S.U. Khan, J. - (1.) HEARD learned Counsel for the parties. This is landlords' writ petition arising out of suit for eviction filed by them against respondent Nos. 3 and 4/defendant Nos. 1 and 2 - -Om Prakash and Gyan Prakash who are real brothers for eviction on the ground of default, subletting and material alterations and for recovery of arrears of rent. It was alleged in the plaint that Om Prakash was the tenant who had sublet the shop in dispute to Gyan Prakash. The other co -owners were impleaded as defendants 3 to 7 in the suit. They are respondents 5 to 9 in the writ petition. The rate of rent is Rs. 84/ - per month. According to the plaintiff rent had not been paid since July 1976. Suit was registered as S.C.C. Suit No. 70 of 1993 on the file of J.S.C.C., Gorakhpur. In the suit both Om Prakash as well as his brother Gyan Prakash filed separate written statements taking up distinct, contradictory pleas.
(2.) REGARDING tenancy Om Prakash stated that he was the tenant and as he had become blind hence initially he had kept his father as his Manager to help him in the business and after the death of his father (which occurred in October 1999) he appointed his brother Gyan Prakash as Manager of the business. Om Prakash also pleaded that earlier release application under section 21 of U.P. Act No. 13 of 1972 was filed against him by the landlords which was dismissed and appeal filed against the said dismissal order was also dismissed. It was also pleaded that he (Om Prakash) deposited the rent under section 30 of the Act in Misc. Case No. 82 of 1978 from July 1976 to April 1978 and thereafter till July 1980 and thereafter Nem Chandra one of the landlords (who was plaintiff No. 2 and had died during pendency of suit) asked him to pay the rent directly hence since August 1980 he started paying rent to Nem Chandra against receipt. It was also stated that Om Prakash had paid rent to Nem Chandra till May 1983. Om Prakash also pleaded that until July 1999 he had no information of pendency of the suit and in July 1999 Gyan Prakash told him about the pendency of the suit and also told him that earlier suit had been decreed ex -parte hence in order to get the said ex -parte decree set aside Gyan Prakash had deposited the rent from 1990 to 1993 (defendant No. 2 Gyan Prakash had deposited Rs. 8780/ - in compliance of provisions of section 17 Provincial Small Causes Court Act in May and October 1998). It was also stated in the written statement by Om Prakash that due to his blindness he was unable to search the receipts issued by Nem Chandra. He also pleaded that neither he received any notice of the plaintiff nor he sent any reply thereto (plaintiff had stated that to his notice defendant No. 1 Om Prakash had sent wrong reply through Jitendra Mohan Sinha, Advocate). It was also pleaded that on the date of the notice no rent was due against Om Prakash hence suit was bad. Defendant No. 2 Gyan Prakash filed separate written statement. He pleaded that his father Mangal Prasad was the tenant and he and Om Prakash being sons of Mangal Prasad were doing business from the shop in dispute. It was further pleaded that due to old age father completely stopped participating in the business and Om Prakash also became blind hence he (Gyan Prakash) alone was doing business from the shop in dispute. Through amendment it was pleaded by Gyan Prakash that even if it was found that his brother Om Prakash was the tenant no subletting could be said to have taken place as he was real brother of Om Prakash. He pleaded that rent had been paid but no receipt had been issued.
(3.) TRIAL Court found that since July, 1980 no rent had been paid.;