- (1.) S. U. Khan, J. Heard Sri A. N. Sinha, learned Counsel for the petitioner and Sri V. K. S. Chaudhary learned Senior Counsel assisted by Sri V. C. Nayak, learned Counsel for the respondents, legal representatives of deceased respondent No. 3 Sri Har Narain Vyas and Shrimati Hemant Vyas widow of Late Har Narain Vyas, who filed impleadment application.
(2.) THIS writ petition is directed against the order dated 5-9- 2002 passed by respondent No. 1 declaring vacancy of the accommodation in dispute and order dated 30-9-2002 releasing the accommodation in dispute in favour of landlord under Section 16 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'act' ). Accommodation in dispute is situate at first floor consisting of two rooms, latrine and bathroom. There is one more portion in the accommodation in dispute, which is described as Kitchen by the landlord and as storeroom by the tenant-petitioner. Accommodation in dispute is numbered as 24/92 and is situate at Patkapur, Kanpur Nagar. This writ petition was dismissed in default on 29-11-2005. Application for setting aside the said order was filed on 1-5- 2006 and the writ petition was restored to its original number. On 1-5-2006 the petitioner had been dispossessed. On restoration application on 4-5-2006, an order was passed staying the eviction of the petitioner till 19-5-2006 if he had not already been evicted. Petitioner filed an application on 18-5-2006 alongwith affidavit. In paragraphs 4 and 8 of the said affidavit it was stated that on 1-5-2006 partial ejectment took place behind the back of the petitioner. However, extent of partial possession and partial dispossession was not given. During arguments, learned Counsel for the landlord stated that complete possession had been taken on 1-5-2006. Proceedings before Rent Control and Eviction Officer were initiated on the allotment application of respondent No. 2 Ram Lakhan. Thereafter release application was also filed by the landlord. In this writ petition, respondent No. 3 was described as follows: " (3) Sri Har Narain Vyas adult son of Late Laxmi Narain Vyas (unsound mind), through Shrimati Hemant Vyas, adult wife of Sri Har Narain Vyas, resident of Premises No. 26/32 Patkpur, Kanpur Nagar. "
(3.) RESPONDENT No. 4 in the writ petition is Siddharth Vyas son of Har Narain Vyas. Har Narain Vyas died in June 2004 leaving behind his wife Shrimati Hemant Vyas, his son Siddharth Vyas and four other children as his heir and legal representative. Substitution application was filed by tenant-petitioner on 10-11-2005. In Para 3 of the affidavit filed in support of substitution application it was mentioned that Sri Har Narain Vyas was of unsound mind and represented by his wife Shrimati Hemant Vyas, who was arrayed as opposite party alongwith her one son Siddharth Vyas, hence only they - heirs of Har Narain Vyas should be substituted at his place. Sri V. C. Nayak learned Counsel has filed Vakalatnama on behalf of the other four proposed heirs. Sri Nayak has also filed an impleadment application on behalf of Shrimati Hemant Vyas. Learned Counsel for the landlord has argued that Shrimati Hemant Vyas should have been sought to be substituted independently. Absolutely no difference will be made in either of the two contingencies, i. e. whether Shrimati Hemant Vyas is independently added as one of the legal representatives of Har Narain Vyas or she is treated to be already impleaded as respondent No. 3 in the writ petition. Accordingly, substitution application as well as impleadment applications bearing number 131783 of 2006 are allowed. It may be mentioned that Shrimati Hemant Vyas in her application had also raised five preliminary objections. The matter was registered before Rent Control and Eviction Officer/city Magistrate, Kanpur Nagar as case No. 53 of 2000, Ram Lakhan v. Ravi Nath Misra. Rent Control and Eviction Officer through order dated 5-9-2002 declared the vacancy holding that the accommodation in dispute was let out for residential purposes with effect from 1-6-1981 and was assessed for the house tax for the first time in 1983. Rent Control and Eviction Officer further held that wife of the tenant-petitioner had purchased another residential house on 6-7-1987 bearing number 198 situate at Safipur-II, Kanpur Nagar. Rent Control and Eviction Officer ultimately held that in view of purchase of the house by wife of the tenant, vacancy came in to existence in view of Section 12 (3) of the Act, which is quoted below: " (3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy: Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. ";