- (1.)This is a tenant's second appeal from the decree of the Civil Judge of Roorkee at Saharanpur affirming that of the City Munsif, Saharanpur for the ejectment of the Appellant from the shop.
(2.)The Plaintiff Respondent Smt. Kanak Mala is the owner and landlord of this shop. She alleged in her plaint that she let out this shop to one Sakoshal Prasad Jain who sub let it to the Appellant Sri Uttam Chand without her permission or consent; that subsequently there was a dispute between the tenant and the sub-tenant (the Appellant) who filed a suit against the tenant for an injunction to restrain him from interfering with his (the Appellant's) possession; that the Plaintiff was impleaded as a proforma Defendant in that suit but no relief was claimed against her; that the Plaintiff did not appear in that suit as she was not concerned with the dispute between her tenant and the sub-tenant; that in that suit the court held that there was an agreement between the tenant and the sub-tenant (the Appellant in the present appeal) and issued an injunction to restrain the tenant from interfering with the possession of the Appellant; that the Plaintiff came to know of the creation of the sub-tenancy for the first time she received the summons in the suit; that her tenant had created a sub-tenancy without her consent and therefore she had terminated the tenancy and asked the tenant and the subtenant (the Appellant) to quit but the Appellant did not comply with this demand; hence the suit for ejectment.
(3.)The tenant Sakoshal Prasad Jain did not appear in the suit but the Appellant Uttam Chand contested it. He admitted that there was an agreement of sub-tenancy between him and Sakoshal Prasad Jain but asserted that this agreement was made with the consent of the Plaintiff. He also pleaded in the alternative that the decision in the earlier suit operated as res judicata in the present suit.