Shanti Devi v. District Judge, Allahabad — 1978 DIGILAW 750 (ALL)

JUDGMENT J M. L. Sinha, J. :- This is a writ petition filed by Smt. Shanti Devi, hereinafter called the 'petitioner' praying that the order dated 29th of July, 1977, passed by respondent no. 1 be quashed. 2. The facts of the case, briefly stated, are as follows : "The petitioner is the daughter-in-law and respondent no. 2 the widow of Rikkhi Lal. Since the year 1953 the petitioner was in possession of two rooms in house no. 81, Zero Road, Allahabad, as a tenant and was doing business therein under the name and style of "M/s. Agarwal Machinery Co." Later on the petitioner was persuaded to surrender one room. Rikkhi Lal died in the year 1963 and thereafter relations between the parties deteriorated and civil litigation started. A compromise was, however, reached between then in the year 1968 and in consequence of that compromise the petitioner executed a lease deed in favour of respondent no. 2 on 27th of November, 1968 under which the petitioner was accepted as a tenant of the shop in question for a period of five years. On the expiry of the said period of five years, respondent no. 2 called upon the petitioner to vacate the shop. Since the petitioner did not vacate the shop, an application under section 21 of Act No. XIII of 1972 was filed by respondent no. 2 against her. The Prescribed Authority rejected that application vide its order dated 29th July, 1974. An appeal filed against the order of the Prescribed Authority was dismissed by the District Judge on 25th of November, 1974. Aggrieved against it, the petitioner filed writ petition which was allowed and the case was remanded to the District Judge for being decided afresh after determining : (i) Whether Krishna Kumar was a partner in Bharat Cold Storage, Naini. (ii) Whether the application for release was bona fide or malafide, and (iii) which of the parties would be put to greater hardship. 3. The Learned District Judge, on a consideration of the material on record, held : (i) that Krishna Kumar ceased to be a partner in Bharat Cold Storage after December, 1972, (ii) That the application for release given by respondent no. 2 was bona fide, and (iii) that the respondent no. 3. The Learned District Judge, on a consideration of the material on record, held : (i) that Krishna Kumar ceased to be a partner in Bharat Cold Storage after December, 1972, (ii) That the application for release given by respondent no. 2 was bona fide, and (iii) that the respondent no. 2 will be put to greater hardship, if the application is dismissed as compared to the hardship that may be caused to the petitioner, in the event of the application being allowed. 4. In consequence of the above conclusions, the learned District Judge, vide his order dated 29th July, 1977; allowed the application under section 21 of Act No. XIII of 1972 and directed the petitioner to vacate the shop within four months. Respondent no. 2 was directed to pay to the petitioner Rs. 2,400/- as compensation. It is against that order that the present petition is directed. 5. Learned counsel for the petitioner, in his arguments before me assailed all the three conclusions reached by the learned District Judge. Assailing the first conclusion, the learned counsel pointed out that the ground stated by respondent no. 2 in her application under section 21 of the Act was that she stood in need of the shop to enable her son Krishna Kumar Agarwal to start his own business therein. Learned counsel urged that, consequently, it was necessary to determine as to whether Krishna Kumar Agarwal had ceased to be a partner in the Bharat Cold Storage, Naini, on 28th of November, 1973, on which date the application under section 21 of the Act was moved. According to the learned counsel for the petitioner, if Krishna Kumar Agarwal continued to be a partner in Bharat Cold Storage, Naini, till the date on which the application under Section 21 was moved, it would follow that he was already doing some business and the respondent no. 2 did not genuinely need the accommodation for the purpose stated in the application. Learned counsel pointed out that the learned District Judge did not record a firm finding to the effect that Krishna Kumar Agarwal had retired from Bharat Cold storage after December, 1972. Reference in this connection was made to the following observation occurring in the judgment of the learned District Judge. Learned counsel pointed out that the learned District Judge did not record a firm finding to the effect that Krishna Kumar Agarwal had retired from Bharat Cold storage after December, 1972. Reference in this connection was made to the following observation occurring in the judgment of the learned District Judge. "The facts indicated above clearly show that Krishna Kumar Agarwal retired from Bharat Cold Storage from the end of December, 1972 or, in any case, prior to 1-1-1976. Hence I find that Krishna Kumar Agarwal is not a partner of Bharat Cold Storage, Naini." Learned counsel urged that presumably the District Judge laboured under the impression that, even if Krishna Kumar Agarwal, had ceased to be member in Bharat Cold Storage any time during the pendency of the application under section 21, it would constitute a genuine need on the part of respondent no. 2 to get the shop vacated. Learned counsel stressed that it is the need existing on the date of the application that has to be taken into account and not any subsequent need. It was vehemently urged by the learned counsel for the petitioner that the learned District Judge did not have a clear concept of the law on the point and it is for that reason that he has not recorded a firm finding as to whether or not Krishna Kumar Agarwal was a partner in the firm Bharat Cold Storage on the date on which the application under section 21 of the Act was moved, and it vitiates the whole order. 6. I have given my most anxious thought to the contention raised, but I regret my inability to accept the same. It is common case of the parties that Krishna Kumar Agarwal was admitted to the benefits of Bharat Cold Storage, Naini, when he was a minor. According to section 30 of the Indian Partnership Act, a person who is a minor, can be admitted to the benefits of the partnership with the consent of all the partners. According to sub-section (5) of Section 30, at any time within six months of his attaining majority a minor admitted to the benefits of the partnership may give public notice that he has elected to become or that he has elected not to become the partner in the firm and such notice shall determine his position as regards the firm. According to sub-section (5) of Section 30, at any time within six months of his attaining majority a minor admitted to the benefits of the partnership may give public notice that he has elected to become or that he has elected not to become the partner in the firm and such notice shall determine his position as regards the firm. Sub-section (2) of section 63 of the Partnership Act states that whom a minor, who has been admitted to the benefits of Partnership in a firm attains majority and elects to become or not to become a partner, and the firm is a registered firm he or his agent, specially authorised in this behalf, may give notice to the Registrar that he has or has not become a partner. The learned District Judge after taking into account the averments contained in an affidavit filed by respondent no 2 and a letter written by Krishna Kumar Agarwal himself, came to the conclusion that Krishna Kumar Agarwal had attained majority either in the second half of the year 1971 or in the beginning of the year 1972. A copy of the letter dated 18-12-1972 is Annexure 'I' to the supplementary affidavit filed by the petitioner. This letter is addressed to M/s. Bharat Cold Storage, Shri Jagdish Prasad Agarwal, Sri Ramesh Chandra Agarwal, Smt. Shankuatla Devi Agarwal and Smt. Vidya Agarwal. It was stated by Sri Krishna Kumar Agarwal in this letter that he had been admitted to the benefits of the partnership when be was a minor and that he had since attained majority and did not went to associate himself with the business or take benefits of the partnership business, or carry on the same and as such was severing his connection. The letter thus contains an admission of Krishna Kumar Agarwal to the effect that be had attained majority before 18-12-1972. In that background the conclusion recorded by the trial court that Krishna Kumar Agarwal had attained majority either in the second half of 1971 or in the beginning of the year 1972 cannot be said to be without any basis. The letter thus contains an admission of Krishna Kumar Agarwal to the effect that be had attained majority before 18-12-1972. In that background the conclusion recorded by the trial court that Krishna Kumar Agarwal had attained majority either in the second half of 1971 or in the beginning of the year 1972 cannot be said to be without any basis. Since it is necessary for a minor to give a public notice, as required by sub-section (2) of section 30, within six months of his attaining majority, and since Krishna Kumar Agarwal did not give any such notice, the learned District Judge concluded that he became a partner in the firm on the expiry of six months from the date of his attaining majority. Thereafter the learned District Judge has relied on the letter of Krishna Kumar Agarwal dated 18-12-1972 to show that with effect from that date Krishna Kumar Agarwal retired from the partnership. 7. It is true that, while summing up his conclusion the learned District Judge has observed that Krishna Kumar Agarwal retired from Bharat Cold Storage from the end of December, 1972, or in any case, prior to 1.1.1976". The words 'or in any case, prior to 1.1.1976' have been used by the learned District Judge only to lay stress on his conclusion. In fact on a reading of whole of the relevant parts of the judgments it is apparent that the learned District Judge concluded that Sri Krishna Kumar Agarwal had retired from Bharat Cold Storage from 18.12.1972. The application under section 21 of the Act having been moved on 28th of November, 1973, it was rightly held by the learned District Judge that Sri Krishna Kumar Agarwal was not a partner in Bharat Cold Storage on the date on which the application was moved. 8. Learned Counsel for the petitioner next contended that the application under section 21 of the Act moved by respondent no. 2 was not a bona fide application and the finding of the learned District Judge to the contrary is erroneous. The question, however, whether the application given by respondent No. 2 was a bona fide application or not is a question of fact and I do not think it is open to this Court, in the exercise of its writ jurisdiction, to interfere with that finding. The question, however, whether the application given by respondent No. 2 was a bona fide application or not is a question of fact and I do not think it is open to this Court, in the exercise of its writ jurisdiction, to interfere with that finding. Much stress was laid by the learned counsel for the petitioner on the fact that in the year 1971 respondent no. 2 let out one of her shops to one Jai Ram Agarwal. On that basis it was urged that, if the respondent no. 2 had actually needed the accommodation to enable her son Krishna Kumar Agarwal to run some business, she would not have let out that shop. It was stressed that the fact that she let out that shop in 1971 could lead to no other conclusion except that the respondent no. 2 did not actually need the shop but she wanted to throw out the petitioner from the accommodation in question for extraneous reasons. The learned District Judge, however, considered this aspect of the matter and has observed that even though Krishna Kumar Agrawal had failed in the year 1971, but he continued his studies in the years 1972 and 1973 and Respondent no. 2 could not anticipate when the let out the shop to Jai Ram Agarwal in 1971 that Krishna Kumar Agarwal will fail in subsequent years also. It was only when Krishna Kumar Agarwal failed in 1972 and 1973 that respondent no. 2 felt that it was futile for Krishna Kumar Agarwal to pursue his studies any more and decided to put him in some business under the circumstances, the mere fact that Krishna Kumar Agarwal had failed in the year 1971 and the same year respondent no. 2 had let out one of the shops to Jai Ram Agarwal can certainly not lead to the conclusion that respondent no. 2 did not bona fide need that shop in question and only wanted to get the petitioner evicted by hook or crook. 9. Learned counsel for the petitioner also urged that respondent no. 2 has other shops and the fact that she has chosen to get the shop in possession of the petitioner vacated indicates that the application is not bona fide. Particular reference in this connection was once again made to the shop let out to Jai Ram Agarwal. The argument fails to impress me. 2 has other shops and the fact that she has chosen to get the shop in possession of the petitioner vacated indicates that the application is not bona fide. Particular reference in this connection was once again made to the shop let out to Jai Ram Agarwal. The argument fails to impress me. In the lease deed executed in favour of Jai Ram Agarwal, there was stipulation that the respondent no. 2 would have no right of ejectment even on the ground of personal need. Respondent no 2 felt herself bound by that stipulation. That apart, when a landlord has several apartments on rent with different tenants and the landlord stands in need of one or more apartment out of them on the ground of personal need, it is for the landlord to choose as to which particulars apartment of the premises should be got vacated. If the objection of the nature raised on behalf of the petitioner is to prevail, every tenant will come forward with the same objection, namely, that 1 have been wrongly chosen by the landlord to be evicted because there are other apartments on rent with other tenants which the landlord can get vacated. The result would be that the landlord can get no accommodation vacated. 10. Consequently, the fact that the respondent no. 2 has applied for the shop in possession of the petitioner being vacated, when there is another shop on rent with Jai Ram Agarwal can also not lead to the conclusion that the-application is not bona fide 11. Learned counsel for the petitioner next contended that the learned District Judge has not properly considered the comparative hardship of the parties. Once again I am unable to agree. In coming to the conclusion that greater hardship will be caused to respondent no 2 in the event of the application under section 21 being dismissed, the learned District Judge took into consideration the fact that Krishna Kumar Agarwal, the son of respondent no. 2, was not employed in any business or otherwise on the date on which the application was moved ; that respondent no. 2, was not employed in any business or otherwise on the date on which the application was moved ; that respondent no. 2 did not have any accommodation in which he could put in her son Krishna Kumar Agarwal to start his business; that the family of the petitioner was well established in business and that while executing the lease deed in the year 1968 she had clearly stipulated that the would vacate the shop on the expiry of the period of years thereof. In the context of all the circumstances it cannot be successfully urged that the finding recorded by the learned District Judge regarding comparative hardship of the parties is based on no evidence or any extraneous circumstances. As held by the Supreme Court in the case of Manni Lal and others v. Prescribed Authority, AIR 1978 Supreme Court 29 a finding on a question of comparative hardship is a finding of fact which cannot be disturbed in writ proceeding. It was observed. "It is not for the High Court in exercise of its Jurisdiction under Article 226 of the Constitution to reappraise evidence and to come to its own conclusion which may be different from that reached by the District Judge or the Prescribed Authority." The contention raised is, accordingly, negatived. 12. In the result, this petition fails and is hereby dismissed. No order, however, is made as to costs.