K. S. Varma, J. - (1.) THIS writ petition is directed against an order passed by the VI Additional District Judge, Unnao dated 21-5-1982. By this order revision application filed by opposite party no. 2 was allowed, the shop in question was declared to be vacant and the case was remanded to the Rent Control & Eviction Officer for the determination of the question whether the application for release made by opposite party no. 2 was genuine. THIS order has been challenged by Radhey Shyam and Hari Shanker in this writ petition.
(2.) IN order to appreciate the controversy between the parties it would be appropriate to state the facts of the case in some detail. The dispute relates to shop no. 117, situate in mohalla Jagannath Ganj in the city of Unnao. The Shop is owned by opposite party no. 2 and petitioner no. 1 Radhey Shyam is the tenant. Radhey Shyam has been doing business of gold-smith for the last 20 years and his main business is to polish and clean ornaments. According to petitioner no. 1 Radhey Shyam, Hari Shanker petitioner no. 2 is his employee in the said shop. It is maintained by petitioner no. 1 Radhey Shyam . that in fact the business is carried on by him and Hari Shanker petitioner no. 2 is his employee in the shop in question. The record of this writ petition indicates that in 1971 a suit was filed by Jagannath Prasad Srivastava against Radhey Shyam and Hari Shanker for their eviction from the shop in dispute. The ground taken in the suit was that Radhey Shyam had inducted Hari Shanker as sub-tenant. The suit was filed in the Court of Munsif South, Unnao and was numbered as suit No. 30 of 1971. It appears that on 14-5-1971 the said suit was compromised between the parties. The terms of the compromise are contained in Annexure 3 to the writ petition. The compromise states that the defendants had deposited the arrears of rent in court and the rest of the rent would be paid by 1st of November, 1971. The compromise also provides that with effect from November, 1971 the rent of the shop would be Rs. 25/- per month. It was also provided that plaintiff will have no right to eject Radhey Shyam. The compromise further states that Hari Shanker has no concern with the shop in question. Costs of the suit were given up by the plaintiff. The prayer in the compromise Annexure-3 is that the suit has been compromised in terms indicated in the application and that a decree be passed in the terms of the said compromise. After nearly seven years of the compromise referred to above Jagannath Prasad Srivastava moved an application, impleading Radhey Shyam and Hari Shanker, purporting to be under section 16, read with section 12 of U. P. Act XIII of 1972. IN the application, which is Annexure-1 to the writ petition it was stated that Jagannath Prasad Srivastava is the owner of shop No. 117, situate in mohalla Jagannathganj in the city of Unnao ; that the applicant Jagannath Prasad Srivastava wants to rebuild a new shop and a new stair-case for the upper storey; that for reconstruction of the accommodation in question the applicant had submitted a plan in the Municipal Board, Unnao, which has been sanctioned and approved. IN paragraph 4 of the application it was stated that Radhey Shyam was the tenant of said shop no. 117 but he has shifted his business to Kanpur. It is further stated that Hari Shanker is neither member of the family of Radhey Shyam nor is he concerned with the shop in question. The allegation is that Hari Shanker has been set up in the shop as Sikmi-tenant without the consent of the landlord. IN paragraph 6 of the application it has been stated as follows: " That under the circumstances the shop in question will be deemed to be vacant under section 12 (b) of the Act No. XIII of 1972. " The prayer in the application is that the shop in question namely, shop No. 117 be declared vacant under section 12 of the Act and that the same may be released in favour of the applicant to rebuild it according to plan already sanctioned. By Annexure-2 dated 18-12-79 Radhey Shyam and Hari Shanker filed objections to the said application. Opposite party No. 1 Radhey Shyam denies that he has sub-let the shop in question to opposite party no. 2 Hari Shanker. It is maintained that opposite party no. 2 is servant of opposite party no. 1 Radhey Shyam who is looking after the shop in question for which opposite party no. 1 pays salary to opposite party No. 2. Radhey Shyam denied that he has shifted his business to Kanpur or has sub-let the shop in question. He has stated that he has other business at Kanpur also since long. The shop at Unnao is being looked after by Hari Shanker for which Radhey Shyam pays him salary. IN paragraph 13 of the objections it was stated by Radhey Shyam and Hari Shanker that the intention of Jagannath Prasad Srivastava is to enhance rent or let it out to other tenant on enhanced rent. IN this respect reference was made to Suit No. 33 of 1972 which provided for enhancement of rent to Rs. 25/- per month. By reference to Suit No. 33 of 1971 it was contended by Radhey Shyam and Hari Shanker that Jagannath Prasad Srivastava had set up the plea that Radhey Shyam had sub-let the shop in question to opposite party no. 2 Hari Shanker but the same was not accepted by the court on the ground of admission of Jagannath Prasad Srivastava in the compromise that Hari Shanker was servant of opposite party no. 1 Radhey Shyam. It was contended that the question about the status of Hari Shanker in relation to shop in question is concluded by compromise Annexure-3 to the writ petition. It was further contended in the objections that there was no vacancy of the accommodation and section 12 of U. P. Act XIII of 1972 as not attracted. The application for release Annexure-1 was pending in the Court of the Rent Control and Eviction Officer when Jagannath Prasad Srivastava on 30-5-1981 filed a suit against Radhey Shyam and Hari Shanker in the Court of Munsif South, Unnao. IN paragraph 5 of the plaint Annexure-4 it was stated that Radhey Shyam has left the shop in question and when away to Kanpur and there he has set up his permanent business but in order to harass the plaintiff Jagannath Prasad Srivastava, Radhey Shyam inducted Hari Sanker as sub-tenant without the consent of the landlord. It is further stated in the said paragraph that Radhey Shyam has no authority to sub-let the accommodation in dispute to Hari Shanker. The prayer made in the suit was for a decree for the recovery of arrears of rent and for ejectment. Radhey Shyam and Hari Shanker contested the suit by filing a written statement which is Annexure-5 to the writ petition. IN paragraph 11 of the written statement it was denied that Hari Shanker was the sub-tenant of Radhey Shyam. IN paragraph 12 it has been stated that Hari Shanker in fact is the servant of Radhey Shyam and looks after management of the shop at Unnao. It was also stated that Radhey Shyam had not left his business at Unnao and had not shifted to Kanpur. Radhey Shyam maintains that his business is still going on in the shop in question. Annexure-6 to the writ petition indicates that suit No. 14 of 1981 was compromised between the parties. A reading of the compromise indicates that Radhey Shyam had deposited arrears of rent, costs of the suit and counsel's fee in court on 1-10-1981. The compromise further provides that upto October, 1981 the defendants were not in arrears of rent. The compromise still goes on to provide that the decree for ejectment prayed for by Jagannath Prasad Srivastava is given up. The actual words used in the compromise are :- " Decree bedakhali ki jo dadrasi Mangi gaee hai wah samat ki jawe " It is thus clear from Annexure-6 that Jagannath Prasad Srivastava did not press his claim for sub-tenancy and gave up his plea for ejectment of Radhey Shyam and Hari Shanker on the ground that Hari Shanker was admitted as sub-tenant of Radhey Shyam. The compromise also indicates that arrears of rent alongwith costs of the suit were taken by Jagannath Prasad Srivastava and in consideration of that he did not press his prayer for ejectment of Radhey Shyam and Hari Shanker. IN my opinion the compromise Annexure-6 indicates that Jagannath Prasad Srivastava gave up his plea that Hari Shanker was the sub-tenant of Radhey Shyam. At any rate, the plea of sub-tenancy was not pressed by Jagannath Prasad Srivastava as he gave up the prayer for decree for ejectment which he could have obtained on proof of sub-tenancy. IN terms of the compromise evidenced by Annexure-6 Suit No. 14 of 1981 was disposed of by Judge Small Causes by judgment dated 20-11-1981, a copy of which is Annexure-7 to the writ petition. A perusal of Annexure-7 would indicate that one of the issues framed in the suit was whether Hari Shanker was the sub-tenant of opposite party no. 1 Radhey Shyam. The finding of the Judge on issue no. 1 is that the plaintiff did not press this issue nor did he submit any evidence in support of that plea. Issue no. 1 was accordingly decided in the negative. Ultimately the suit was decreed for arrears of rent to the extent of Rs. 1750/-. The decree for ejectment prayed for in the suit was refused. It may at this stage be mentioned that during the pendency of Suit No. 14 of 1981 the application of Jagannath Prasad Srivastava for release of the accommodation on account of vacancy of the same was dismissed by the Rent Control and Eviction Officer on 14-10-1981. A copy of the order is Annexure-8 to the writ petition. Aggrieved by the order Annexure-8 Jagannath Prasad Srivastava filed a revision application under section 18 of U. P. Act XIII of 1971 in the Court of the District Judge, Unnao. The learned VI Additional District Judge by order dated 21-5-1982 set aside the order of the Rent Control and Eviction Officer and allowed the revision application of Sri Jagannath Prasad Srivastava holding that the accommodation had fallen vacant and that the question about the genuine need of the landlord and tenant be considered by the court below and for this purpose the case was remanded to the Rent Control and Eviction Officer. It may also be mentioned at this stage that during the pendency of the revision application before the Additional District Judge an application was moved by Radhey Shyam and Hari Shanker that the decree passed in Suit No. 14 of 1981 be brought on record as the decree did not exist at the time when order Annexure-8 was passed by the Rent Control and Eviction Officer. That application for additional evidence was rejected by the Additional District Judge by order dated 21-5-1982, a copy of the said order is Annexure-9 to the writ petition. In the writ petition I have heard Mr. H. S. Sahai for Radhey Shyam and Hari Shanker and Mr. H. N. Tilhari for Jagannath Prasad Srivastava. During the course of arguments in the writ petition, learned counsel for Jagannath Prasad Srivastava stated that Annexure-7 be taken into account while deciding the instant writ petition. A preliminary objection was raised by Mr. H. N. Tilhari that this petition is not maintainable on the ground that it is directed against an order declaring the accommodation to be vacant and in this respect he relied upon M/s. Tirlok Singh and Co. v. District Magistrate, Lucknow, 1976 AWC 610. By reference to this decision it was submitted that declaration of vacancy does not give rise to cause of action for a petition under Article 226 of the Constitution of India. In my opinion there is no merit in this preliminary objection. The question of vacancy arose out of an application under section 16 read with section 12 of U. P. Act No. XIII of 1972. A perusal of Annexre-1 would indicate that the prayer in the application was that shop No. 117 has become vacant and it should be released in his favour. It was in connection with the release application that the question of vacancy had to be decided by the Rent Control and Eviction Officer. A perusal of Annexure-1 would indicate that the ground for vacancy set up in the application was that Hari Shanker was inducted in the shop in question as a sub-tenant without the consent of the landlord. According to Jagannath Prasad Srivastava this rendered the accommodation vacant and that being the position he prayed that the accommodation be released. In this background the order passed by the Additional District Judge cannot be treated to be a mere order declaring vacancy of accommodation. The learned Additional District Judge held that the accommodation is vacant and directed the trial court to determine the question of bonafide need of landlord and tenant. Since the main relief pressed by Jagannath Prasad Srivastava was for the release of the accommodation the question of vacancy of the said accommodation had to be decided to determine whether the accommodation be released or not. In this background the preliminary objection is devoid of any merit as the order passed by the Additional District Judge is not a mere order declaring vacancy. It was contended by Mr. H. S. Sahai, learned counsel for the petitioner that the order of Additional District Judge is liable to be quashed on the ground that in view of the facts stated in the writ petition the accommodation cannot be said to be vacant: It is clear from Annexure-3 that in suit No. 33 of 1971 Jagannath Prasad Srivastava on the one hand and Radhey Shyam and Hari Shanker on the other agreed that rent of the disputed accommodation shall be increased to Rs. 25/- per month, and that Jagannath Prasad Srivastava would not be entitled to a decree for ejectment. It was provided in the compromise that Hari Shanker has no concern with the shop in suit. From a perusal of Annexure-3 one thing is clear that upto 14-10-1971 the date on which Annexure-3 was executed there was relationship of landlord and tenant between Radhey Shyam and Jagannath Prasad Srivastava did not press his plea for the ejectment of tenant from the shop in question. It appears from Annexure-3 that upto that stage no question of sub-tenancy of Hari Shanker was raised or adjudicated upon. During the pendency of application for release Anncxure-1, Suit No. 14 of 1981 was filed by Jagannath Prasad Srivastava against Radhey Shyam and Hari Shanker. In paragraph 5 of the plaint Annexure-4 it was asserted that Hari Shanker has been inducted as a sub-tenant. This fact was denied by Radhey Shyam and Hari Shanker in their written statement Annexure-5 to the writ petition in paragraphs 11 and 12. Annexuxe-6 is compromise whereby Jagannath Prasad Srivastava gave up his prayer for the ejectment of the defendants from the shop in question. A perusal of Annexure-7 would indicate that the court while deciding Suit No. 14 of 1981 had framed an issue whether Hari Shanker was sub-tenant of Radhey Shyam. On this issue the finding recorded by the court is that plaintiff Jagannath Prasad Srivastava did not produce any evidence to prove sub-tenancy and therefore, the issue was decided in the negative. Ultimately a decree was passed on 20-11-1981 for arrears of rent and the decree for ejectment was not pressed. From what has been stated above, it is obvious that Radhey Shyam continues to remain tenant of the shop in question and the question of subtenancy raised by Jagannath Prasad Srivastava was not pressed and issue no. 1 was decided in the negative. Irresistible conclusion deducible from Annexure-3 is that the tenancy of Radhey Shyam subsisted and that Hari Shanker was not found to be sub-tenant. It may be appreciated that when application under section 16 of the Act was decided by Kent Control and Eviction Officer, the judgment Annexure-7 was not there. The said judgment came into existence during the pendency of application filed by Jagannath Prasad Srivastava. The proposition of law is well established that during the pendency of a case subsequent events which have bearing on the controversy in dispute can be placed before the Court and in this respect additional evidence can be adduced. Although prayer for admitting additional evidence was rejected by the Additional District Judge, Mr. H. N. Tilhari very properly and fairly stated that the said judgment may be taken into consideration in determining the controversy involved in the writ petition. If Annexure-7 is borne in mind it becomes crystal clear that Radhey Shyam continues to be a tenant. Annexure-7 also indicates that the question of sub-tenancy was not pressed before the Court. The effect of Annexure-7 is that the tenancy of Radhey Shyam subsisted and if his tenancy subsisted the learned Additional District Judge was not right in holding that the shop in question had fallen vacant. Under Annexure-7 decree for arrears of rent was passed and decree for ejectment was refused. If the tenancy of Radhey Shyam subsists and the case of sub-tenancy of Hari Shanker is decided in the negative, question of vacancy does not arise and the application for release is not entertainable by the Rent Control and Eviction Officer. Mr. H. S. Sahai contended that the decree in Suit No. 14 of 1981 operate as res-judicata. The question of sub tenancy was put in issue in the suit but no evidence was led by Jagannath Prasad Srivastava on that aspect and issue no. 1, whether Hari Shanker was sub-tenant of the shop in question, was answered in the negative. Mr. H. N. Tilhari controverted this argument by saying that principle of res-judicata will not apply in this case as the court which decided Annexure-7 was a Court of Small Causes and the Additional District Judge while deciding the revision application exercised powers under U. P. Act No. XIII of 1972. He strenuously submitted that since the two authorities were different having different jurisdiction the finding recorded by one will not be res-judicata in the other. After having given my anxious consideration to this aspect of the matter, I am of the view that this argument has no merit. The court deciding Annexure-7 had the jurisdiction to decide whether Hari Shanker was a sub-tenant of Radhey Shyam or not. Such a question could be decided by the Judge Small Causes. The proposition of law is well established that a plea of res-judicata on general principles can be successfully taken in respect of judgments of courts of competent jurisdiction. In my opinion this principle will apply in the instant case and since the question of sub-tenancy has been decided in the negative by Annexure-7 and the suit for arrears of rent has been decreed, it follows that Radhey Shyam is the tenant of the accommodation in suit and Hari Shanker has not been proved to be his sub-tenant. If tenancy of Radhey Shyam subsists and Hari Shanker is not held to be a sub-tenant then there is no vacancy of the accommodation and the application for release Annexure-1 is not maintainable.
(3.) MR. H. N. Tilhari submitted that the order passed by the Additional District Judge is based upon appreciation of evidence and the court has examined the affidavits filed by Bajrang Singh, Jagdish Prasad and Ramesh Chandra who have stated that Radhey Shyam has left the shop in question and Hari Shanker carries on business in the shop in dispute. He has also relied upon the report of the Inspector paper no. 13 which indicates that Radhey Shyam is not in possession of the shop but Hari Shanker is in possession. By reference to the affidavits and the report of the Inspector it is contended by MR. H. N. Tilhari that the finding that the accommodation is vacant is based upon appreciation of oral evidence and hence this court may not interfere with the finding of fact so arrived at. In my opinion, it it not possible to accept this line of argument pressed by MR. H. N. Tilhari. If Radhey Shyam is the tenant and Hari Shanker has been held not to be a sub-tenant the tenancy subsists. All that is clear from the affidavits on record is that Hari Shanker manages the shop and Radhey Shyam is not to be seen there. This position is consistent with Radhey Shyam being a tenant and Hari Shanker an employee. It is a matter of common knowledge that persons carry on business at several places in shops of which they are tenants. It is not possible for one particular person to be present at shops at several places and if a particular businessman has a shop at more than one places he has to employ persons who would look after management of the business at one of the shops. In my view the mere fact that Hari Shanker is generally found at the shop in question does not necessarily establish that Radhey Shyam has nothing to do with the business. If Radhey Shyam is a tenant and his tenancy subsists as is clear from Annexure-7 he is justified in employing persons to carry on business at places more than one. In my opinion the affidavits and the report of the Inspector do not establish that the tenancy of Radhey Shyam has come to an end. The presence of Hari Shanker in the shop is consistent with Radhey Shyam being the tenant and since Radhey Shyam carries on business at Kanpur and Unnao he would well within his rights to manage his business at Unnao through an employee. Radhey Shyam has stated that Hari Shanker is his employee. By reference to section 12 (2) of the Act Mr. H. N. Tilhari contended that where a tenant of non-residential building, while carrying on business in the building admits a person who is not a member of his family, as a partner or a new partner, the tenant shall be deemed to have ceased to occupy the building. The learned counsel submits that there is nothing on record to indicate that Hari Shanker is a member of the family of Radhey Shyam within the meaning of section 3 (g) of the Act and if such a person is found to be in possession of the shop then it should be taken that tenant has ceased to occupy the building. The argument of Mr. H. N. Tilhari appears to have no merit. The fact that in the instant case Radhey Shyam is a tenant as is clear from Annexure-7 to the writ petition, and there is nothing on record to indicate that his tenancy has been brought to an end. Radhey Shyam is carrying on business with the assistance of Hari Shanker who is his employee. There is nothing to indicate that there was any partnership between Radhey Shyam and Hari Shanker. In this background the accommodation would be deemed to be vacant only when the tenancy of Radhey Shyam has come to an end. If the tenancy subsists and there is no evidence of partnership, the accommodation will not be deemed to be vacant within the meaning of section 12 (2) of the Act. If the accommodation is not vacant as aforesaid no occasion arises for release of the accommodation under section 16 of the Act. In such an eventuality section 16 of the Act will not apply and the correct section under which relief may be claimed by Jagannath Prasad Srivastava is section 21 of the Act. The said section provides for proceedings for release of a building in occupation of a tenant. The said section provides that the Prescribed Authority may, on an application of the landlord in that behalf, order eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that the building is bonafide required either in its existing form or after demolition by himself or any member of his family, or any person for whose benefit it is held by him. The application in question in this case Annexure-1 is an application under section 16 of the Act. Under the said section it is not possible for a landlord to get the accommodation released because section 16 of the Act postulates the existence of a vacant building. I have already held that in view of the subsistance of tenancy of Radhey Shyam it cannot be said that the accommodation is vacant. If the accommodation is not vacant, section 16 of the Act has no application. The only provision under which an accommodation may be released in favour of a landlord is section 21 of the Act when he satisfies the Prescribed Authority that the building is bonafide needed either in its existing form or after demolition by the landlord for occupation by himself or any member of his family. Under the said provision this release can be claimed against a tenant.;