R. C. Deo Sharma, J. - (1.) THE opposite-party No. 2 Jagdish Prasad Bhargava claiming to be owner of certain premises situate in Aminabad, Lucknow, made an application under section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 against the petitioner M/s. Baluna Commercial College, Lucknow, on the allegations that the landlord wanted the premises for his own use and for the use of his son whom he wanted to settle in the business. THE contention was that the tenant Baluna Commercial College had other branches to which it could shift its students who come to learn typing in the said college. It was also alleged that its partner Prithvi Nath Bhargava had started using part of the premises as residence for the last six months although he had a three-storey building in the city which he had been using as his residence also and which he could use even now. THE claim was resisted by the tenant on the ground that the premises in question had always been used partly for residential and partly for nonresidential purposes. It was contended that the premises were originally let out to late S. N. Bhargava, father of the said P. N. Bhargava about 50 years back by the then landlord. THE opposite party no. 2 was said to have purchased the premises later but the tenancy continued as usual. THE further contention was that late S. N. Bhargava left three sons, namely, P. N. Bhargava, S. N. Bhargava and D. N. Bhargava. Out of these three sons Surendra Nath Bhargava was said to to running a typing school at Faizabad Road, Lucknow. THE other son D. N. Bhargava was running a similar school at Victoria Street, Lucknow, and P. N. Bhargava through whom Baluna Commercial College was (sic) running this Commercial College for typing classes in the disputed premises which was partly being used as his residence as well. THE genuineness of the need of landlord was denied and it was pleaded that greater hardship would result to the College if it was evicted.
(2.) ON a consideration of the entire matter the Presiding Authority allowed the application under section 21 of the Act, vide judgment Annexure No. 3 to the petition. Feeling aggrieved the tenant-College preferred an appeal which is still pending before the learned IV Additional District Judge, Lucknow. During pendency of the appeal an application for amendment of the written statement was made by the appellant-tenant. Another similar application was made to amend the memorandum of appeal. These applications are Annexure 4. Objection were filed on behalf of the landlord respondent to challenge the proposed amendment. The learned Additional District Judge by his order dated 30-9-1982 (Annexure-No. 5) rejected the amendment applications on the ground that they were moved with mala fide intentions to delay the proceedings and if allowed would have the effect of nullifying the admissions already made by the tenant in its written statement. It is against this order that the present petition under Article 226 of the Constitution has been filed praying for a writ in the nature of certiorari quashing the aforesaid order dated 30-9-1982 and directing the learned Additional District Judge to allow the amendment as prayed, vide application Annexure No. 4. The main contention of the petitioner was that the premises in question had been let out to late Sri S. N. Bhargava who left three sons besides a widow etc., and consequently they were necessary parties in the eviction proceedings. This legal plea was said to have been omitted by inadvertence and lack of proper advice from the counsel although relevant facts were said to have been pleaded in the written statement. Another contention raised was that Baluna Commercial College was not a legal entity and could not be used as such nor could be given the status of a tenant. Some document were also said to have been wrongly relied upon by the learned Additional District Judge while rejecting the amendment applications. It has not been denied that the opposite-party No. 2 is the landlord and he had made an application under Section 21 of U. P. Act No. XIII of 1972 against the tenant M/s. Baluna Commercial College. The application is Annexure No. 1 and clearly indicates that it was made against M/s. Baluna Commercial College, Aminabad, Lucknow, through its partner Sri Prithvi Nath Bhargava. A clear averment was made in this application to the effect that the opposite-party was a tenant at Rs. 277.00 per month as rent. It was also contended in that application that the said opposite-party was having two well settled branches at Victoria Street and Faizabad Road, Lucknow, and since P. N. Bhargava had started residing in a portion of the premises in dispute it appeared that he did not require the premises for running the typing classes. Copy of the written statement filed in the proceedings is contained in Annexure No. 2. Para 1 of the application to the effect that M/s. Baluna Commercial College was a tenant was admitted though subject to additional pleas. In the additional pleas undoubtedly it was stated that the premises were let out by the erstwhile landlord to late S. N. Bhargava 50 years back, and that the said S. N. Bhargava died leaving three sons and a widow. It was however, stated in paras 27 and 28 of the written statement that the late S. N. Bhargava had been running the typing school under the name and style of "Baluna Commercial College " and after his death two of his sons were running typing schools at Faizabad Road and Victoria Street, Lucknow, while the third son P. N. Bhargava through whom the tenant was sued was running the typing school in the disputed premises. In para 32 of that written statement it was mentioned that the opposite-party, namely, M/s. Baluna Commercial College had established the typing school in the disputed premises 50 years back and a portion thereof was being used by P. N. Bhargava who was running the said school. In Para 37 it was stated that the family of P. N. Bhargava will be ruined and thrown on the street and the established school shall also be ruined if the application under section 21 was allowed. Para 38 mentioned that the said P. N Bhargava who was running the typing school bad no other source of income except the income from this school and, therefore, if the opposite-party, namely, the college was evicted P. N. Bhargava and his family members would suffer irreparable loss.
(3.) LEARNED counsel for the opposite-party landlord placing reliance on the aforesaid averments contended that the amendment application was rightly rejected by the court below as permitting the amendment to be made would have the effect of wiping out the admissions made by P. N. Bhargava and Baluna Commercial College to the effect that it was P. N. Bhargava alone who was concerned with the running of the College whereas his other two brothers were running similar other typing schools elsewhere in the city. It is also apparent that no plea whatsoever was taken in the written statement to the effect that there were any other persons interested in the college or in the tenancy who were necessary parties to these proceedings. For the first time during the pendency of the appeal it was sought to be raised that other heirs of late S. N. Bhargava were necessary parties and in their absence the application was not maintainable. Petitioner's learned counsel has laid emphasis on the point that neither M/s. Baluna Commercial College could have the status of a tenant in the eyes of law nor could it be sued as such thus consequently all the heris of late S. N. Bhargava should have been impleaded. It will appear from the averments made in the application and in the written statement referred to earlier that from the very beginning the landlord's contention was that M/s. Baluna Commercial College was the tenant and this fact had not been denied except making an averment that the original landlord had let out the premises to late S N. Bhargava 50 years back. The fact, however, remains that even though the contract of tenancy might have taken place with late S. N. Bhargava yet it was clearly for M/s. Baluna Commercial College. The purpose of the Jease was running of the typing school under the aforesaid name and style of "Baluna Commercial College." None of the other two brothers of P. N. Bhargava came forward to be made parties to the proceedings before the Prescribed Authority and naturally in the light of the averments made in the written statement they had no concern with the premises in dispute or the College as they were running their separate institutions at other two places in the city. It has not been denied that the rent was paid in the name of M/s. Baluna Commercial College and reference to that effect had been made in the judgment (Annexure No. 5). Learned counsel for the petitioner contended that notice should not have been taken of certain rent receipts sought to be filed by the landlord but the judgment does not mention that any rent receipts (not on record) had been looked into. What has been mentioned is that the objections filed before the learned Prescribed Authority, vide paper No. C-30, by P. N. Bhargava clearly contained an admission that he was running the typing school under the name and style of " Baluna Commercial College " and that the other two brothers were running typing schools at Faizabad Road and Victoria Street. Reference has been made to paras 2 and 3 of the aforesaid objections contained in paper No. C-3 which must have been before the appellate court in connection with the appeal against the order of the Prescribed Authority. In para-3 of the said objections P. N. Bhargava was said to have stated that the landlord had been accepting rent from him with the knowledge that he alone was carrying on business in his own right in the disputed premises. It has not been denied by the petitioner that these averments were contained in his objection paper No. C-30.;