Shambhoo Nath Sharma v. District Judge, Kanpur — 1981 DIGILAW 160 (ALL)

JUDGMENT A.N. Varma, J. - This petition was heard ex parte and was allowed by me by my judgment dated 24.4.1980. Subsequently, an application was moved on behalf of the respondent No. 2 for setting aside of the ex parte order. The said application was allowed by me after hearing learned counsels for both the parties on 3.11.1980. Thereafter, the petition was heard again on merits on 8.1.1981. The petition is directed against an order passed by the learned District Judge, Kanpur dated 8.4.1978 allowing an appeal and setting aside an order of eviction dated 31.10.1977 passed by the Prescribed Authority under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972. 2. These are the acts : The petitioners are admittedly the owners and landlords of the accommodation in dispute of which the respondent No. 2 Sri Bhola Nath Sharma is the tenant. The petitioners filed an application under Section 21(1)(a) on the ground that they have a growing family, that the children have grown in years since the house was first let out, that the landlord Shambho Nath Sharma had just two living rooms for the residence of his entire family which was entirely inadequate for the needs of the family and that the tenant has other accommodation available to him in the same city where he could shift and that on a comparison of relative hardships also it would be found that the landlord would suffer more than the tenant. The application was contested by the tenant who asserted that the accommodation already available with the landlord was sufficient for his requirements that the tenant has no other accommodation available to him and that he would suffer irreparable loss if the application of the landlords was allowed. In the written statement, the tenant also took up the plea that there were other owners of the property than the two landlords who had filed the application under Section 21 and that, inasmuch as, those other co-owners have not joined in the making of the application, the same was incompetent in law. 3. The Prescribed Authority over-ruled the last objection of the tenant on the short ground that he had not set up in the written statement any plea of the effect that there were other landlords besides the petitioner. 3. The Prescribed Authority over-ruled the last objection of the tenant on the short ground that he had not set up in the written statement any plea of the effect that there were other landlords besides the petitioner. The Prescribed Authority then recorded a finding that having regard to the number of the members of the petitioner's family and their requirements as well as the present accommodation available with them, the landlords bonafide required the accommodation in dispute. On the question of comparison of relative hardship too the Prescribed Authority returned a finding in favour of the landlord. With these findings, the Prescribed Authority allowed the application and directed the eviction of the tenant. The tenant, thereupon, appealed. The appeal has been allowed by the learned District Judge. 4. The learned District Judge has first held that the application of the petitioners was not maintainable, inasmuch as, the other co-landlords had not joined in making of the applications. In the opinion, of the learned District Judge, there was thus a breach of Rule 15(2) of the Rules framed under the Act. The learned District Judge then considered the requirement of the landlord and came to the conclusion that he bonafide required the accommodation in view of the growing needs of the family, their ages and the number of living rooms available with them. The learned District Judge also considered the needs of the tenant and came to the conclusion that the tenant's needs were also genuine. In the end, the learned District Judge entered into the question of comparative hardship. He dismissed the petitioner's application on the ground that whereas the petitioner has some accommodation available with him the tenants would be on the streets, if the application is allowed. The learned District Judge allowed the appeal and rejected the application of the landlord. 5. The first point urged by learned counsel for the petitioner was that the learned District Judge committed a patent error of law in holding that the petitioner's application suffered from a legal defect namely, breach of Rule 15(2) of the Rules framed under the aforesaid Act. 6. Having heard learned counsel for the parties, I am inclined to accept the above submission. The Prescribed Authority had rightly observed that the tenant had failed to prove that there were landlords other than the petitioners. 6. Having heard learned counsel for the parties, I am inclined to accept the above submission. The Prescribed Authority had rightly observed that the tenant had failed to prove that there were landlords other than the petitioners. Learned District Judge has held the application of the petitioner to be defective on the ground that there was material on the record to show that there was co-owners other than the petitioner and his brother arrayed as opposite party No. 2 in the application under Section 21 and that as there was no material on the record to show that there was any partition amongst the various co-owners of the accommodation in question, it must be held that the application was bad for non-compliance of Rule 15(2). The learned District Judge was clearly wrong there. The burden to prove that the application of the petitioners (sic) was on the tenant. It was for the tenant to prove that there were other landlords as distinct from co-owners than the petitioners, it was for the tenant therefore, to have established that there were other landlords. Learned counsel for the respondents was unable to point out any evidence which might have established that there were other landlords beside the petitioners. That being so, the application of the petitioners could not be held to be defective in law. This conclusion however, does not put an end to the case, inasmuch, as the learned District Judge has also dismissed the application of the petitioner it is the latter who on the finding that as between the landlord and the tenant, under Section 21 on merits would suffer greater hardship. 7. The learned District Judge has found that though the claim of the petitioner that he needed additional accommodation for his guests could not be entertained as valid and genuine, it did seem that having regard to the growing family of the petitioner, particularly the prospective need of a separate accommodation for the petitioner's eldest son who was shortly going to be married was certainly genuine and bonafide. The learned District Judge however, dismissed the petitioner's application when it came to comparison of respective hardship likely to be caused to the two parties. The learned District Judge however, dismissed the petitioner's application when it came to comparison of respective hardship likely to be caused to the two parties. He has observed that having regard to the circumstances of the two parties, it was clear that the tenant would suffer greater hardship from his eviction than the landlord by the rejection of his application under Section 21. 8. In regard to the later finding, namely the one on the question of relative hardship, relying on the decision of the Supreme Court in the case of Bega Begum v. Abdul Ahad Khan, 1979(1) Rent Control Reporter 170, learned counsel for the petitioner vehemently contended that the District Judge committed a patent error of law in refusing the petitioner an order for eviction only on the ground that the said order would result in the tenant's being thrown on the streets without any alternative accommodation or shelter. Learned counsel's particular emphasis on the observations of their Lordships of the Supreme Court in the above case appearing on page which reads thus : "It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction. Whenever a decree for eviction is passed but that was fully in contemplation of the legislature when Section 11(1)(h) of the Act was introduced in the Act. This by itself would not be a valid ground for refusing the plaintiff a decree for eviction". 9. While it is correct that an application of a landlord cannot be thrown out on the mere ground that the tenant would be faced with the consequence of being ousted from the accommodation in question. I find that the learned District Judge has not dismissed the petitioner's application only on the ground that the tenant would be left with no accommodation to the total exclusion of all other considerations. Learned counsel for the respondent took me through the various findings recorded by the learned District Judge indicating that the Court had taken into consideration various relevant factors such as the number and ages of the members of the families of the landlord and the tenant and the number of rooms presently available with the landlord. The learned District Judge was also aware of the fact that the petitioner was a lawyer and needed some accommodation for his chambers. The learned District Judge was also aware of the fact that the petitioner was a lawyer and needed some accommodation for his chambers. The learned District Judge, however, took note of the fact that whereas the landlords had atleast some accommodation available with him, the tenant has none. The case of the landlord that the tenant has available with him an alternative accommodation has been expressly rejected by the learned District Judge. It is, therefore, not correctly to say that the learned District Judge was swayed only by the consideration that the tenant would be ejected from the accommodation with no alternative accommodation to fall back upon in the event of the application being allowed. I find that the learned District Judge did apply his mind to the relevant facts and circumstances of each party before giving a finding that the tenant would suffer hardship than the landlord. The question as to who would suffer greater hardship is indisputable a question of fact as held by the Supreme Court in the case of Munni Lal v. Prescribed Authority and others. Their Lordships of the Supreme Court have observed that a High Court exercising powers under Article 226 of the Constitution of India cannot disturb a finding on such a question by a mere reappraisal of evidence. The finding given by the learned District Judge not having been demonstrated to be vitiated by any error of law cannot be reviewed in these proceedings in view of the above pronouncement of the Supreme Court. 10. Even on facts, the finding of the learned District Judge on the question of comparative hardship seems to be unexceptionable. On the said finding, the application of the petitioner was rightly rejected. 11. In the result, the petition fails and is dismissed. There will be no order as to costs.