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1978 DIGILAW 352 (ALL)

Mata Din Sharma v. District Judge Banda

1978-03-31

K.C.AGARWAL

body1978
JUDGMENT K.C. Agarwal, J. - This writ petition is directed against the Judgment of the District Judge, Banda, dated 28.5.1977, dismissing the appeal filed by the petitioner under Section 22 of U.P. Act No. XIII of 1972. 2. The disputed premises is a shop. An application was filed under Section 21 of the aforesaid Act for the release of the premises by Kallu Ram and Rameshwar Prasad Pandey. According to the application, the house belonged to the joint family. It was signed by Rameshwar Prasad as well as Kullu Ram. The ground on which the application was founded was that the premises in dispute was needed for the purposes of starting a business by the members of the joint family. The business proposed in the said premises was "Selling of Ayurvedic medicines". The application was contested by the Petitioner. He claimed that the need of the landlord for the premises in dispute was not bonafide and that he was running the business in the disputed shop Since long. It was asserted that the petitioner would suffer greater hardship in case the application filed by the landlord, was allowed. 3. After considering the evidence on the record, the Prescribed Authority held that the need of the landlords was genuine and that the landlords would suffer greater hardship than the tenant in case the application for the release was rejected. Aggrieved by the judgment of the Prescribed Authority, an appeal was taken by the tenant to the District Judge. The District Judge confirmed the findings of the Prescribed Authority and dismissed the appeal. Hence, this writ. 4. The first argument made by Dr. R. Dwivedi, appearing for the petitioner, was that as the application under Section 21 had not been signed by all the members of the joint family, the same was defective, and that the Prescribed Authority could not act upon it. Rule 15(2) of the Rules framed under U.P. Act No. XIII of 1972 lays down that an application filed under Section 21 shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order 6 of the First Schedule to the Code of Civil Procedure and if there are more than one landlords, the application shall be signed by all the landlords. Laying emphasis on the last sentence of the aforesaid Rule, that the application must be signed by all the landlords the learned counsel contended that as all the members constituting the joint family were the landlords the application ought to have been signed by all of them. The sub-mission made is liable to be rejected on grounds more than one. There is nothing on the record of the present writ petition to indicate that the point that the application was not signed by all the members of the joint family had been raised either in the objection or before the Prescribed Authority. The objection was of a nature which should have been raised at the earliest opportunity inasmuch as the same would have given a chance to the landlords to amend the application and to comply with the requirement of Rule 15(2). The petitioner could not take the landlord by surprise by raising the said objection for the first time in this Court. Moreover, the admitted case of the parties appears to be that the property in dispute belongs to the joint family. The application was filed by Rameshwar Prasad, who was the karta of the said family. In my opinion, the signing of the application by Rameshwar Prasad Pandey in the capacity of karta sufficiently fulfil the requirement of law. It was not necessary that all the members of the joint family should have signed it. The view taken by me that the objection should have been raised before the Prescribed Authority is supported by a decision of this Court in Shri Ram v. IInd Additional District Judge, Meerut, and others, 1976 Allahabad Weekly Cases, 493. The decision relied upon by the learned counsel for the petitioner in Smt. Sarju Devi and others v. Prescribed Authority, 1976 Allahabad Weekly Cases 752. is clearly distinguishable. It was not considering the question of ownership of the property by a joint family. Further it was considering a case where the property belonged to several co-sharer and the suit had not been filed for the eviction of the tenant by all of them. The case of a Joint Hindu Family is distinct from that of a co-sharer. 5. The second submission made was that the application made was not a bonafide one inasmuch as Rama Kant and Umesh Chandra were not qualified to start the business of selling the Ayurvedic medicines. The case of a Joint Hindu Family is distinct from that of a co-sharer. 5. The second submission made was that the application made was not a bonafide one inasmuch as Rama Kant and Umesh Chandra were not qualified to start the business of selling the Ayurvedic medicines. It was pointed out by the learned counsel for the petitioner that under the Rules framed by the U.P. Government only a qualified doctor or vaidya could start such a business. The learned counsel, however, could not show me any rule to that effect. Moreover, I see no difficulty in agreeing with the view of the learned District Judge that the landlords could start the business of selling Ayurvedic medicines or the medicines of the firm like that of Dabur or Gurkul Kangri. 6. The third submission was that the landlords had obtained the possession of another shop but instead of occupying the same, they mala fide filed this application for eviction of the petitioner. It has been found by the Courts below that the said shop was lying in a dilapidated condition and was not suitable for the need for which the present application was filed. 7. In the result, the writ petition fails and is dismissed with costs. The stay order is discharged. The petitioner is granted three months time to vacate the premises.