ASHOK KUMAR & ORS. versus I ADDITIONAL DISTRICT JUDGE, NAINITAL & ORS.

Citation: [1981] 2 S.C.R. 504 · Decided: 09-01-1981 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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ASHOK KUMAR & ORS. 
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I ADDITIONAL DISTRICT JUDGE, NAINITAL & ORS. 
January 9, 1981 
[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.] 
Uttar Prade3h Urban Buildings (Regulation of Lttting, Rent and Eviction) 
Act, 1972-Sectlon 16(1)(a)-Scope of. 
The appellant. were the landlords of a building in which the tenant was 
running a hotel. They filed a suit for the tenant's eviction on the ground that··~ 
he !lad defaulted in the payment of rent. The suit was decreed. The landlord, 
in anticipation of the premises falling vacant, filed an application before the 
Rent Controller and Eviction Officer under section 16 of the. U.P. Urban Buildinas 
(Regulation of Lelling, Rent and Eviction) Act, 1972 for release of the building 
in question. 
In the meantime respondent No. 3 filed a petition before the District Judge 
alleging that he was a partner in the hotel business with the consent and permb-
sion of the landlord and that the landlord be directed not to dispossess him. 
This application was rejected on the ground that respondent No. 3 was neither 
a party to the ejectment suit nor was any objection filed by him during the 
pend ency of the suit alleging' that he bad a share in the business carried out by 
!he tenant. 
After physical JlO"'e"ion of the premises was delivered to the appellant decree-
holder respondent No. 3 filed a suit against the appellant and the former tenant 
faii setting aside the ejectment decree. He claimed that it was he who was the 
sole tenant and, that for this reason the decree could not have been passed 
against the former tenant. The suit was dismi.!sed. 
The appellant made an application before the Eviction Officer that the pre-
mises be allotted to him. 
The Eviction Officer rejected the objection raised 
by respondent No. 3 and released the property in favour of the appellant. Th• 
Appellate Authority, however, allowed respondent No. 3 ·, appeal holding that"" 
the application filed by the landlord ,. .. not maintainable under section 16 of 
the Act as the tenant bad not been actually ejected when the application for 
notifying the vacancy was made. 
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The appellant'• writ petition was dismissed by the High Court on the ground 
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that before notifying the vacancy tho Eviction Officer did not hear reipondent 
No. 3: 
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Allowing the appeal 
HEW : The High Court w.. in error in dismis.ling the appellant's writ 
petition. 
The High Court doeo not appear to have con•idered the history Of 
the case and the various proceedings leading to the eviction of the tenant and 
to the fact that respondent No. 3 bad ao claim or right to the property. 
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pondent No. 3 never came in po11C11ion of the premises but tried to defeat or 
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ASHOK KUMAR v. I ADDL. DISTT. JUDGE (Fazal Ali, !.) 
505 
delay the decree by varioll8 subterfuges and pretexts. 
At no stage could he 
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show that ho was either a sub-tenant or a partner of tho tenant. There wOi, 
therefore, no question of his being heard by the Eviction Officer after possession 
waa delivered to the landlord and the vacany notified. If at all, such a hearing 
would have been futile and would have ultimately led to the same reswt. 
[508E&DJ 
The Appellate Authority took a wrong view of the law in allowing the res-
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pondent's appeal. Under section 16(1) of the Act it was not necessary that 
tho application for notifying the vacancy should be made only after the premises 
have become actually vacant. Section 16(1)(a) so far as relevant, provides that 
tho District Magistrate may require a landlord to let any building which is about 
"o fall vacaut to any person specified in the order. Manifestly it is not necessary 
that under section 16(l)(a) the premises must actually become vacant before 
an application under it could be filed before tho District Magistrate. In the 
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instant case as the decree for ejectment was under contemptation it 'vas open 
to the appellant to move the District Magistrate for notifying the vacancy under 
the section. [507 E-GJ 
CML APPELLATE JURISDICTION : Civil Appeal No. 1154 of 1974. 
Appeal by Special Leave from the Judgment and Order dated 
16-11-1978 of the Allahabad High Court in Writ Petition No. 
1086/76 . 
R. K. Garg, Vi;ay K. Jain and R. K. Gupta for the Appellants. 
Bishamber Lal for Respondent No. 3. 
'The Judgment of the Court was delivered by 
FAZAL Au, J. This appeal by special leave is directed against an 
Order dated November 16, 1978 of the High 
Court of Allahabad 
dis

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