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2005 DIGILAW 1602 (ALL)

VIDHYADHAR JAIN v. DISTRICT JUDGE MAINPURI

2005-08-29

VIKRAM NATH

body2005
VIKRAM NATH, J. This petition has been filed by the landlord for quashing the judgment and order dated 27-7-1998, passed by the District Judge, Mainpuri, whereby the appeal of the tenant (respondent No. 2) was allowed and after setting aside the judgment of the Prescribed Authority dated 18-11-1997, the release application of the landlord-petitioner was rejected. 2. The dispute relates to shop No. 3440, situate in Mohalla Chhapatti, District Mainpuri of which the petitioners are the owners and landlord and respondent No. 2, is the tenant at the rate of Rs. 65 per month carrying on shoe business. In the year 1981, the landlord filed an application under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act), which was registered as Case No. 30 of 1981 setting up need for his eldest son Atul Kumar Jain as he was unemployed at that time. Subsequently, Atul Kumar Jain got temporary service in the education department and, therefore, the application for release i. e. Case No. 30 of 1981 was dismissed. 3. After 11 years the present release application, was filed which was registered as P. A. Case No. 27 of 1993. This time as 3 younger sons who had by that time become major and were unemployed and not much educated therefore, the need was set up for them to start some business, in the shop in dispute. It was also alleged in the release application that the tenant did not have any need of the shop in dispute for the reason that the tenant who was already in occupation of another shop had handed over its possession to his son for carrying on business of jewellery and shoe separately. It was further alleged that the shop in dispute was closed most of the time as it was no longer being used by the tenant. On the other hand, it was alleged that the landlord did not have any other suitable accommodation in Mainpuri City where he could set up his sons for doing business. Further in paragraph 15 of the release application the landlord also gave details of various shops lying vacant in mohalla Chippati itself which the tenant could take on rent and set up his business. 4. Further in paragraph 15 of the release application the landlord also gave details of various shops lying vacant in mohalla Chippati itself which the tenant could take on rent and set up his business. 4. The respondent No. 2 contested the release application and alleged that the landlord did not have any need and it was only to dispossess the tenant and let it out on higher rent. It was further further alleged that the tenant did not have any other shop in his use and occupation. The landlord filed replication and also provided details of the shops in possession of the tenant being shop No. 2079 in Bizzen Market and shop No. 2109 in Mohalla Chhapatti, on which he was carrying on his business. 5. Both the parties led evidence in support of their cases. 6. The Prescribed Authority vide judgment dated 18-11- 1997 came to the conclusion that the landlord bona fide required the premises in dispute and further that the landlord would suffer greater hardship in case the release application was rejected and accordingly allowed the release application and ordered for eviction of respondent No. 2. It further ordered that in case the landlord does not carry on any business in the shop in dispute, it would be open to the tenant to apply for restoration of possession of the shop. The tenant filed the appeal under Section 22 of the Act, which was registered as Misc. Appeal (Rent Appeal) No. 5 of 1997. The District Judge, Mainpuri vide judgment dated 27-7-1998 allowed the appeal of the tenant and after setting aside the judgment of the Prescribed Authority rejected the release application. 7. Aggrieved by the same the landlord-petitioner has filed the petition. 8. I have heard Sri K. Shailendra, learned Counsel for the petitioner and Sri Haider Husain, learned Counsel for the respondent No. 2. 9. 7. Aggrieved by the same the landlord-petitioner has filed the petition. 8. I have heard Sri K. Shailendra, learned Counsel for the petitioner and Sri Haider Husain, learned Counsel for the respondent No. 2. 9. The contention of the learned Counsel for the petitioner is that even though there was sufficient material on record to establish that there are three other shops namely 2109, in mohalla Bizzen market, 3973 in mohalla Chhipatti and 2079 in mohalla Bizzen market which were in possession of the tenant where his sons are carrying on business yet the Court below wrongly observed that there is no evidence to prove the possession of the tenant on shop No. 2079 Bizzen market and further with regard to shop No. 2109 mohalla Chipatti, it has been wrongly held that it was in possession of Sazid Ahmad son of tenant and that the tenant Hameed Ullah had nothing to do with the same. Learned Counsel for the petitioner has referred to Khasra of Nagarpalika Mainpuri, which are annexed as Annexures 11 and 12 and relates to shop No. 2109 mohalla Chapatti in which in the name of tenant Sri Hamid Ullah Khan is mentioned and it also as mentions the shop as Hameed jewelers. Further in addition to Khasara the petitioner contends that the receipts filed in support of the contention that the shop No. 2109 was in the tenancy and occupation of Hamid Ullah and in view of the above observation of the respondent No. 1 in the judgment that the tenancy of the said shop was in the name of Sazid Ahmad cannot be said to be correct. He contended that it is admitted position that prior to 1986 the shop No. 2109 was in possession of Hamid Ullah, after 1986 the case has been set up regarding tenancy in favour of Sazid Ahmad, which was only done in order to defeat the claim of the landlord to seek eviction and that too after 1981 when the appellant had filed the first application for release. It is further contended that record of Nagar Palika still show that Hamid Ullah is tenant and not Sazid Ahmad and merely on account of affidavit filed by the landlord of the said shop Sri Krishna that Sazid was the tenant the same cannot be accepted. It is further contended that record of Nagar Palika still show that Hamid Ullah is tenant and not Sazid Ahmad and merely on account of affidavit filed by the landlord of the said shop Sri Krishna that Sazid was the tenant the same cannot be accepted. On the other hand Sri Haider Husain, learned Counsel for the respondent contended that the contention of the petitioner cannot be accepted about shop No. 2109 as the respondent No. 1 had correctly observed that there is no evidence on record with regard to the same. 10. A perusal of the impugned judgment of the respondent clearly indicates that while recording finding on the question of bona fide need of the landlord the Appellate Court had examined the availability of three other shops with the tenant, and upon consideration it held that there was no evidence with regard to any other shop being available with the tenant. On such considerations it recorded the finding that the landlord had no bona fide need and would suffer lesser hardship in case release application was rejected. Such an approach adopted by the respondent No. 1 cannot be accepted. The bona fide need of the land-lord is to be considered and decided on factors and on the basis of the material relevant for the same. It cannot stand to reason that bona fide need is nor genuine as the tenant has no other shop in his possession. This fact may be relevant for determining comparative hardship between the parties. 11. Considering the submission made by the parties and the approach taken the respondent No. 1. The impugned judgment cannot be legally sustained. Normally this Court would not have examined the evidence but would have remanded the matter, but as the release application was filed twelve years ago in 1993 the Court is proceeding to examine the findings of the Prescribed Authority and to pass just and appropriate orders in exercise of its equitable jurisdiction under Article 226 of the Constitution. It is now well-settled that once the tenant had notice to vacate the shop he ought to have looked for another accommodation. It is not in dispute that the petitioner-landlord has no other shop available except the shop in dispute for which release had been filed. It is now well-settled that once the tenant had notice to vacate the shop he ought to have looked for another accommodation. It is not in dispute that the petitioner-landlord has no other shop available except the shop in dispute for which release had been filed. The first floor room was the only accommodation from where he carried on cloth business with the help of wooden plank adjoining and abutting the shop in dispute. 12. The shop Nos. 2079, 2109 or 3973 even assuming they were not in possession of the tenant the contention of the tenant that he has no concern with the said shops as his sons were carrying on completely separate business cannot deprive the landlord from getting the shop in dispute vacated, in order to set up his 3 major sons who were neither much educated nor were employed. The landlord had averred that in one room on the first floor he was stocking his material and by side of the shop in dispute on the wooden plank he was selling the clothes. Therefore, even without going into the disputed questions and the evidence I am of the view that the release application of the petitioner was rightly allowed by the Prescribed Authority and the Appellate Court committed illegality in allowing the appeal of the tenant. As already stated above, the landlords application had specifically mentioned that there were other shops available in the same locality where the tenant could shift his business. The tenant having failed to search for an alternative accommodation in the list 12 years and having not made any efforts for the same cannot be said to suffer any hardship in case of release of the shop in dispute. 13. In view of the above discussion the judgment of the Appellate Court cannot be sustained and is set aside and order of the Prescribed Authority dated 18-11-1997 is restored. Writ petition is accordingly allowed. 14. After the judgment was dictated and the writ petition was allowed Sri Haider Husain, learned Counsel for the respondent/tenant sought time to seek instruction to request the Court for grant of some reasonable time to vacate. Writ petition is accordingly allowed. 14. After the judgment was dictated and the writ petition was allowed Sri Haider Husain, learned Counsel for the respondent/tenant sought time to seek instruction to request the Court for grant of some reasonable time to vacate. However, as such an order would require an undertaking to be tiled by the tenant, therefore, Sri Haider Husain, learned Counsel for the respondent is allowed time till 9th September, 2005 to inform this Court with regard to instructions, which he may receive from his client. 15. Put up this matter on 9. 9 2005 for consideration of grant of time. If this Bench is not available the matter win be listed in chamber at 1. 30 p. m. on 9-9-2005. Petition allowed. .