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Allahabad High Court · body

2001 DIGILAW 484 (ALL)

RAVINDRA KUMAR GUPTA v. KRISHAN LAL KHANNA

2001-05-15

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE respondent-landlord moved an application for release of shop under Section 21 (1) (a) of u. P. Act No. XIII of 1972, which is in the tenancy of the petitioner being Release Application no. 81 of 1990, Annexure-3 to the petition. The need alleged by the landlord is to settle his son gulshan Kumar in the business who is alleged to be without any employment. The application for release was rejected by the prescribed authority on 12. 9. 1995 by Annexure-2 to the petition. Therefore, the respondent preferred appeal under Section 22 of U. P. Act No. XIII of 1972, which has been allowed on 25. 4. 2001 by judgment Annexure-1 to the petition and the shop in dispute has been released in favour of the respondent. Aggrieved by it, the present petition has been preferred. ( 2 ) I have heard Sri Manish Goyal. learned counsel for the petitioner and Sri M. K. Gupta, learned counsel for the respondent. ( 3 ) IT has been contended by the learned counsel for the petitioner that the perusal of the application for release shows that it was pleaded by the respondent that he want to settle his son gulshan Kumar, who want to start the business of cycle parts. It is argued that no other need has been pleaded. The trial court considered the matter in detail and found that Gulshan Kumar has not filed his own affidavit. The trial court also found the need for two other sons of the respondent, namely. Satish Kumar and Rajesh Kumar. The trial court has, however, found that there is no need of shop for Gulshan Kumar as he has not filed any affidavit. ( 4 ) IT is further contended by the learned counsel for the petitioner that against the order, rejecting the application for release, the appeal was preferred under Section 22 of U. P. Act No. XIII of 1972. The memo of appeal is Annexure-10 to the petition : it has been argued that the finding that there is no need of the disputed shop for Gulshan Kumar has not been challenged in the memo ; that the affidavit of Gulshan Kumar was filed in the appeal for the first time which is annexure-11 to the petition on 23. 2. 2. 2001 that is about 4-1/2 years after the filing of the appeal ; that, therefore, the need of Gulshan Kumar for the disputed shop cannot be accepted as Gulshan kumar has not come forward to say that he requires the disputed shop for business of cycle parts. ( 5 ) IN this connection, it may be mentioned that it is admitted that two applications for release were simultaneously moved by the respondent in which he has engaged the same counsel. One application is present application, Annexure-3 to the petition in which it was pleaded that the need is to settle Gulshan Kumar son of the respondent. The other application which was moved on the same day was against another tenant Dr. Shobha Arora in which the need of the shop was alleged for another son of the respondent, namely. Rajesh Kumar ; one advocate was engaged by the respondent in both the cases. He prepared affidavits of Rajesh Kumar and Gulshan Kumar to file in each case to show the need. However, by mistake the affidavit of Rajesh Kumar was filed in the present case and that of Gulshan Kumar was filed in the case filed against Dr. Shobha arora ; that this mistake was bona fide and it was detccled in the appeal and, therefore, the fresh affidavit of Gutshan Kumar was filed in the appeal. ( 6 ) IT is not denied that the affidavit of Gutshan Kumar was filed in another release application which was moved against Dr. Shobha Arora simultaneously by the respondent. It is also not denied that the affidavit of Gulshan Kumar was filed in that release application and in that application the alleged need was of Rajesh Kumar another son of the respondent. Therefore, the mistake was bona fide and the application for release cannot be rejected on the technical ground that the affidavit of Gulshan Kumar was not filed for whom the need was alleged. ( 7 ) GULSHAN Kumar son of the respondent has not settled in any business. Therefore, the need to settle him appears to be bona fide. ( 8 ) IT is also contended by the learned counsel for the petitioner that alternative accommodation was available to the landlord as appear from the report of Commissioner Annxure-6 to the petition. ( 7 ) GULSHAN Kumar son of the respondent has not settled in any business. Therefore, the need to settle him appears to be bona fide. ( 8 ) IT is also contended by the learned counsel for the petitioner that alternative accommodation was available to the landlord as appear from the report of Commissioner Annxure-6 to the petition. The report of Commissioner shows that the respondent has a industry which is at a distance of about 150 metres from the house of the respondent. This factory is in a gait and in a rented accommodation. A tin shed has been put by the respondent and he is carrying on business of manufacturing small articles. It has been argued that this alternative accommodation is available to the landlord to settle his son : that the factory can be transferred into the kothari and in the place of the factory, the son of the respondent can start business. However, the suggestion that alternative accommodation is available does not appear reasonable. The factory is in a galf which is not suitable for the shop. Therefore, there is no alternative accommodation. ( 9 ) IT has also been contended that one shop has already been vacated by Dr. Shobha Arora against whom the application for release was filed. It has been argued that the said shop is lying vacant. However, there is finding that on that shop Rajesh Kumar son of the respondent has started business. No doubt, the business is not flourishing and it is at the initial stage and he might be feeling teething problem. For the reason that there is no nourishing business in that shop, it cannot be held that the shop is vacant and Gulshan Kumar can start business in that shop. ( 10 ) AFTER considering the entire facts, 1 find that the need of the disputed shop of the respondent is bona fide and there is no illegality in the finding of the first appellate court. ( 11 ) AS regards the comparative hardship, it is also in favour of the landlord whose son is without any business. ( 12 ) THE petition is without merit and is hereby dismissed. ( 13 ) AFTER the petition had been dismissed, Sri Manish Goyal urged that the petitioner is to be displaced from the shop and would require sometimes to shift to another accommodation. ( 12 ) THE petition is without merit and is hereby dismissed. ( 13 ) AFTER the petition had been dismissed, Sri Manish Goyal urged that the petitioner is to be displaced from the shop and would require sometimes to shift to another accommodation. It was prayed that six months time may be allowed to the petitioner to vacate the accommodation. ( 14 ) WITH a view to balance the rights of the parties and to mitigate the hardship which occasions due to the shifting by an order of release. I feel that it would be Just and proper to allow reasonable time to vacate the premises to the petitioner. Accordingly, the petitioner is allowed six months time to vacate the premises and the order of release shall be kept in abeyance and shall not be executed for six months provided the petitioner fulfils the following two conditions : (i) he deposits in advance the amount of rent due and further rent for six months before the prescribed authority within one month from today, which shall be paid to the respondent. (ii) he files an undertaking on affidavit within one month from today before the prescribed authority that he shall hand over vacant possession in a peaceful manner to the landlord respondent on the expiry of six months from today. In case of the failure of the petitioner to abide by any one of the above two conditions within the time specified, the release order may be executed forthwith. .