- (1.) R. K. Rastogi, J. This is a writ petition for quashing the judgment and decree dated 19. 12. 2003 passed by Sri Subodh Kumar, then IInd Additional District Judge, Raebareilly, in S. C. C. Revision No. 27/2003, Sardar Harvindar Singh and others v. Farhat Sultana and the judgment and decree dated 2. 8. 2003, passed by Sri Ezaz Ahmad Ansari, then learned Judge Small Causes Court, (Civil Judge, (Senior Division), Raebareilly), in S. C. C. Suit No. 6/2001, Farhat Sultana v. Harvinder Singh and others.
(2.) THE facts relevant for disposal of this writ petition are that the re spondent No. 3 of the present writ petition had filed the aforesaid S. C. C. Suit No. 6/2001, in the Court of J. S. C. C. (Civil Judge, Senior Division), Raebareli, against the petitioners for their eviction from Shop No. 152/1. Rashid Market, Kaiparganj, Raebareilly and for recovery of arrears of rent and mesne profits with these allegations that she is owner/landlady of the above shop and the shop was let out to the defendant-petitioners No. 1 and 2 at the rent of Rs. 911. 95 paise per month. THE shop is governed by the provisions of U. P. Act No. 13 of 1972. THE defendants No. 1 and 2 (present petitioners No. 1 and 2), had paid rent of the above shop for the period upto August, 2000, only and there after they stopped its payment. THEy also sublet the shop to defendant No. 3 (petitioner No. 3 in the present writ petition) in October, 2000, for running hotel business and defendant No. 3 was running a business there in the name of 'bara Sahab Veg Non Veg Fast Food. " Defendants No. 1 and 2 had thus violated the terms and conditions of the contract of tenancy. Hence the plaintiff sent a notice to defendants No. 1 and 2 through her Counsel on 8. 1. 2001 by registered post as well as under certificate of posting terminating their tenancy. Defendants No. 1 and 2 received the notice but they did not pay the amount of arrears of rent and thus committed default in its payment and the amount of Rs. 5,623. 68 paise was due from them. THE plaintiff, therefore, filed the suit for obtaining possession of the shop and for recovery of arrears of rent and mesne profits. All the defendants contested the suit. They filed a joint written state ment in which they pleaded that all the defendants are real brothers and members of the joint Sikh family and at present they are running a business in the name of 'pinki Sari Centre" in the disputed shop. Prior to it they had orig inally started business in the shop in the name of "guru Nanak Emporium", and thereafter a business of 'fast Food' in the name of "bara Sahab" was being run, but all these businesses were being run by the joint family of the defendants and no body was sub-tenant. The shop was never sublet to defendant No. 3. Rent of the shop was being paid to the plaintiff at the rate of Rs. 911. 95 paise per month but the plaintiff did not regularly issue rent receipts. In the month of September, 2000. Mohd. Naushad, husband of the plaintiff demanded rent at rate of Rs. 1,500 per month. Even then the defendants continued to pay the rent to the plaintiff and her husband by hand as usual. Then the plaintiff sent a no tice to them on 8. 1. 2001. Then the defendants approached the plaintiff to settle the dispute. At that time the plaintiff and her husband told them that they had some family dispute which shall be settled soon and so the defendants should not be worried, hence the defendants did not take any legal action. When the defendant No. 3 went to the plaintiff in May, 2001 to pay rent for the month of April, 2001 and demanded receipt, the plaintiff told him that she would issue rent receipts only after settlement of family dispute. The defen dants again insisted on 20. 5. 2001 for issuing rent receipts. Then the plaintiff and her husband asked them to vacate the shop. Then the defendants sent a re ply to the plaintiff's notice by registered post and also sent the rent for the month of April, 2001 by money order. This reply was received by the plaintiff but she refused to take money order, and thereafter the defendants received summons of the suit. Then the defendants with a view to avoid any complica tions deposited the entire rent from September, 2000 alongwith necessary costs of the suit and they have been regularly depositing rent. The shop was never sub-let and so the suit is not maintainable. Learned J. S. C. C. , held that the shop had been let out to defendants No. 1 and 2 only on rent of Rs. 911. 95 paise per month. He further held that the de fendants No. 1 and 2 had sub-let the shop to the defendant No. 3. He also held that no amount of rent was due from the defendants as the entire amount had either been paid to the plaintiff or had been deposited in the Court and so the plaintiff was not entitled to recover any amount as rent from the defendants. However, in view of the finding that the defendants No. 1 and 2 had sub-let the shop to the defendant No. 3, he was of the view that the defendants were liable to be evicted from the disputed shop on the ground of sub-letting. He, therefore, decreed the suit for eviction of the defendants from the disputed shop vide judgment and decree dated 2. 8. 2003 and directed them to vacate the shop within a period of two months from the date of the judgment. Then the de fendants filed J. S. C. C. Revision No. 27/2003 in the Court of District Judge, Raebareilly. The revision was heard and decided by Sri Subodh Kumar, IInd Additional District Judge, Raebareilly vide judgment and decree dated 19. 12. 2003, confirming the finding of the Judge Small Causes Court on the point of sub-letting and dismissing the revision. Aggrieved against the above said judgments and decrees the defendant-petitioners have filed this writ petition.
(3.) I have heard the learned Counsel for the parties and have perused the record. The only point that arises for determination in this writ petition is whether the defendants No. 1 and 2 have sub-let the shop to the defendant No. 3 or not? Learned Counsel for the petitioners submitted that in order to prove sub-tenancy it must be established by cogent evidence that there existed rela tionship of lessor and lessee between the original tenant and the sub-tenant and possession of the premises in question had been parted by the tenant in favour of sub-tenant exclusively and there was payment of rent by sub-tenant to the orig inal tenant. He submitted that in the present case there was no evidence to prove these essentials of sub-tenancy and so the learned Trial Court as well as Revisional Court erred in law by holding sub-tenancy. He further submitted that the finding of both the Courts below are perverse on the point of sub-ten ancy and so they should be set aside by this Court.;