# Mohd. Asharaf and another v. A.D.J., Varanasi and others

- **Citation:** (2007) 3 ILRA 897
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-10-10
- **Case number:** Civil Misc. Writ Petition No. 55427 of 2007
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-asharaf-and-another-v-a-d-j-varanasi-and-others-41145
- **Pages:** 4

## Headnote

Sri Kripa Shanker Singh
Sri Ateeq Ahmad Khan
Sri R.K. Mishra
Sri Swapnil Kumar
Sri Ajay Kumar
Sri Ajeet Kumar
Sri Manu Saxena
S.C.

(A) U.P. Urban Buildings (Regulation of
Letting Rent and Eviction) Act, 1972Section 20 (4)-Date of first hearing-if the
written statement is filed on first day or
at
the
time
allowed
by
Court-the
adjourned date shall be treated as first
date of hearing-held-petitioner entitled
for benefit of Section 20 (4) of the Act.

Held: Para 5

That if written statement is filed within
the time/extended time granted by the
court then no date prior to the date of
filing of written statement can be taken
to be the date of first hearing. In the
instant case on 4.9.2000 petitioners
were permitted to file written statement
by 19.10.2000 and on 19.10.2000 they
filed
written
statement,
hence
19.10.2000 was the date of first hearing.
Accordingly,
in
my
opinion
the
petitioners were fully entitled to the
benefit of section 20 (4) of the Act.
Case law relied on.
2004 (2) ARC-659

(B) U.P. Urban buildings (Regulation of
letting Rent and Eviction Act, 1972Section 20 (2)(e)-Sub letting-whether
the brother or the son of brother of chief
tenant
working
in
the
same
room
without partition or rent can be treated
as sub tenant?-held- 'No'.

Held: Para 10

The Supreme Court has clarified that in
case tenant completely withdraws his
possession from the entire tenanted
building and allows it to be occupied by
his brother, then it will amount to
subletting. On the same principle, if
petitioner No.1, the tenant allowed his
real brother's son, i.e. petitioner No.2 to
occupy a small portion of the shop in
dispute and do independent business
there from, then it cannot amount to
subletting.
Case law discussed:
ADJ (2) ARC-64
AIR 2002 SC-676

## Text

3 All] Mohd. Asharaf and another V. A.D.J., Varanasi and others
897
190 (1) (b) Cr.P.C. the impugned order is
vitiated.

12. In view of the above discussion,
the revision succeeds. The impugned
order dated 28.2.2001 is set aside. The
case is remanded to the Magistrate
concern
for
a
decision
afresh
in
accordance with law.

Certify the judgment to the court
below within two weeks.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2007

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 55427 of 2007

Mohammad Asharaf and another

...Petitioners
Versus
Additional District Judge, Court No. 9,
Varanasi and others
...Respondents

Counsel for the Petitioners:
Sri D.S.P. Singh
Sri Shailendra Kumar Singh

Counsel for the Respondents:
Sri Kripa Shanker Singh
Sri Ateeq Ahmad Khan
Sri R.K. Mishra
Sri Swapnil Kumar
Sri Ajay Kumar
Sri Ajeet Kumar
Sri Manu Saxena
S.C.

(A) U.P. Urban Buildings (Regulation of
Letting Rent and Eviction) Act, 1972Section 20 (4)-Date of first hearing-if the
written statement is filed on first day or
at
the
time
allowed
by
Court-the
adjourned date shall be treated as first
date of hearing-held-petitioner entitled
for benefit of Section 20 (4) of the Act.

Held: Para 5

That if written statement is filed within
the time/extended time granted by the
court then no date prior to the date of
filing of written statement can be taken
to be the date of first hearing. In the
instant case on 4.9.2000 petitioners
were permitted to file written statement
by 19.10.2000 and on 19.10.2000 they
filed
written
statement,
hence
19.10.2000 was the date of first hearing.
Accordingly,
in
my
opinion
the
petitioners were fully entitled to the
benefit of section 20 (4) of the Act.
Case law relied on.
2004 (2) ARC-659

(B) U.P. Urban buildings (Regulation of
letting Rent and Eviction Act, 1972Section 20 (2)(e)-Sub letting-whether
the brother or the son of brother of chief
tenant
working
in
the
same
room
without partition or rent can be treated
as sub tenant?-held- 'No'.

Held: Para 10

The Supreme Court has clarified that in
case tenant completely withdraws his
possession from the entire tenanted
building and allows it to be occupied by
his brother, then it will amount to
subletting. On the same principle, if
petitioner No.1, the tenant allowed his
real brother's son, i.e. petitioner No.2 to
occupy a small portion of the shop in
dispute and do independent business
there from, then it cannot amount to
subletting.
Case law discussed:
ADJ (2) ARC-64
AIR 2002 SC-676

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
petitioner.
898 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
2. This is tenants' writ petition.
Landlord-respondent no. 3 Mohd. Shafeek
Ahmad Siddiqui filed suit for eviction
against the tenant petitioner in the form of
S.C.C. Suit no.61 of 2000 on the ground
of
default and
sub-letting.
J.S.C.C.
Varanasi
decreed
the
suit
through
judgement and decree dated 29.1.2000.
Against the said judgement and decree
petitioner filed Civil Revision (ought to
be S.C.C. Revision) No.7 of 2002. A.D.J.
Court No.9 Varanasi dismissed the
revision
on
23.10.2003,
hence
this
petition.

3. Rate of rent is Rs.75/- per month
and the property in dispute is a shop
situate in Varanasi.

4. In respect of default tenantpetitioner sought the benefit of section 20
(4) of U.P. Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972.
In order to avail the said benefit
petitioners
deposited
Rs.2428/-
on
4.8.2000 and Rs.2108/- on 19.10.2000.
Date 04.08.2000 was the date fixed in the
summons. On the said date petitioners
sought adjournment on the ground of
illness of their counsel, which was
granted and 04.09.2000 was fixed. On
04.09.2000 also some more adjournment
was sought by the tenants-petitioners
which was allowed and 19.10.2000 was
fixed. There is no serious dispute that if
19.10.2000 is taken to be the date of first
hearing, then the petitioners' deposit was
complete and they were entitled to the
benefit of Section 20 (4) of the act.
However,
the
courts
below
took
04.08.2000 as the date of first hearing.

5. After discussing five authorities
of the Supreme court on the interpretation
of first date of hearing used in section 20
(4) of the Act, I have held in K.K. Gupta
vs. A.D.J.2004 (2) A.R.C. 659. That if
written statement is filed within the
time/extended time granted by the court
then no date prior to the date of filing of
written statement can be taken to be the
date of first hearing. In the instant case on
4.9.2000 petitioners were permitted to file
written statement by 19.10.2000 and on
19.10.2000 they filed written statement,
hence 19.10.2000 was the date of first
hearing. Accordingly, in my opinion the
petitioners were fully entitled to the
benefit of section 20 (4) of the Act.

6. In respect of sub-letting the
allegation was that defendant-petitioner
no. 1 had sublet the shop in dispute to
defendant no. 2, Najmuz Zaman. Najmuz
Zaman is son of real brother of the tenant.
Issue no. 6 framed by the trial court and
point no. 3 framed by revisional court
related to sub-tenancy.

7. Revisional Court has categorically
held that petitioner No.2 is son of real
brother of petitioner No.1 and petitioner
No.2 is having his P.C.O. in a portion of
the shop in dispute. However, there is no
finding
that
the
portion
in
which
petitioner No.2 is having his P.C.O. has
been so completely separated from the
main shop that it has become an
independent shop having got no concern
with the remaining portion. There is no
allegation that walls etc. had been placed
and the portion where petitioner No.2 is
carrying on the business of P.C.O. has got
independent opening.

8. Even though by virtue of Section
105 of Transfer of Property Act, there
cannot be any tenancy or sub-tenancy
without rent, however in case of subtenancy it is not necessary for the landlord
3 All] Mohd. Asharaf and another V. A.D.J., Varanasi and others
899
to prove that rent was paid by the subtenant to the chief tenant for the reason
that it is almost impossible for the
landlord to collect evidence in that regard,
particularly
when
sub-tenancy
is
prohibited under law. Accordingly, it has
been held in several authorities that mere
exclusive possession of a person, other
than tenant, may be sufficient to prove
sub-tenancy vide Bharat Sales Ltd., M/s.
V. Life Insurance Corporation of India
AIR 1998 S.C. 1240" and J.S. Sodhi Vs.
A. Kaur 2005 (1) SCC 31. It is also
correct that neither real brother nor his
son is included in the definition of family
of the tenant as provided under Section
3(g) of the Act. However, in this regard,
the case of a very close relation of tenant
will have to be placed at a slightly
different level, than the case of a total
stranger.

9. Sub-letting: is a ground for
eviction under Section 20 (2) (e) of the
Act, which is quoted below:-

"20(2)(e) that the tenant has sub-let,
in contravention of the provisions of
Section 25, or as the case may be, of the
old Act the whole or any part of the
building"

Section 25 of the Act is quoted below:-

"25. Prohibition of Subletting -(1)
No tenant shall sub-let the whole of the
building under his tenancy.
(2) The tenant may with the permission in
writing of the landlord and of the District
Magistrate, sub-let a part of the building.

Explanation - For the purposes of this
section-

(i) where the tenant ceases, within the
meaning of clause (b) of sub-section
(1) or sub-section (2) of Section 12,
to occupy the building or any part
thereof, he shall be deemed to have
sub-let that building or part;
(ii) lodging a person in a hotel or a
lodging house shall not amount to
sub-letting."

Section 12(1) (b) is quoted below:-

"12. Deemed vacancy of building in
certain cases.-(1) A landlord or tenant of
a building shall be deemed to have ceased
to occupy the building or a part thereof if-
(b) he has allowed it to be occupied by
any person who is not a member of his
family"

10. On a plain reading of the above
provisions, one may get an impression
that if tenant has allowed his brother or
brother's son to reside with him in the
tenanted
accommodation
or
to
do
business from a portion of the tenanted
shop,
then
sub-letting
takes
place.
However, the Supreme Court in AIR
2002 SC 676 "Ganesh Trivedi v.
Sundar Devi" has held that if the tenant
of a residential building allows his brother
to reside with him then it does not amount
to vacancy or sub-letting. The Supreme
Court has clarified that in case tenant
completely withdraws his possession from
the entire tenanted building and allows it
to be occupied by his brother, then it will
amount to subletting. On the same
principle, if petitioner No.1, the tenant
allowed his real brother's son, i.e.
petitioner No.2 to occupy a small portion
of the shop in dispute and do independent
business there from, then it cannot
amount to subletting.
900 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
11. Accordingly, I am of the opinion
that findings of the courts below on both
the points, i.e. Denial of benefit of Section
20(4) of the Act to the tenant and subletting are erroneous in law and liable to
be set aside.

12. Accordingly, writ petition is
allowed. Both the impugned judgments,
decree of trial court and order of the
revisional court are set aside. Suit of the
landlord for eviction is dismissed. Decree
for recover of rent/permission to the
landlord
to
withdraw
the
amount
deposited by the tenant shall stand.

13. I have held in Khursheeda Vs.
A.D.J., 2004 (2) ARC 64 that while
granting relief against eviction to the
tenant in respect of building covered by
Rent
Control
Act,
writ
court
is
empowered to enhance the rent to a
reasonable extent.

14. The shop in dispute is quite big
in size and is situated in Varanasi.
Accordingly, it is directed that w.e.f.
October, 2007, onwards tenant petitioner
shall pay rent to the landlord respondent
@ Rs.1750/- per month inclusive of water
tax etc. No further amount over and above
Rs.1750/- per month shall be payable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ petition No 57671 of 2007

Smt. Lalita and another ...Petitioners
Versus
Union of India and others ...Respondents

Counsel for the Petitioners:
Sri Sanju Ram

Counsel for the Respondents:
Sri Govind Saran
S.C.

Constitution
of
India-Art.
226Compassionate
appointment-wife
of
deceased employee was 28 years at the
time of death-never claimed for her
appointment-after
18
years
claimed
appointment to her son (adopted) who
was minor at that time-rejection of such
belated claim-held-proper-not a right of
succession of employee-or vested right
of claimant but to provide immediate
succor to the bereaved family-claim after
such long time-contrary to very object of
compassionate appointment.

Held: Para 18

We are, therefore, clearly of the view
that
the
claim
for
compassionate
appointment after a long time would be
contrary to the very basis, purpose and
objective
of
the
scheme
of
compassionate appointment and cannot
be considered at all. We do not find any
fault in the judgment of the learned
Tribunal
dismissing
the
Original
Application of the petitioners.
Case law discussed:
AIR 1989 SC 1976, 1994 (4) SCC-138, JT 1997
(8) SC 332, 1998 (5) SCC 192, JT 2000 (10)