Y.K.SANGAL,J. - (1.) HEARD learned counsel for the petitioner and perused the record.
(2.) APPLICATION under Section 21(1)(a) of the U.P. Act No. 13 of 1972 (hereinafter referred to as 'the Act') was moved by the respondents/landlord for release of the premises in dispute (shop) which was under the tenancy of Uncle (Chacha) of the petitioner. It was said that the tenant was not married and he died issue less. It was further stated that petitioner was helping the tenant in his business being his near relative. After the death of his uncle, petitioner in possession of shop started to deposit the rent of the shop under Section 30 of the Act in Misc. Case No. 28 of 2004 Krishna Bihari Mehrotra vs. Mrs. Karuna Srivastava, although he was not tenant of the shop in dispute. Showing their bonafide and pressing need and comparative hardship in their favour, this application under Section 21(1)(a) was moved. In place of filing the written statement in the matter, the petitioner filed a preliminary objection, (7Kha) stating that, respondent no. 2/landlord himself had denied his tenancy right in the property in dispute so application is not maintainable and prayed to dismiss the application. After giving opportunity of hearing to the parties' counsel prescribed authority vide its oder dated 26.02.2008 held that application under Section 21(1)(a) of the Act is not maintainable and dismissed the application. Appeal filed against that order of the prescribed authority was admitted for hearing and in the appeal landlord moved an application for amendment of the application under Section 21(1)(a) of the Act with the averments that after the death of the main tenant, petitioner who is real nephew of the tenant is in possession of the shop. He deposited the rent of the shop under Section 30 of the Act. On the wrong advice of his earlier counsel, in application para 6 under Section 21(1)(a) of the Act he denied his tenancy. He prayed to struck of the word "NAHI" from the paragraph 6 of the application. This application of the landlord was allowed vide order dated 02.07.2009 by the appellate court. This order of the appellate court has been challenged by means of the present writ petition. Learned counsel for the petitioner argued that in the application 21(1)(a) of the Act when the landlord/respondent nos. 2 to 8 had specifically stated in paragraph 6 that petitioner is not their tenant and the prescribed authority held that the application is not maintainable against a person who is not tenant of the property in dispute, respondent nos. 2 to 8 in order to make their application maintainable under Section 21(1)(a) of the Act and to nullify the order of the prescribed authority tried to get amend the application. I inquired from the learned counsel for the petitioner during the course of argument, in what capacity petitioner is occupying the premises in dispute, he avoided the answer of this question. When I again inquired from him whether to avail the benefit of the Act to save him from the ejectment on the ground of default petitioner tendered the rent through money order to the landlord and on his refusal to receive the same, he is depositing the rent under Section 30 of the Act or not, he had not denied the correctness of this case of the landlord. This shows that the petitioner is not coming with clean hands stating under what capacity his is occupying the shop in question. Undisputedly, he is depositing the rent of the shop under Section 30 of the Act after the death of his Uncle. In case of Munna Lal vs. R.C. and E.O.Mathura and others reported in ARC 1998(2) 109 the petitioner wanted to take the benefit of the provisions of the Act to save the ejectment on the ground of default and tendered the rent through money order, but when it was refused, he deposited the rent under Section 30 of the Act with a view to take benefit of the order of deposit of rent in ejectment proceedings. In that case when the other proceedings under Sections 12 and 16 of the Act, started he tried to show that provisions of the Act are not applicable. In the matter this Court held that he cannot be permitted to take this plea in the case. In another case reported in 2002 (47) AIR 259 Uttam Chand vs. 8th Additional District Judge (Cited before the prescribed authority on behalf of the land lord), main tenant was expired and his brother started doing business in the shop. An application under Section 21(1)(a) of the Act was moved. He contested the case showing that he is real brother of the deceased and was carrying on business with (deceased) tenant and thereafter he himself is doing business in the capacity of Karta of an un-divided Hindu family. Prescribed authority found that he is not family member of the deceased-tenant and also petitioner failed to demonstrate that he is a person whom the tenancy of the shop in question was devolved after the death of the deceased-tenant. After seeing the need and comparative hardship of the landlord, building was released. Finding the the trial court was also affirmed in the appeal and in writ petition filed by the person who was claiming himself to be tenant, was also dismissed by this Court.
(3.) APPLICATION under Section 21 of the Act was dismissed in the present case by the prescribed authority, simply on the ground that landlord moved application without admitting the petitioner his tenant of the shop. Now the applicant came with clean hands showing that he was wrongly advised by his counsel so in paragraph 6 tenancy was denied. It is established law that ordinary litigant on such technical points should not suffer for the wrong advice of his counsel. Petitioner is depositing rent treating him landlord under Section 30 of the Act. Now he cannot deny his status as tenant in the shop in question. Landlord has raised any objection denying his tenancy and opposed the application of such deposit of the rent in the proceedings under Section 30 of the Act, it is nowhere said on behalf of the petitioner. It is established law that such deposit amounts payments to the landlord. Now if he had applied to struck of the ward "NAHI" from paragraph 6 of the application under Section 21(1)(a) of the Act and appellate court had allowed the same there is no illegality, invalidity and impropriety and also jurisdictional error in the order of the appellate court. No prejudice can be said has been caused to the petitioner by the impugned order.;