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2001 DIGILAW 130 (UTT)

Nirmala Jain v. Yatendra Kumar

2001-08-01

M.C.JAIN

body2001
JUDGMENT The petitioners are the tenants of a commercial accommodation and have prayed for the quashing of the judgment and order dated 20-6-2001 passed by the IIIrd Additional District Judge, Dehradun, in Rent Appeal No.5 of 1999, whereby the application of the landlords/ respondents u/s 21 of the U.P. Act No. 13 of 1972 for the release of the shop in question in their favour has been allowed. 2. The release application had been made by the landlords/ respondents on the ground of bonafide need that it was required for settling Pravin Kumar s/o the landlord Yatendra Kumar in business of general merchandise .The application was opposed by the tenants/petitioners alleging that the need of the landlord for the disputed shop was not at all bonafide and that alternative accommodation had been made available to the landlord. The prescribed authority rejected the application, but on appeal, the case of the landlord found favour with the appellate Court. Consequently, the release application has been allowed: 3. I have heard learned counsel for both the parties and have carefully gone through the record of the case. 4. It is argued by the petitioners/tenants that the landlord had only indicated a desire for the running of general merchandise business by his son Pravin Kumar, which did not tantamount to bonafide need. Further, the claim of the landlord has been sought to be defeated on these submissions: There had been an agreement between the parties in 1975 whereby the rent of the shop had been increased and it was agreed that- the landlord would not press for the release of the shop;-another application for the release made by the landlord had been rejected due to non-prosecution and it was never sought to be restored by the landlords; in suit no. 467 of 1978 another accommodation had been released in favour of the landlord which was let out to one Sri Kishan Gupra; another shop of the landlord let out to one Kachedu was let out to Bhojraj after Khachedu's death; yet another shop let out to Bhullan came in the occupation of the landlord after Bhullan's death and It was lying vacant; another shop was got released by the landlord from one Surendra Kumar Sethi on 8-4-1999. Thus, on these premises it has been sought to be demonstrated that several other accommodations came to be available to the landlord which he utilised otherwise than in fixing up his son Pravin Kumar in business. 5. On the other hand, it is urged from the other side that the need of the landlord for the disputed shop is genuine, bonafide and real for fixing up Pravin Kumar son of the first landlord Yatendra Kumar in general merchandise business, who was unemployed and was about 21 years of age when the release application was made ten years back in 1991. The claim of the petitioners regarding the alleged availability of other accommodations to the landlord has been countered and refuted. Rather, it has been attempted to be shown that the tenants are affluent persons and also have alternative accommodation. Therefore, the concept of comparative hardship also weighs in favour of the landlord which has rightly been so adjudicated by the appellate Court. 6. On careful consideration, this Court finds that the appellate Court was perfectly justified in allowing the appeal and release the shop in question in favour of the landlord. The record clearly bears out that the scale is heavily tilted in favour of the landlord and that the tenants were simply attempting to defeat the claim of the landlord for the release of the shop on artificial and flimsy grounds. Reasons in this behalf may briefly be stated. The release application was made by the landlord in 1991 for fixing up his unemployed son Pravin Kumar in general merchandise business who was aged about 21years at that time having born in 1971. He was educated only upto 12th standard and had been unable to find a job. It has also been established on record that during the course of proceedings the landlord Yatendra Kumar retired on 31-05-1998 from Irrigation Department from the post of clerk and he ceased to have any profitable engagement. He wanted to assist his son in the proposed business of general merchandise, to be run in the disputed shop. It is a baseless argument of the tenants that there was only desire on the part of the landlord to settle his son in business and not a bonafide need. Indeed, it is the substance that matters and the question cannot be decided on play of words. It is a baseless argument of the tenants that there was only desire on the part of the landlord to settle his son in business and not a bonafide need. Indeed, it is the substance that matters and the question cannot be decided on play of words. The hypertechnical argument advanced from the side of the petitioners/tenants has no substance at all. 7. This Court finds that the landlord has successfully demonstrated on record that no other business premises was or is available to him for establishing his son Pravin Kumar in general merchandise business. The tenants could not at all show that during the pendency of the proceedings any commercial accommodation came to the possession of the landlord. So far as the agreement of 1975 between the parties is concerned, it is to be noted that Rajendra Kumar is one of the co-owners and co-landlords who is also impleaded as a party. The case for the release of the disputed shop had been filed on the ground of being required for the co-landlord Rajendra Kumar. It was compromised with the enhancement of rent and the pending release application was withdrawn. At that time, Pravin Kumar s/o Yatendra Kumar (for whom the disputed shop is now needed) was aged about 4 years. If the pending release application made for the disputed shop for the need of co-landlord Rajendra Kumar was withdrawn in 1975, it does and could not mean that the landlord had abdicated or waived his right to move for the release of the shop for all times to come. With the passage of time and change in circumstances, the shop came to be needed for establishing Pravin Kumar s/o Yatendra Kumar in general merchandise business and the landlord could very well make release application. The agreement of compromise of 1975 could not be used by the tenants as a weapon to defeat the claim of the landlord. It has also satisfactorily been explained by the landlord that Bhojraj is the son of Khachedu's brother who was working with Khachedu since his childhood and Khachedu was treating him like his son. The shop never came to be vacated after the death of Khachedu. The shop of Bhullan had also not been vacated. Rather, his son Sultan inherited the tenancy rights after the death of Bhullan. The shop never came to be vacated after the death of Khachedu. The shop of Bhullan had also not been vacated. Rather, his son Sultan inherited the tenancy rights after the death of Bhullan. So far as the dismissal of another release application in 1987 was concerned, that application had also been made for the need of Rajendra Kumar -co-landlord. Obviously, dismissal of that release application could have no bearing on the merits of the present release application made for the bonafide need of Yatendra Kumar's son Pravin Kumar to establish him in general merchandise business. 8. The evidence is there on record to show that a god own vacated by a tenant was released in favour of co-landlord Rajendra Kumar who started a school therein and Kishen Gupta was its Principal. Therefore, it is an artificial argument that another accommodation got vacated by the landlord was let out to one Kishan Gupta. 9. So far as Surendra Kumar Sethi's shop is concerned, it is noted that application for the release of the shop had been made in 1997 by the landlord for the need of his another son Pankaj Kumar who had also come of age of 23 years and was unemployed. The landlord Yatendra Kumar had himself retired and had no profitable engagement. Two of his three sons, namely, Pravin Kumar and Pankaj Kumar had come up of age and were jobless. There was nothing wrong if he was anxious to fix up both of them in business and needed accommodation for the purpose. It was for the landlord to take decision as to which accommodation he needed for each of his two sons, who were unemployed and were required to be settled down in profitable engagement. Moreover, it may also be stated as a passing reference that accommodation of Surendra Kumar Sethi consequent upon the grant of release application of the landlord ex parte had not yet actually come in the possession of the landlord. Even if it came to be in his possession, that was required by him for his another son Pankaj Kumar who was 23 years of age in 1997. 10. The concept of comparative hardship is also found to be heavily weighing in favour of the landlord. The petitioner/tenants could not show at all that the landlord had any other place to settle down his son Pravin Kumar in business. 10. The concept of comparative hardship is also found to be heavily weighing in favour of the landlord. The petitioner/tenants could not show at all that the landlord had any other place to settle down his son Pravin Kumar in business. The distress and mental agony of middle class person of the society can very well be imagined whose two well grown up sons are unemployed and jobless for want of accommodation and who himself retired from the post of a clerk. All thing considered, this Court is in agreement with the finding of the appellate Court that the need of the landlord for the disputed shop is real, bonafide and genuine to fix up his son Pravin Kumar in general merchandise business. On the other hand it is crystal clear that the petitioners are persons of means and resources. The petitioners/tenants who are husband and wife seem to be owing/possessing several properties in Dehradun. They have alternate accommodation also i.e. 33, Tilak Road, Dehradun, where their eldest son Amit Jain was running a clinic who is now admittedly employed as a Doctor in O.N.G.C. at a place in Himachal Pradesh. Their another son Ankit Jain runs a Motor Workshop at 161, Ballarpur Road, Dehradun. This property, too, is owned by the petitioners in the name of all their four sons, Third son of the tenants is also in service. Thus, it comes to the fore that the tenant C.P.Vaish and one of his sons run a medical shop in the disputed shop which can conveniently be shifted by them to their own accommodation where Amit Jain used to run a clinic prior to joining the service of O.N.G.C. as Doctor. It admits of no doubt that overtaken by greed and extremely selfish attitude, the petitioners want to continue as tenants of the disputed shop on meagre rent, unmindful of the misery and plight of the landlord who has dire need of disputed shop to establish his unemployed son Praveen Kumar in business, now a middle aged man. The landlord, it is obvious, stands on much lower footing than the tenants so far as affluence and resources are concerned as is-clearly reflected by the evidence and material on record. 11. To conclude, this Court does not find any merit in this writ petition. It is hereby dismissed. However, there would be no order as to costs.