Sanjay Misra, J. - (1.) HEARD Sri Iqbal Ahmad, learned Counsel for the petitioners and Sri K.K. Tripathi, learned Counsel appearing on behalf of the respondents. By means of this writ petition, the petitioners seek to challenge the judgment and order dated 26.5.1994 passed by the Rent Control and Eviction Officer, Kanpur Nagar in Case No. 46 of 1994. By means of the aforesaid order the application made by the petitioners landlords under section 16(1) of U.P. Act No. XIII of 1972 has been rejected and it has been held that no vacancy existed in the shop in question.
(2.) THE facts of the case as have been disclosed in the writ petition are that the petitioners had made an application for release of the accommodation in their favour. A report of the Rent Control Inspector was obtained which indicated that after the death of Hafizullah Khan, the original tenant his sons, respondent Nos. 2 to 5 became co -tenant of the shop in dispute. It is contended that Nizamuddin respondent No. 3 is running a Purchoon business in the shop, in dispute. However, it was the case of the landlords that the respondent No. 6 Mohd. Ilyas was in occupation of the shop in question in as much as he was found to be in possession of the shop and he has stated before the Rent Control Inspector that, he was paying a sum of Rs. 10/ - per day to the tenant. Upon these facts it has been stated that subletting of the accommodation in question has been sufficiently established and the petitioners were not required to prove anything further. An objection was filed on behalf of respondent Nos. 2 to 5 before the Rent Control and Eviction Officer. In the aforesaid objection, they contended that Mohd. Ilyas was a servant who was working in the hotel which was being run by the original tenant. After the death of the original tenant, his son namely Nizamuddin is running the business. As such there was no subletting.
(3.) LEARNED Counsel for the petitioner has placed reliance on the decision in the case of Karam Chand v. Additional District Judge, Moradabad and others : 1988 (14) ALR 781, and has contended that once a tenant permits any other person not being a member of his family to occupy the premises then the landlord is not required to establish the case of subletting. It has been stated that once it is found that the person has been permitted to occupy a portion of the premises then section 12(1)(b) of the Act would be attracted and the premises would be deemed to be vacant. Learned Counsel for the petitioner has also placed reliance upon the decision in the case of Gur Dayal Khanna and others v. Smt. Malti Devi and others : 1992 (20) ALR 1138, and has contended that explanation to section 25 contemplates raising of a presumption of fact regarding subletting of the building either as a whole or any part upon the tenant censing to occupy the building or any part thereof within the meaning of the provisions contained in section 12(1)(b) of the Act. Learned Counsel for the petitioner has contended that the impugned order is illegal in as much as it was sufficiently established on record by the statement of respondent No. 6 Mohd. Ilyas that he was occupying the premises and since he was not a family member, therefore, the Rent Control and Eviction Officer has committed illegality, It, is contended by the learned Counsel for the petitioner that the case set up by respondent Nos. 2 to 5 was self contradictory hence he contended that objection filed by the respondent Nos. 2 to 5 was not worth to be considered and relied upon.;