R.P.Singh, J. - (1.) THIS petition is directed against an order passed by the Additional District Judge, Varanasi, dated 24 -8 -1985 allowing the appeal in proceedings arising out of Section 21 of U.P. Act XIII of 1972, hereinafter referred to as the Act. Heard Sri Saran Behari Lal, learned counsel for the petitioner and Sri R. N. Singh, learned counsel for respondent No. 3.
(2.) THE facts of the case briefly are that the petitioner moved an application under Section 21(1)(a) of the Act for the release of the shop situate in Sakshi Vinayak (Vishwanath Gali) Varanasi which is in the tenancy of respondent No. 3, Loknath Bubana. It was alleged that the shop in dispute is required for setting up the petitioners youngest son Balbir Singh who is unemployed, for starting his business therein which need is bona fide and genuine and that the respondent No. 3 is carrying on his (sic Matter is not clear in source) Sari Centre of Varanasi and since there is no other shop in which the petitioner can set up his unemployed son in business while the respondent No. 3 is running various shops in Kunj Gali in the city of Varanasi, greater hardship would be caused if the shop in dispute is not released in favour of the petitioner. This application was contested by respondent No. 3 on the ground that the disputed shop was let out by the petitioner's husband Narendra Bahadur Singh, who used to realise the rent though after some time Narendra Bahadur Singh told the respondent No. 3 that the rent receipt will now be issued under the signature of Smt. Laxmi Devi, the petitioner in the case and the Corporation number of the said accommodation would be D -10/17 -A. The respondent No. 3 alleged that the need of the petitioner for the shop in dispute is not bona fide and genuine and that the petitioner has other alternative accommodation in his possession. The Prescribed Authority, on going through the evidence on record, held that the need of petitioner for setting up his unemployed son in business was bona fide and genuine and allowed the application of the petitioner vide his order dated 9th December, 1983. Feeling aggrieved, the respondent No. 3 went up in appeal before the IInd Additional District Judge, Varanasi, respondent No. 1 who however, without going into the merits of the case about the bona fide need of the petitioner for the accommodation in dispute, allowed the appeal holding that the application for release was not maintainable because the evidence goes to show that both Narendra Bahadur Singh and Laxmi Devi are co -landlords of the shop and that the release application was not signed by Narendra Bahadur Singh who was also a necessary party to be impleaded in the application and hence the release application was not maintainable. Feeling aggrieved the petitioner has challenged this order passed by the IInd Additional District Judge, dated 24th August, 1985. The learned counsel for the petitioner contended that the respondent No. 3 never challenged the maintainability of the application moved by the petitioner under Section 21(1)(a) of the Act before the Prescribed Authority and it was during the course of the argument in appeal before the Additional District Judge that the respondent No. 3 moved an application on 7 -8 -1985 for amendment alleging that the application moved by the petitioner was not maintainable as the accommodation was let out by the petitioner's husband Narendra Bahadur Singh and he having not signed the application, the same was not maintainable. The learned counsel for the petitioner contended that there is ample evidence on the record of the case to show that the petitioner is the landlady and owner of the premises in dispute, Narendra Bahadur Singh being the husband of the petitioner, was realising the rent on her behalf as an 'attorney' or 'agent' and that is the petitioner who is the landlord and owner of the accommodation in dispute and further that the respondent No. 3 himself has been treating the petitioner as the landlady and owner of the premises in dispute and hence the application for release filed by the petitioner was fully competent which could not be dismissed as not maintainable.
(3.) THE learned counsel for the petitioner has in support of his submission, drawn my attention to the money order coupons sent by respondent No. 3 remitting rent for the accommodation in dispute in the name of the petitioner, copies of which have been annexed as Annexure -2 -A of the supplementary affidavit which shows the respondent No. 3 sent the rent of the accommodation in dispute by money -order in which the petitioner was addressed is 'makanmalkin' landlady Laxmi Devi wife of Narendra Bahadur Singh. The amount was Rs. 980/ - being the rent for month of October 1981 to April 1982. Another receipt to which my attention has been drawn is the photostat copy of the M. O. coupon sent by respondent No. 3 in which he has again addressed the petitioner as 'Makanmalkin' Laxmi Devi wife of Narendra Bahadur Singh. The amount sent is Rs. 560/ - being rent for the month of May 1982 to August 1982. The learned counsel for the petitioner contended that this aspect of respondent No. 3 in sending the rent to the petitioner addressing her as 'Makanmalkin' clearly shows that the respondent No. 3 treated the petitioner as the landlady and owner of the house in dispute. Another paper to which my attention was drawn is the photostat copy of the receipt dated 23rd June, 1982 issued by the Tax Superintendent, Nagar Mahapalika, Varanasi showing that the name of the petitioner Laxmi Devi was mutated in the Assessment Register maintained by the Nagar Mahapalika Varanasi against the premises in dispute. This document also shows that the name of the petitioner is mutated as the owner of the premises in dispute in the records maintained by the Nagar Mahapalika Varanasi. In paragraph 14 of the written statement filed by respondent No. 3, a copy of which has been annexed as annexure 5 to the writ petition, it has been categorically stated by respondent No. 3 that Narendra Bahadur Singh used to realise rent but after some time Narendra Bahadur Singh had told the respondent No. 3 that rent receipts will now be issued under the signature of Smt. Laxmi Devi who is his wife. This conduct of respondent No. 3 in tendering rent of the accommodation in dispute to the petitioner addressing her as 'Makanmalkin' shows that respondent No. 3 had been treating the petitioner as the landlady of the premises in question.;