D.N.Jha, J. - (1.) The petitioner, Hira Singh, has directed this petition under Art. 226 of the Constitution praying for quashing of the order dated 12-8-78 passed by the 4th Additional District Judge, Lucknow, contained in Annexure 12.
(2.) Briefly stating the facts are that the petitioner Hira Singh is carrying on his restaurant business in shop No. 39 situate on the ground floor of Kanhaiya Lal Dharamshala Building, Faizabad Road, Daliganj, Lucknow. It is the case of opposite party Sardar Avtar Singh that originally he had been tenanted shop Nos. 38 and 39 by the landlord Kanhaiya Lal Dharamshala Trust. In part of this shop No. 38 Sardar Avtar Singh had been carrying on his vegetable business while shop No. 39 had been sublet to the petitioner. It is not disputed that for over 12 years there was no dispute between the petitioner and opposite party No. 3 Sardar Avtar Singh. On 14-9-1976 an application was moved by the petitioner under Section 14 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter to be referred to as the Act) for regularisation of his tenancy. During the pendency of this application opposite party No. 3 Sardar Avtar Singh moved an application under Section 21 of the Act for release of the premises in the occupation of the petitioner. This application was confined with respect to shop No. 39. The release application was contested by the petitioner and the Prescribed Authority by his order dated 31-3-1978 rejected the application holding that the need of opposite party No. 3 Sardar Avtar Singh was not genuine and pressing as compared to that of the petitioner. Sardar Avtar Singh feeling aggrieved by the order went up in appeal which came up for hearing before the 4th Additional District Judge, Lucknow. It is worthwhile to mention that a cross-objection had also been preferred by the petitioner before the appellate authority. The 4th Additional District Judge, Lucknow, by his order dated 12-8-1978 reversed the order passed by the Prescribed Authority and allowed the appeal. This order is Annexure 12. It is in these circumstances that the petitioner has come up before this Court impugning the order passed by the 4th Additional District Judge, Lucknow. The petition has been resisted on behalf of Sardar Avtar Singh and a counter-affidavit has also been riled. It is asserted that the order impugned in the writ petition does not suffer from any manifest error and is concluded by rank findings of fact recorded on appreciation of evidence and calls for no interference by this Court in exercise of power under Art. 226 of the Constitution.
(3.) I have heard the learned counsel for the parties and gone through the various materials brought on the record of this case. The learned counsel for the petitioner argued that he had preferred a cross-objection against the finding of the Prescribed Authority rejecting his plea that he was not a sub-tenant but a tenant of the premises in dispute. He argued that since he was a tenant of the building owned by Kanhaiya Lal Dharamshala Trust, hence the application under Section 21 moved by opposite party No. 3 Sardar Avtar Singh was not maintainable. In reply to this argument the learned counsel for the opposite party argued that the dispute was concluded by rank findings of fact recorded by the two Courts below and it was not for this Court to re-sift the evidence. In a nutshell the argument is that howsoever erroneous the findings of fact may be they cannot be interfered with by this Court in exercise of powers under Art. 226 of the Constitution There is no doubt so far as the legal proposition has been propounded by the learned counsel for the opposite party but, the question which needs consideration is whether the findings recorded by the Courts are based on evidence or record or are based on extraneous consideration or while disposing of the dispute the Courts below exceed the jurisdiction or failed to exercise jurisdiction vested in them. It, therefore, follows that unless the facts are not scrutinised it would not be safe to accept the findings recorded by the Courts below unless it is shown that the findings reached on the application of evidence arc nothing but an irresistible conclusion. In this petition the entire material has been placed so far as this plea of the petitioner is concerned. There is no doubt that an application had been moved for regularisation of the tenancy. It is also not in dispute that the shop had been given possession of to the petitioner by opposite party No. 3. It is also clear from the averments that the rent prior to the moving of the application under Section 14 of the Act was being paid by the petitioner to opposite party No. 3. This clearly indicated that the petitioner was admitted as a sub-tenant. I do not find much substance in the alternative plea set up by the petitioner that it was a case of joint tenancy over the shop in dispute. There is no material before this Court from which it can be legitimately concluded that the petitioner had entered into joint tenancy with opposite party No. 3 with respect to shop Nos. 38 and 39. Both these shops were let out to opposite party No. 3 about 12 years ago according to the averments flowing out from the various assertions made in the affidavits. The question that required serious consideration was regarding the status of the petitioner after the order was passed on 13-4-1977 by the Prescribed Authority on the application moved for regularisation of tenancy. In those proceedings, it is not in dispute, the owner landlord - Kanhaiya Lal Dharamshala Trust was one of the respondents along with opposite party No. 8 Sardar Avtar Singh. The Trust was duly represented through Sri Banarsi Lal after a notice had been served on the Trust. It is also not in dispute that no objections to the application had been filed on behalf of the Trust. Objections had been filed by Sardar Avtar Singh alone. The copy of the exact objections is not before this Court but it is evident that a dispute had been raised with respect to part of the tenancy of shop No. 38 and the whole of the tenancy relating to shop No. 39. The order of the Prescribed Authority dated 13-4-1977 is also on record and is Annexure 4 (4). In this order it has been observed that there was no dispute so far as shop No. 39 was concerned and the petitioner was the tenant of the same. So far as shop No. 38 was concerned there was a dispute. The Prescribed Authority felt that there was no necessity for separate orders and it was also observed that so far as proceedings under Section 2l of the Act were concerned it had no relation with the proceedings under Section 14 of the Act. It has been asserted in the reply to the application under Section 21 that after the order passed by the Prescribed Authority with respect to his application for regularisation of tenancy the landlord i.e. Kanhaiya Lal Dharamshala Trust refused to accept the rent and it was deposited in the Court of Munsif South, Lucknow, (vide Misc. Case No. 130 of 1977). The Prescribed Authority and the learned appellate Court have ignored the relevant evidence and material so far as this aspect of the matter was concerned. The Prescribed Authority was swayed away by reason of fact that certain rent receipts had been filed by Sardar Avtar Singh which related to the rent of shop Nos. 38 and 39 amounting to Rs. 86/-. None of the authorities examined the period to which these rent receipts related. The fact should have been examined, whether, these rent receipts were of the period subsequent to the order dated 13-4-1977 oi were of the period prior to the order dated 13-4-1977. It is only after 13-4-1977 that the real dispute started when the petitioner was recognised as a tenant. The learned counsel for the opposite party vehemently argued that the words "recognised as tenant" relate to the recognition of the petitioner .as tenant of the chief tenant and not recognition as a tenant-in-chief. Such an inference, in my opinion, cannot be deduced from the wordings of the order. Except with the bald suggestion of the learned counsel for the opposite party there is no relevant material for this Court to record a specific finding regarding the status of the petitioner. There is no assertion in the application under Section 21 moved by the opposite party nor in the counter affidavit that even after the application had been moved on 14-9-1976 under Section 14 of the Act for regularisation of the tenancy the petitioner continued to pay the rent of the premises in dispute to the opposite party. The Courts, therefore, had to decide the question in the light of the evidence that was on the record so far as the status of the petitioner was concerned. The corollary deduced by the Prescribed Authority and the appellate Court on the existence of the rent receipts in possession of the opposite party was not justified and in deciding that question the Courts below failed to exercise jurisdiction vested in them. The maintainability of the application had been pleaded and seriously questioned. The matter could not be decided lightly brushing aside the evidence as has been done by the courts below. I have deliberately avoided recording any finding regarding the exact status of the petitioner as I am inclined to remand the case to the authority for decision afresh because of several legal infirmities discovered in the order, hence am leaving this question also open for decision. "(a) on the ground that his eldest son has become major and is still unemployed and he wants to settle him in the General Merchandise business. (b) He also filed affidavit to this effect. (c) This need of the landlord was not contested by the respondent in any of his affidavits. For the first time it was disclosed in the cross objection that the eldest son of the landlord is employed in Dyer Meakins, Lucknow. (d) Even then the respondent could not dare to file any affidavit in that regard." The learned counsel argued that all these observations are contrary to the evidence on record. As regards observation (a) he referred to the application moved under Section 2l which is attached as Annexure I and maintained that nowhere the word "unemployed" had been used. He also took me through the various averments undoubtedly from which it appears that the word "unemployed" has not been used with respect to his son Gur Charan Singh. The learned counsel for the opposite party in order to repudiate this referred to para 3 of the application and he maintained that from the averments it was clear that Sardar Avtar Singh wanted to establish his son in general merchandise business. If the son was employed then there was no question of his being established in the business. I do not find myself in agreement with the submission because establishing Gur Charan Singh in the general merchandise business would not show that he was sitting unemployed at home. The purpose to start a general merchandise business, therefore, could be either to augment his present earnings by putting his son in this business or secondly it might be to settle him down permanently in business. It is not in dispute that Sardar Avtar Singh had already been doing the business of vegetables in part of shop No. 38. This observation, therefore is based on conjectures and surmises. Likewise, I have also not found any affidavit in support of observation in respect of unemployment of Gur Charan Singh. It is also incorrect that this need of settling down his son in the general merchandise business set up by Sardar Avtar Singh was not contested. The averments followed on in para 4 of the application had been denied by the petitioner. Therefore, it cannot be said that there was no resistance on behalf of the petitioner to the application moved by opposite party Sardar Avtar Singh for release of the shop. The other observation that for the first time the plea regarding the son being in service with Dyer Meakin was set up in cross objection is also incorrect and contrary to the evidence on record. For the first time, it appears that this assertion of Gur Charan Singh being in service was made in para 8 of the affidavit dated 17-2-1978, copy of which is Annexure 8. This affidavit was filed before the Prescribed Authority, hence thus observation is also incorrect. The next observation that the respondent could not dare to file any affidavit As also, therefore, belied. If the intention was that no affidavit had been filed before the appellate court then I would like to observe that it was not necessary as the supplementary affidavit had already been filed before the Prescribed Authority and so far as its effect was concerned it should have been seen by the appellate court and if it was not satisfied it could have rejected the same. But there was hardly any occasion for observing regarding the courage to file an affidavit as regards Gur Charan Singh being in service with Dyer Meakin. The order, therefore, shows that the learned Judge did not take due account of the relevant evidence on record and in a reckless manner he proceeded to observe whatever was thought proper to allow the appeal. Such an approach is highly unwarranted specially in such important matters like the eviction of a tenant from a shop or a house. It is not that the authorities are not aware of the shortage of, accommodation whether it be a shop or a house, hence the courts are expected to act in more cir cumspect manner.;