of this judgement be sent to Chief
Secretary for information to ensure that
adequate infrastructure is being provided
to the Board for proper conductance of
examination and its scrutiny work in
future.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' $8*867
'$7(' $//$+$%$' $8*867
%()25(
%()25(
7+( +21·%/( 5+=$,', -
7+( +21·%/( 5+=$,', -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

'HHS &KDQG
«3HWLWLRQHU
9HUVXV
6XQGHU /DO DQG 2WKHUV
3ODLQWLII
'HIHQGDQWV
«5HVSRQGHQWV
&RXQVHO IRU WKH SHWLWLRQHU
6UL 9. *XSWD
6UL 0. *XSWD
&RXQVHO IRU WKH 5HVSRQGHQWV
6UL $. *XSWD

&RQVWLWXWLRQ RI ,QGLD $UWLFOH :ULW
SHWLWLRQ
E\
XQDXWKRULVHG
RFFXSDQW
0DLQWDLQDELOLW\
3All] Deep Chand V. Sunder Lal and others 179

+HOG 3DUD
,W LV ZHOO VHWWOHG LQ ODZ WKDW WKH VXE
WHQDQW LV QHLWKHU D QHFHVVDU\ SDUW\ WR
VXFK D VXLW QRU LW LV QHFHVVDU\ WR VHUYH D
QRWLFH XQGHU 6HFWLRQ RI WKH 7UDQVIHU
RI 3URSHUW\ $FW 7KHUHIRUH SHWLWLRQHU
FDQQRW FODLP DQ\ EHQHILW RI UDWLR RI WKH
GHFLVLRQ RI )XOO %HQFK LQ WKH 1RRWDQ
.XPDU¶V FDVH VXSUD 7KH FRQWHVWLQJ
UHVSRQGHQW LV ULJKW LQ KLV VXEPLVVLRQ
WKDW DQ XQDXWKRUL]HG RFFXSDQW SRVVHVVHV
QR ULJKW HQIRUFHDEOH LQ ODZ DQG LV OHJDOO\
QRW
HQWLWOHG
WR
ILOH
DQG
PDLQWDLQ
D
SHWLWLRQ
XQGHU
$UWLFOH

RI
WKH
&RQVWLWXWLRQ RI ,QGLD DV KHOG E\ WKLV
&RXUW LQ 5DNHVK .XPDU¶V FDVH 6XSUD
&DVHV UHIHUUHG
 $5& )%
 $/5

By the Court

1. By means of this petition filed
under Article 226 of the Constitution of
India, petitioner prays for issuance of a
writ, order or direction in the nature of
certiorari quashing the judgment and
decree dated 05.09.1997 passed by the
trial Court in S.C.C. Suit No. 79 of 1985
and the judgment and order dated
31.07.2000 passed by the revisional Court
in S.C.C. Revision No. 62 of 1997.

2. Relevant facts of the case giving
rise to the present petition, in brief, are
that Shri Sunder Lal, respondent no.11
filed a suit for ejectment and recovery of
rent and damages against respondents no.
2 and 3 and the petitioner Shri Deep
Chand pleading that the building in
dispute was let out to the respondents no.
2 and 3 at a monthly rent of Rs.90/- who
have defaulted in payment of rent for 33
months.
A
notice
of
demand
and
termination of tenancy was served upon
them on 22.07.1984 but they failed to pay
the rent. On the other hand. They have
sub-let the premises in question to the
petitioner without the consent of the
respondent and started realizing Rs.375/-
per month as rent from the petitioner.
Hence the suit for the above mentioned
relates. By means of amendment, plea of
material
alternation.
Diminishing
the
value of the building in question was also
taken Respondents no. 2 and 3 filed their
written
statement
admitting
the
relationship
of
landlord
and
tenant
denying the rest of the allegations. It was
also pleaded that the petitioner was
permitted to manage their business of IceCandy who committed irregularities in
accounts. On the other hand petitioner
also filed a written statement pleading that
respondents no. 2 and 3 were acting in
collusion
with
respondent
no.1
He
claimed that he was the tenant of the
premises in dispute in his own right and
had been carrying Ice- Candy business in
the name of Parle Ice-Candy. He with the
consent of plaintiff respondent. Carried
out renovation of the premises in dispute.
In which substantial amount was spent
which was liable to be adjusted in the
future rent. The suit as framed and filed
was legally not maintainable and was
liable to be dismissed.

3. Trial Court on the basis of
pleading of the parties, framed issues.
Issue
no.
1
related
to
structural
alternations diminishing the value of the
building in question. Issue no.2 related to
sub letting to defendant-petitioner; Issue
no.3 related to the validity of notice; Issue
no. 4 to related to the default in payment
of rent and issue no. 5 to the relief. The
trial Court held that the petitioner was the
subtenant of respondents no. 2 and 3 in
the building in question. While dealing
with issue no. 1 it was held that although,
alternations in the building in question
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

180
were made but by the same, the value of
the building was not diminished, the
notice under Section 106 of the Transfer
of Property Act was held valid and it was
also held that it was not necessary to give
any notice to terminate the sub-tenancy of
the petitioner. Issue no. 4 was decided in
affirmative observing that the respondents
no.2 and 3 committed default in payment
of rent and that it was not necessary to
record any finding with respect to the
default committed by the petitioner who
was
inducted
as
a
su-tenant
by
respondents no. 2 and 3. Fifth and last
issue was decided in affirmative and the
suit filed by the respondent no.1 was
decreed for ejectment and for recovery of
arrears of rent amounting to Rs.3020/-
with damages pendente lite and future by
judgment and order dated 05.09.1997.
Respondents no.2 and 3 did not challenge
the validity of the judgment and decree
passed by the trial Court. A revision
against the said decree was filed by the
petitioner. The revisional Court affirmed
the findings recorded by the trial Court. It
was held that the trial Court took into
consideration the entire evidence, oral and
documentary on the record, thereafter
recorded findings on the issues involved
in the case in accordance with law, which
did not suffer from any jurisdictional
error.
The
revisional
Court, having
recorded the said findings dismissed the
revision by its judgment and order dated
31.07.2000 hence the present petition.

4. Learned counsel for the petitioner,
Shri V.K. Gupta, vehemently urged that
the
Courts
below
have
misread,
misconstrued and ignored the material
evidence on the record and erred in law in
holding that the petitioner was merely a
sub-tenant. He asserted that from the
material on the record, it was conclusively
proved that the petitioner was the tenant
of the building in question in his own
right. The Courts below acted illegally in
holding to the contrary and in decrecing
the suit filed by respondent no. 1 and
dismissing the revision filed by the
petitioner. It was also urged that petitioner
had no order of allotment in his favour,
therefore, his status was that of an
unauthorized occupant. Therefore, the suit
as framed and filed was legally not
maintainable and the decree passed by the
trial Court which had no jurisdiction to
pass the said decree was a nullity. In
execution of the said decree, the petitioner
cannot be ousted from the building in
question.
In
support
of
the
said
submission, reliance was placed by
learned counsel for the petitioner upon the
decision in Nootan Kumar and others Vs
II Additional District Judge, Banda and
others reported in 1993 (2) A.R.C.204
(F.B.).

5. On the other hand, learned
counsel appearing for the respondents
no.2 and 3 Shri A.K. Gupta supported the
validity of the judgment, orders and
decree passed by the Courts below. It was
urged that the findings recorded by the
Courts below are concurrent findings of
fact which are based on relevant evidence
on the record and do not suffer from any
illegality or infirmity. It was also urges
that before the Courts below the petitioner
never
claimed
that
he
was
an
unauthorized occupant. He, on the other
hand, has contended that he was the
tenant of the building in question in his
own right. At this stage, therefore, he
cannot be permitted to contend that he
was unauthorized occupant or a trespasser
and the suit filed by the respondent no. 1
was legally not maintainable or that the
trial Court has no jurisdiction to entertain
3All] Deep Chand V. Sunder Lal and others 181

and decide the suit. Alternatively, it was
submitted that an unauthorized occupant
has got no right enforceable in law,
therefore, the petitioner has got no right to
file the present petition under Article 226
of the Constitution of India. Reliance in
support of this submission is being placed
upon the decision in Rakesh Kumar Vatsa
Vs District Judge., Saharanpur, reported
in 2000 (38) A.L.R. 575. It was urged
that the writ petition was concluded by
findings of fact and was liable to be
dismissed with costs.

6. I have considered the submissions
made
by
learned
counsel
for
the
petitioner.

7. Learned counsel for the petitioner
has utterly failed to demonstrate any
misreading of any material evidence by
the Courts below. He also could not show
that any material evidence was ignored by
the said Courts. The Courts below have
taken into consideration and critically
examined the entire evidence on the
record,
oral
and
documentary
and
thereafter, recorded findings on the issues
involved in the case. Learned counsel for
the petitioner failed to show from the
record any material evidence on the basis
of which it could be held that the
petitioner was the tenant of the building in
question. On the other hand, from the
evidence, oral and documentary, it was
conclusively proved that the respondents
no.2 and 3 were tenants-in chief of the
building in question who, without any
permission in writing of the respondent
no.1 sub-let the same to the petitioner.
Petitioner was, thus, a sub-tenant of the
building in question. The status of the
person is a question of fact. In exercise of
power
under
Article
226
of
the
Constitution of India, this Court cannot go
into the questions of fact, cannot appraise
or re-appraise the evidence cannot reverse
the findings recorded by the Courts below
and cannot substitute its own findings in
place thereof. The findings recorded by
the Courts below are based on relevant
evidence on the record. I do not find any
illegality or infirmity in the said findings.
So far as the question of maintainability
of the suit filed by respondent no.1 and
the jurisdiction of the trial Court (Judge
Small Causes Court) is concerned, the
said plea was not taken by the petitioner
in his written statement nor it was
otherwise asserted before the Courts
below. At this Stage, therefore, petitioner
cannot be permitted to change his case
and to assert that he was the unauthorized
occupant, as he did not have any order of
allotment in his favour. The suit was filed
on the basis of relationship of landlord
and tenant between the parties. (It is well
settled in law that the subtenant is neither
a necessary party to such a suit nor it is
necessary to serve a notice under Section
106 of the Transfer of Property Act.
Therefore, Petitioner cannot claim any
benefit of ratio of the decision of Full
Bench in the Nootan Kumar's case
(supra). The contesting respondent is right
in his submission that an unauthorized
occupant possesses no right enforceable
in law and is legally not entitled to file
and maintain a petition under Article 226
of the Constitution of India as held by this
Court in Rakesh Kumar's case (supra).

8. In view of the aforesaid
discussion, no case for interference under
Article 226 of the Constitution of India is,
at all, made out. The writ petition
deserves to be dismissed.

9. Lastly, learned counsel for the
petitioner submitted that some reasonable
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

182
time may be granted to the petitioner to
vacate the building in question, as at once
it will not be possible for him to arrange
another accommodation to carry on the
business which is being carried on in the
building in question. On the order hand,
learned
counsel
appearing
for
the
contesting respondents submitted that the
petitioner being only a sub-tenant of the
building in question, is legally not entitled
to any leniency in the matter. He is to be
ejected at once but with a view to end the
litigation between the parties, he stated
that he will have no objection if 8 months'
time is granted to the petitioner to vacate
the building in question subject to the
condition
petitioner
furnishes
an
undertaking in writing before the trial
Court within a period of 15 days from
today to the effect that immediately on
expiry of the aforesaid time, he shall hand
over
the
vacant
possession
to
the
respondent no.1 and shall also pay the
amount of damages for the period he
remains in occupation of the same, at the
rate he was paying to the respondents no.2
and 3.

10. In view of the aforesaid facts
and circumstances, it is hereby directed
the petitioner shall not be ejected from the
building in question for a period of 8
months from today subject to the
condition he furnishes an undertaking in
writing within 15 days from today before
the trial Court that he shall vacate the
building in question and hand over the
vacant possession to the respondent no.1
and also pay the amount of damages for
the period he remain in occupation of the
same at the rate he was paying to the
respondents no.2 and 3, failing which this
order shall stand automatically vacated
and law will take its own course.

11. Subject to what has been stated
above, the writ petition fails and is hereby
dismissed, but no order as to costs.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' 6(3
'$7(' $//$+$%$' 6(3
%()25(
%()25(
7+( +21·%/( %,12' .80$5 52< -
7+( +21·%/( %,12' .80$5 52< -
7+( +21·%/( /$.6+0, %,+$5, -
7+( +21·%/( /$.6+0, %,+$5, -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

6WDPS 9HQGHUV $VVRFLDWLRQ «3HWLWLRQHU
9HUVXV
7KH
6WDWH RI 83 WKURXJK WKH &KLHI
6HFUHWDU\
&LYLO
6HFUHWDULDW
83
/XFNQRZ DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL %1 3DWKDN
&RXQVHO IRU WKH 5HVSRQGHQWV
6PW 6DULWD 6LQJK
6&

&RQVWLWXWLRQ RI ,QGLD $UWLFOH DQG
25HDVRQDEOH
5HVWULFWLRQV2LQ
3XEOLF
LQWHUHVW HQKDQFHPHQW RI OLPLW RI VWDPS
IURP
5V
WR
5V
VXEVHTXHQWO\
UHGXFHG
UHVWULFWLRQV
FRQILQHG RQO\ ZLWK WKH VWDPS RI 5V
 DQG QRW RQ RWKHUV2UHVWULFWLRQ
HPSRVHG LQ SXEOLF LQWHUHVW LQ RUGHU WR
DYRLGH IUDQGXOHQW XVH DQG PLVXVH RI
VWDPS SDSHUV2QRW DUELWUDU\
+HOG2
7KH
DPHQGPHQW
PDGH
LV
FOHDUO\
SHUPLVVLEOH XQGHU $UWLFOH RI WKH
&RQVWLWXWLRQ
EHLQJ
LQ
WKH
LQWHUHVW
RI
μJHQHUDO SXEOLF¶ LPSRVLQJ D UHDVRQDEOH
UHVWULFWLRQ
ZKLOH
SHUPLWWLQJ
VDOH
RI
VWDPSV ZRUWK WR WKH H[WHQW RI 5V
RQO\ WR WKH 6WDPS 9HQGRUV XQGHU WKH
SURYLVLRQV
RI
WKH
6WDPS
ODZV
7KH
OLFHQVHG VWDPS YHQGHUV KDYH QRW EHHQ