Research › Search › Judgment

Allahabad High Court · body

2002 DIGILAW 798 (ALL)

NEKSEY LAL TYAGI v. ADDITIONAL DISTRICT JUDGE

2002-07-05

ANJANI KUMAR

body2002
ANJANI KUMAR, J. ( 1 ) THIS writ petition is filed by the petitioner tenant against the order dated 20th April, 2002. passed by the appellate authority in appeal under Section 22 of the U. P. Act No. 13 of 1972 and also the order passed by the prescribed authority dated 9th October, 1998 under Section 21 (1) (a) of the U. P. Act No. 13 of 1972. whereby the application filed by the respondent-landlord for release of the shop in question was allowed and the order of the prescribed authority was affirmed by the appellate authority. ( 2 ) THE facts leading to the filing of present writ petition are that the landlord filed an application under Section 21 (I) (a; of the U. P. Act No. 13 of 1972 for the release of the shop in question on the ground of bona fide requirement with further allegation that the petitioner-tenant in fact is not carrying any business and the shop in question remains closed. ( 3 ) BOTH the parties exchanged the pleadings and evidence in the form of affidavit. The prescribed authority after considering the entire evidence on record allowed the application of the landlord for release of the shop in question. ( 4 ) AGGRIEVED by the order of the prescribed authority, the petitioner-tenant preferred an appeal, as stated above, under Section 22 of the U. P. Act No. 13 of 1972. The prescribed authority dealt with every aspects of the matter raised before him and arrived at the finding that the need of the landlord is bona fide and comparative hardship tilts in favour of the landlord. The application was, therefore, allowed. Before the appellate authority, petitioner advanced the same arguments which he advanced before the prescribed authority and after discussing the evidence both on merits and law on the subject, the appellate authority affirmed the findings recorded by the prescribed authority on the question of bona fide requirement as well as on comparative hardship and dismissed the appeal filed by the petitioner-tenant. ( 5 ) LEARNED counsel for the contesting respondent-landlord put in appearance and made a statement that he does riot intend to file any counter-affidavit and the matter may be heard and decided finally. Both parties were heard and the judgment was reserved. ( 5 ) LEARNED counsel for the contesting respondent-landlord put in appearance and made a statement that he does riot intend to file any counter-affidavit and the matter may be heard and decided finally. Both parties were heard and the judgment was reserved. This Court also ordered that till the delivery of the judgment, petitioner shall not be evicted from the accommodation in question. ( 6 ) BEFORE me, the same arguments were advanced as were advanced before the prescribed authority and appellate authority. The question of bona fide requirement is covered by the findings recorded by the prescribed authority which have been affirmed by the appellate authority. Similarly, the question of comparative hardship is also covered by the findings recorded by the prescribed authority and affirmed by the appellate authority. Learned counsel for the petitioner argued that this Court sit in appeal towards the findings recorded by both the courts below in exercise of power under Article 226 of the Constitution of India. I am afraid that the propositions of the arguments advanced by the petitioner, is not open to argue. It is well-settled that this Court cannot sit in appeal in exercise of power under Article 226 of the constitution of India over the concurrent findings recorded by both the Courts. ( 7 ) IN this view of the matter, this petition is devoid of any merit and is liable to be dismissed and is hereby dismissed. ( 8 ) FOR the reasons stated above, the petition is dismissed. The interim order/orders, if any, shall stand vacated. However, the parties shall bear their own costs. ( 9 ) AFTER the aforesaid judgment was pronounced, learned senior counsel appearing for the petitioner Sri Rajesh Tandon prays for that some reasonable time may be granted to the petitioner-tenant to vacate the shop in question. Learned counsel appearing on behalf of the contesting respondent does not have any objection. However, the parties shall bear their own costs. ( 9 ) AFTER the aforesaid judgment was pronounced, learned senior counsel appearing for the petitioner Sri Rajesh Tandon prays for that some reasonable time may be granted to the petitioner-tenant to vacate the shop in question. Learned counsel appearing on behalf of the contesting respondent does not have any objection. The petitioner-tenant shall not be evicted from the shop in question for a period till 31st December, 2002, provided : (1) Petitioner-tenant will furnish an undertaking before the prescribed authority within one month from today to the effect that he will handover the peaceful vacant possession of the shop in dispute to the landlord on or before 31st December, 2002 ; and (2) Petitioner-tenant will deposit, if not already deposited, the entire arrears of rent and damages calculated at the rate equivalent to rent, for use and occupation till date and continue to deposit the same, till he vacates the accommodation in dispute or till 31st December. 2002. whichever is earlier. .