S.C.Mathur, J. - (1.) The question raised in this petition is whether the non-4 residential premises in dispute can be deemed to have fallen vacant within the meaning of Section 12(1)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. XIII of 1972. The petitioner is landlord of the shop in dispute.
(2.) In January, 1974 the landlord moved an application for release of the shop in question in his favour on the allegation that Barati Lal was tenant of the shop and he allowed it to be occupied now by Salik Ram who is admittedly-the nephew of Barati Lal. In the application, Annexure 1, Barati Lal was impleaded as Opposite Party No. 1 and Salik Ram was impleaded as Opposite Party No. 2. Barati Lal and Salik Ram filed a joint written statement, a copy of which is Annexure No. 2. In Paragraph 10 it was stated that there was joint Hindu family and Barati Lal was the karta of the said joint Hindu family. He continued to be the karta of the said family. It was stated in Paragraph 11 that Salik Ram was also a member of the said Joint Hindu family and was conducting business as a member of the Joint Hindu family. It was further stated that on account of Barati Lal becoming old Salik Ram had now started sitting at the shop in which the joint family business is being carried on. On behalf of the petitioner landlord it was argued that on the facts of the case the shop in question would be deemed to have fallen vacant. The reliance was placed upon Section 12(1)(b) of the Act The Additional City Magistrate, Rent Control, agreed with the plea raised on behalf of the landlord and held the premises to have fallen vacant. This order of the Additional City Magistrate was challenged by Barati Lal and Salikram before the learned District Judge, Lucknow. The revision came up for hearing before the learned Second Additional District Judge, Lucknow who by his judgment and order, dated 9-12-1976, allowed the same and held that the premises was not vacant. It may be mentioned that before the learned Additional District Judge additional evidence was filed on behalf of Salik Ram and Barati Lal. This additional evidence comprised of the order of assessment made by the Income Tax Authorities for the assessment year 1973-74 ended on 31st March, 1973 in respect of the business run under the name and style of Badlu Ram Sukuru Ram. An affidavit was also filed. This additional evidence has been relied upon by learned Additional District Judge for recording the finding that there was Joint Hindu family of which Barati Lal was the karta. On this basis the learned District Judge came to the conclusion that the premises could not be said to have fallen vacant under Section 12(1)(b).
(3.) The above finding of the learned District Judge has been challenged by the petitioner through the present writ petition. On behalf of the petitioner it was argued by his learned Counsel Sri H.N. Tilhari that in their written statement Salik Ram and Barati Lal had admitted the petitioner's allegation that the tenancy was in the name of Barati Lal, and, therefore, there was no occasion for the learned District Judge to investigate as to whether there existed Joint Hindu family of which Barati Lal may be the karta. In Paragraph 2 of his application the petitioner stated that Barati Lal was the tenant of the premises in question on payment of Rs. 50 per month and he himself was the landlord. This paragraph was replied to by saving that the contents were admitted. However, the plea raised on behalf of a party has to be considered on the basis of the averments made in various paragraphs of its statement. Even after admitting the avernments made in Paragraph 2 of the application Barati Lal and Salik Ram Paragraphs 10 and 11 of their written statement pleaded that there was a Joint Hindu family of which Barati Lal was karta and as karta he was controlling the business looked after by different members of the Joint Hindu family. Thus, on the basis of the avernments made in Paragraph 2 of the written statement alone it cannot be said that it was not the case of Barati Lal and Salik Ram that there was Joint Hindu family of which Barati Lal was the karta. In the circumstances I am of the opinion that the learned Additional District Judge did not commit any manifest error when he proceeded to consider the plea raised in the written statement to the effect that there was joint Hindu family of which Barati Lal was the karia. It is not disputed between the parties that before the Trial Authority the Income Tax Assessment Order which, had been relied upon by the Revisional Court had not been filed but it was filed before the Revisional Court. The learned Counsel for the petitioner argued that this additional evidence could not be entertained at the revisional stage. The Act does not contain any prohibition against entertainment of additional evidence at the revisional or appellate stage. The entertainment of additional evidence was, thus, in the discretion of the Revisional Court and that discretion could not be said to have been improperly exercised inasmuch as the documents filed had bearing on the plea already raised in the written statement. I am, therefore, of the opinion that the submission of the learned Counsel has no substance.;