Rakesh Tiwari - (1.) -Heard counsel for the parties and perused the record.
(2.) THE petitioner is tenant in the disputed shop situated in House No. 107/79A Jawahar Nagar, Kanpur owned by Sri Dhani Ram Dubey on the basis of a Will executed by his wife in his favour. Sri Dhani Ram Dubey was survived by his two sons namely, Mahendra Nath Dubey and Kailash Nath Dubey. He had also executed a registered Will dated 10.3.1997 in favour of his grandson Rishabh Kumar Dubey S/o Kailesh Nath Dubey who according to the terms of the said registered Will acquired the ownership and status of the landlord of the tenement. A partition Suit No. 1500 of 2003, is also to be pending between the two sons of Sri Dhani Ram Dubey, i.e., Kailash Nath Dubey and Mahendra Nath Dubey. After inheriting the tenanted accommodation in dispute Rishabh Kumar Dubey gave a notice to the petitioner claiming himself to be landlord on the basis of Will dated 10.3.1997 executed by Sri Dhani Ram demanding arrears of rent. The petitioner replied to the notice denying the title and claim of Rishabh Kumar Dubey as landlord. He informed that the rent was being paid to Mahendra Nath Dubey son of Sri Dhani Ram Dubey. J.S.C.C. Suit No. 307 of 2003, was filed by Rishabh Kumar Dubey for eviction and recovery of arrears of rent as well as damages against the petitioner who filed his written statement denying the claim of the respondent on the ground that the rent of the shop in dispute is being paid to Sri Mahendra Kumar Dubey regularly on the oral instructions given by Sri Dhani Ram Dubey in his life time.
(3.) THE relevant extract of paragraph 12 of the W.S. filed by the tenant copy of which is appended with the supplementary-affidavit is given here-in-below. "12. That the defendant is very old tenant and was paying the rent to the plaintiffs' grandfather late Dhani Ram Dubey. Late Dhani Ram Dubey has instructed the defendant to pay the rent of the shop in question to his son Mahendra Nath Dubey. According to his instructions the answering defendant is paying rent to Mahendra Nath Dubey after his death the defendant had paid the rent upto December, 2004. Consequently no rent is due upon the defendant as alleged in the plaint. One shop is in possession of the father of the plaintiff Shri Kailash Nath Dubey. He never raised any objection despite the knowledge of the fact that the defendant is paying rent to Mahendra Nath Dubey." The Judge Small Causes Court, Kanpur Nagar vide order dated 5.8.2006, decreed the suit in favour of respondent Rishabh Kumar Dubey holding the tenant petitioner defaulter in payment of rent and further observed that the written statement was not signed by the petitioner.;