Bishambar Dayal v. District Judge, Bareilly — 1978 DIGILAW 739 (ALL)

JUDGMENT K. C. Agrawal, J. :- This writ petition is directed against the judgment of the District judge, Bareilly, dated 30-3-1977. By this judgment, the District Judge allowed the appeal filed by Narendra Kumar Agarwal, respondent No 2. The house in dispute, admittedly, belongs to respondent No. 2. There are two floors in this house. The ground floor had been let out to Bishambbar Dayal, the petitioner, whereas the first floor was in possession of the respondent No. 2. 2. An application under section 21 of U.P. Act No. 13 of 1972 was filed by the respondent No 2, for release of the ground floor in possession of the petitioner on the ground that he was not keeping good health and wanted to return to Bareilly to settle down there as his services bad been terminated. He also alleged in the application that he was a heart patient and needed the ground floor for the purposes of his residence. The respondent No. 2 also stated that the premises on the first floor of the premises would be used by his son, who was residing in Delhi. 3. The application was contested by the petitioner. He claimed that the respondent No. 2 was still in service in Delhi and was permanently residing there. He also asserted that the son of the petitioner did not want to come to Bareilly, and that the said ground had been set up to get the petitioner evicted The petitioner pleaded that the need of the respondent No. 2 was not genuine or bona fide, and that he would suffer greater hardship in case he was evicted from the premises in dispute. 4. The Prescribed Authority rejected the application, but, in appeal the findings of the Prescribed Authority were reversed, and the application filed by respondent writ petition was filed. 5. Learned counsel appearing for the petitioner mainly argued two points before me. The first was that the finding about bona fide requirement of the premises in dispute was incorrect. In this connection, he invited my attention to the application as well as to the judgment of the Prescribed Authority, and urged that the son of the Respondent No. 2, who was settled at Delhi would not choose to come to Bareilly after closing his running business. In this connection, he invited my attention to the application as well as to the judgment of the Prescribed Authority, and urged that the son of the Respondent No. 2, who was settled at Delhi would not choose to come to Bareilly after closing his running business. The learned counsel contended that the learned District Judge committed an error in believing the case of the Respondent No. 2 that his son intended to come to Bareilly. In this background, the learned counsel contended that as the entire first floor was available to the respondent No. 2 the application filed by the said respondent should have been rejected. 6. The question as to whether the son of the Respondent No. 2 wanted to shift to Bareilly, is one of fact. After examination and appraisal of evidence the District Judge held that there was no reason to disbelieve the landlord's version that his son and daughter-in-law also planned to live in Bareilly and for that purpose they needed the first floor. I cannot set aside the said finding of the learned District Judge simply because that finding should have not been given by a court of fact. I do not find any improbability of the nature in the assertion made by the respondent No. 2 that his son wanted to live with the respondent No. 2 at Bareilly. The finding also cannot be termed as perverse. 7. The second question argued by the learned counsel for the petitioner was that as the learned District Judge did not compare the need of the petitioner with that of respondent No. 2, the judgment rendered by the District Judge was illegal. By the proviso added to sub-section (1) of section 21 of U.P. Act No. XIII of 1972, it is incumbent on a Prescribed Authority to take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application. It is, them fore, correct, as emphasised by the learned counsel, that the learned District Judge could not allow the appeal of the respondent No. 2 without recording a finding on the said controversy. I am, however, unable to find substance in the assertion that the learned District Judge did not do so. It is, them fore, correct, as emphasised by the learned counsel, that the learned District Judge could not allow the appeal of the respondent No. 2 without recording a finding on the said controversy. I am, however, unable to find substance in the assertion that the learned District Judge did not do so. The learned District Judge in the last Paragraph of the judgment found that the respondent No. 2 was likely to suffer greater hardship from the refusal of the application than what would be suffered by the petitioner by the grant of the same. In this connection, the learned District Judge also referred to the fact that simply because the petitioner would have to pay some higher rent, that cannot be a ground that his suffering would be greater. 8. Learned counsel for the petitioner, next contended that simply because another house was available to the petitioner in Bareilly, the learned District Judge should not have held that the need of the respondent No. 2 was greater. It is not possible to lay down exhaustively the criteria to determine the pressing need of one party or the other. Rule 16 of the Rules framed under U P. Act No. XIII of 1972 has attempted to provide for some of the factors which will have to be taken into account in determining the need. 9. In P.B. Desai v. C.M. Patel, AIR 1974 Supreme Court 1059 the Supreme Court was called upon to consider the question akin to one involved in the present case. The Supreme Court observed that the proper course in such a case is that the evidence must be brought on record both from the side of a landlord as well as that of a tenant that no alternative accommodation was available to him, and this shows that if evidence is brought to show that alternative accommodation is available to the tenant, that could lead a Court of fact to hold that the tenant would not suffer greater hardship than the landlord. 10. Apart from what I have said above, the question as to whether the need of respondent No. 2 was genuine and greater than the petitioner is one of fact. 10. Apart from what I have said above, the question as to whether the need of respondent No. 2 was genuine and greater than the petitioner is one of fact. In Munni Lal v. Prescribed Authority, AIR 1978 Supreme Court 29 the Supreme Court has held that the High Court cannot re-appraise the evidence and come to its own conclusion different from that of the District Judge and the Prescribed Authority. Therefore, this question cannot be permitted to be raised in the writ petition. 11. The third ground raised by the learned counsel fur the petitioner was that the petitioner was prepared to exchange the ground floor with the first floor, and, therefore, the courts below ought to have considered the said aspect of the matter. It appears that the accommodation in the house was small, and that the exchange was not possible. In this view of the matter, the omission to consider the said aspect is detail cannot vitiate the judgment of the Court below. 12. In the result, the writ petition fails and is dismissed with costs. The petitioner is granted three months' time to vacate the premises in dispute.