- (1.) J. C. Gupta, J. This is tenants' petition.
(2.) THE dispute relates to house No. 185-B, 187, 188 Municipal Ward No. 7 Gandhi Nagar, Distt. Basti. THE accommodation in question was taken on rent by one Sita Ram in the year 1935. Respondent No. 2 is the landlady of the said accommodation. On 19-12-1966 she filed an application under Section 3 (1) of the U. P. Temporary (Control of Rent and Eviction) Act, 1947, hereinafter referred to as the 'old Act', for permission to file suit for ejectment on the ground of her personal need. This application was filed against registered firm M/s Mahadeo Lal Murlidhar through Janki Prasad, a partner of the firm. THE Rent Control and Eviction Officer rejected the said application on 15-6-1967. Revision filed by the landlady was allowed by the Commissioner on 21-9-1967 holding that the need of the landlady was genuine and further that the tenants have got a number of properties of their own and they had no need of the premises in question at all. Thus by the order of Commissioner the landlady's application for filing suit for eviction of the tenants was allowed. Against that order the tenants made representation under Section 7 of the Old Act before the State Government and obtained an order of stay but ultimately the reference was rejected. On the basis of permission granted by the Commissioner the landlady gave notice under Section 196 of the Transfer of Property Act terminating the tenancy and after the expiry of notice period, Suit No. 335/67 for eviction of the tenants was filed on 8-11-1967. In the said suit an application was moved by tenants alleging that plaintiff was not the sole owner of the property in dispute. That application was rejected on 10-11-1971. THE tenants challenged the said order in Civil Revision No. 101/71 in the Court of District Judge and obtained an order of stay whereby proceedings of suit were stayed. THE District Judge dismissed the said revision on 18-6-1972. During the pendency of revision Janki Prasad one of the partner of the firm died and his legal heirs were brought on record by way of substitution. Against the order of substitution the tenant then filed Civil Revision No. 924/72 in the High Court and got the records of Court's below summoned with the result that no progress in the proceedings of suit could be made. THE revision was then dismissed by the High Court on 18- 7-1973 but the lower Court's record was not sent back for long. On the complaint made by plaintiff-landlady the record was transmitted back and the said suit was transferred from the Court of Munsif to Judge Small Causes Court where it was re-numbered as J. S. C. C. Case No. 59/74. THE tenant again with a view to delay the proceedings moved an application that the suit has abated as all the heirs of Janki Prasad deceased have not been impleaded. By the order dated 2-6-1975 Judge Small Causes abate the suit. Landlady filed revision against that order which was allowed and the landlady was directed to file an application for impleadment. Against the order of Revisional Court the tenant filed Revision No. 3510/78 in the High Court but the same was dismissed by the order dated 28-2-1979. THE impleadment application moved by landlady was allowed by the trial Court on 10-8-1979 and Ginni Devi was impleaded as heir of Late Janki Prasad. THE tenant then again filed Revision No. 142/79 but the same was dismissed by the District Judge. Landlady thereafter filed an application for amendment of plaint for consequential reliefs of damages and subletting during the pendency of proceedings. That amendment application was allowed in part by the order dated 5-11-1979. THE said order was challenged in Revision No. 177 of 1979 but this was also dismissed. Finally S. C. C. Suit for ejectment was decreed by the trial Court on 5-5-1980. THE tenant filed Revision No. 64/80 and the Revisional Court by the judgment dated 25-7-1980 dismissed the suit on the ground of non-service of termination notice. THE landlady filed Writ Petition No. 9473 of 1980 but it was dismissed by High Court by the judgment dated 2-9-1983 with the following conclusion : "it is, therefore, clear that the plaintiff having failed to discharge the burden of having served the notice under Section 106 of the Transfer of Property Act, the tenancy will not be deemed to have been terminated and consequently the suit for ejectment cannot succeed. In the circumstances the question of service of notice on each heir pales into in significance. In view of the finding given by the Court below the notice sent by the plaintiff was not even served on the defendant, there is no question of the notice being served on each heir of the deceased Sita Ram. In this view of the matter, the contention of the learned Counsel that the Court below had taken a manifestly erroneous view on the question of service of the notice is without any basis. THE finding by the Court below is in accordance with law and in this view of the matter, I do not find any case made out for interference with the order of the Court below dismissing the suit. In the result, therefore, the writ petition fails and is dismissed with costs. " It may further be seen that the High Court while dismissing writ petition proceeded on the basis that on the death of tenant his heirs became co-tenants and thus each heir had the status of tenant in common and, therefore, service of notice of termination on each heir was essential. The landlady filed Special Leave Petition before the apex Court wherein leave was granted. When the proceedings of S. C. C. Suit were pending in the Court of Judge Small Causes, the U. P. Act No. XIII of 1972, hereinafter referred to as the 'new Act', came into force will effect from 15-7-1972 and by Amending Act No. 37 of 1972, Section 43 (2) (rr) was inserted with effect from 20-9-1972. On legal advice, the landlady then filed an application on 29-9-1983 under Section 43 (2) (rr) for enforcement of permission granted under Section 3 (1) of the old Act for eviction of tenant. This application was allowed by the Prescribed Authority by the order dated 12-3-1984, quashing of which has been sought in this writ petition and whose copy has been annexed as Annexure-VI to the writ petition.
(3.) THIS writ petition was dismissed in default on 5-1-1995. Tenants moved an application for restoration of writ petition which was registered as Civil Misc. Application No. 1575 of 1995 but that application was also rejected by this Court by the order dated 19-2-1996. Against that order the tenants filed Civil Appeal No. 801/1997 arising out of SLP (C) No. 5677 of 1996, before the apex Court. The Hon'ble Supreme Court disposed of appeal restoring writ petition to its original number on certain terms and conditions. It may be relevant to mention also that the Special Leave Petition filed against the judgment of this Court dated 2-9-1983 dismissing Writ Petition No. 9473/80 was dismissed on 19-4-1993 in default. The Court has heard Sri K. M. Dayal, Senior Advocate and Sri Atul Dayal for the petitioners and Sri A. K. Gupta for the landlady-respondent on a number of dates.;