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2006 DIGILAW 2388 (ALL)

Parshadi Lal Verma v. Subhash Babu Gupta

2006-09-19

RAKESH TIWARI

body2006
JUDGMENT : Rakesh Tiwari, J. 1. Heard counsel for the parties and perused the record. 2. The petitioner is tenant in the disputed shop No. 54 situate at Mohalla Najab Ali, Aliganj, district Etah. Respondent-landlord instituted P.A. Case No. 14 of 1995, Subhash Babu v. Parshadi Lal Verma u/s 21(1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') for release of the aforesaid shop on the ground of personal need of his two sons-Sri Diwari Lal and Sri Ajay Kumar for settling them in the shop, in dispute. 3. The petitioner filed written statement denying the allegations in the release application, inter alia, that the landlord has no need of the disputed shop as other shops are also in possession of the landlord in Quasba Aliganj. 4. Contention of the counsel of the petitioner is that in his replica, the landlord did not specifically deny the availability of alternate accommodation for his sons. 5. The parties filed their affidavits and classificatory affidavits. 6. The Prescribed Authority after considering the evidence rejected the release application vide Judgment and order dated 26.11.1997 holding that comparative hardship of the tenant is proved to be greater than the landlord and need of the landlord was not bona-fide. The relevant finding of the Prescribed Authority in this regard is as under: -----fdjk;snkj dks vf/kd dfBukbZ gksuk fl) gS rks fjDr djus dk ÁkFkZuk Ik= vLohdkj fd;k tk ldrk gSA Åij dh xbZ foospuk ls ;g Li"V gS fd ;g fl) ugha gksrk gS fd vkosnd dks fookfnr nqdku dh vko';drk ln~Hkkfod gS rFkk ;g Hkh fl) gS fd rqyukRed dfBukbZ dk fcUnq foi{kh ds Ik{k esa gSA vr% mDr uthj Hkh vkosnd dks dksbZ ykHk ugha igaqpkrhA vr% ÁLrqr ekeys esa u rks vkosnd dh ln~Hkkoh vko';drk fl) gS vkSj u gh rqyukRed dfBukbZ dk fcUnq vkosnd ds Ik{k esa gSA mijksDr dkj.kksa us ÁkFkZuki=] [kkfjt gksus ;ksX; gSA 7. Aggrieved by the order of rejection of his release application, the respondent-landlord preferred review application before the Prescribed Authority for review to his judgment and order dated 26.11.1997 which was rejected. 8. It appears from record that the petitioner filed amendment application for amending his written statement by adding paragraphs 13 and 14 for bringing some subsequent events on record. Aggrieved by the order of rejection of his release application, the respondent-landlord preferred review application before the Prescribed Authority for review to his judgment and order dated 26.11.1997 which was rejected. 8. It appears from record that the petitioner filed amendment application for amending his written statement by adding paragraphs 13 and 14 for bringing some subsequent events on record. The amendment application was allowed by the lower appellate court and amended reply was also filed by the landlord. 9. The contention of counsel for the petitioner is that Sri Diwari Lal died in the meantime as such, the need of the landlord for the disputed shop extinguished as Sri AJay Kumar, the other son of the landlord also filed his own affidavit before the lower appellate court, inter alia that he is living with his uncle (phupha) at Kanpur and is doing business there with him. 10. The lower appellate court allowed the appeal and directed the petitioner to vacate the premises within two months. 11. From a perusal of the judgment and decree passed by the lower appellate court, it is evident that it has discussed the evidence and findings of the Prescribed Authority in detail and thereafter has held that merely because Sri Ajay Kumar was doing some business with his 'phupha' at Kanpur, it cannot be said that it lessens his requirement for getting the disputed shop vacated for doing his own independent business. It observed as under: ...It is a right of every male member of the family to establish his own business and if they seek release of their properties from the tenant for that purpose, it cannot be said that they have not bona fide requirement. It was also stated on behalf of respondent that the houses of appellant and his family members are situated on the road and there are shops around that area and the appellant can get his house converted into the shop for doing business if it is required. In my view this contention is illogical and liable to the rejected on the face of it as the contention appears quite unreasonable. As regards bona fide need, the Court held that: ...Bona fide means genuinely and sincerely, i.e., in good faith in contradistinction to mala fide. In my view this contention is illogical and liable to the rejected on the face of it as the contention appears quite unreasonable. As regards bona fide need, the Court held that: ...Bona fide means genuinely and sincerely, i.e., in good faith in contradistinction to mala fide. It has been held by Hon'ble High Court in case of Jayant Kumar v. Prescribed Authority 1979 RCC 132, that it is not necessary that the landlord must stand in absolute need of building. Similarly in Sushila Vs. IInd Addl. District Judge, Banda and Others, (2003) 2 SCC 28 it has been held by Hon'ble Supreme Court that if a person is doing business along with his father then it cannot be held that his need to establish independent business is not bona fide. This view has been reiterated by Hon'ble Allahabad High Court in Banshidhar v. IIIrd A.D.J., Aligarh 2000 (2) ARC 808, as relied upon by the appellant. Similarly, the Hon'ble High Court in case of Dwarika Nath Soni Vs. Bhagwan Dass Gupta, (2006) 1 AWC 590 has held that every adult member of the family has a right to settle down in independent business. Such need cannot be rejected on the ground that the same is not bona fide. Learned Counsel for the respondent has relied upon the ruling of the Hon'ble Supreme Court as in case of Sudha Agarwal v. Xth A.D.J., Varanasi 1999 (2). ARC 440 : 1999 (4) AWC 2825 , wherein it has been observed by the Hon'ble Supreme Court that requirement of landlord has to be proved as bona fide and there is no presumption in his favour that when case falls under Explanation (1) to proviso fourth of Section 2(1) of the Act. No doubt, the bona fides of the applicant is a necessary condition of file an application u/s 21 of the Act but in the present case, considering the entire circumstances and the above discussion and the ruling stated above, the appellant has been able to prove that he has bona fide need and requires the disputed shop for his business. 12. Lower appellate court also dealt with the question of comparative hardship, in detail as under: ...Now it is also to be considered that in whose favour the balance of comparative hardship lies. 12. Lower appellate court also dealt with the question of comparative hardship, in detail as under: ...Now it is also to be considered that in whose favour the balance of comparative hardship lies. The applicant/appellant has already shown that his two sons namely, Diwari Lal and Ajay Kumar are married and major and they want to set up their independent business. Although it has come in the affidavit 14C2 of Subhash Babu filed in this Court that Diwari Lal is working in one part of the shop on which the appellant was doing business but that does not mean that he does not bona fidedly require independent shop. The appellant has been able to show that he has no other shop while it has also come on record that ' respondent owns a big house comprising 7 rooms and other open places. This house is shown on main roads covered from two sides by the road. As per report Commission 29C-2, the respondent is already using two rooms of the said house for his business purposes and has established the business for making medicines in that house. In these circumstances, it appears that if the respondent shifts his business from the disputed shop to his house he would face less hardship than the one which is being faced by the appellant due to non-eviction of the disputed shop. It has been stated that the respondent is engaging in medical profession and he has earned a goodwill in the area. Thus if he shifts his business from the disputed shop to his house in the same city which is on open road, his name and goodwill would hardly suffer any loss in his business. The medical profession is attached to the personal expertise and not to the premises unlike as in cases of other commercial businesses. It was stated by the respondent that he has a big family having six boys and three girls out of which two girls have already been married. The other children of the respondent have been stated to be getting education. The house owned by the respondent appears quite big. Thus, the mere fact that the respondent has a big family will not reduce the need and hardship of the appellant. The other children of the respondent have been stated to be getting education. The house owned by the respondent appears quite big. Thus, the mere fact that the respondent has a big family will not reduce the need and hardship of the appellant. It was also argued by the learned Counsel for the respondent that as per provisions under Rule 16(2) of the Rules, under this Act, the appellant is not entitled to get the shop in question released. It was also argued that since the respondent was doing business in the shop since long time, it would not be proper to allow the application u/s 21 of the Act. In the present case, it is to be noted that respondent is said to be a doctor having good name and fame and goodwill in the area and he owns a big house situated on main road of the same town. It has also come on record that he is also doing business of medicines from his house as he has established machines for taking medicines here. In these circumstances, the mere fact that the respondent is tenant in the disputed shop since long time it would not be appropriate to reject the application of the appellant on this ground. It may also be stated that where a tenant has available with him the suitable accommodation to which he can shift his business without substantial loss they shall be greater justification in allowing the application. It has also been held by Hon'ble High Court in case of Banshidhar v. IIIrd A.D.J., Aligarh, that where a tenant had no shop available to him in a vacant state, but did not bring any evidence to show the search for alternative accommodation, the application may be allowed. In the present case also, the respondent has not shown that he has made any effort to search any alternative shop. Similar view was reiterated by the Hon'ble High Court in case of Mohd., Abdul Gani Azad v. Devi Prasad and Ors. 2005 (2) ARC 825. 13. Thus lower appellate court after discussing the facts and law applicable in the case concluded that on considering the entire set of facts and circumstances and the record that landlord would face comparatively more hardships and that he has been able to prove bona fide need of the shop in dispute. 2005 (2) ARC 825. 13. Thus lower appellate court after discussing the facts and law applicable in the case concluded that on considering the entire set of facts and circumstances and the record that landlord would face comparatively more hardships and that he has been able to prove bona fide need of the shop in dispute. It held that the findings of the Prescribed Authority are perverse and he has not been able to appreciate the controversy in the right perspective. The conclusions are as under: Considering the entire facts and circumstances and the material on record, it appears that the appellant is facing comparatively more hardship due to non-eviction of the disputed shop than the one which the respondent will face in case of eviction. In the present appeal, considering the entire facts and material on record, it is held that appellant has been able to prove bona fide need of the disputed shop for his business and the factor of comparative hardship is also in his favour. The learned Prescribed Authority has not appreciated the material on record in the right perspective and has drawn the conclusion not supported by material on record. The findings of the learned Prescribed Authority are perverse and not sustainable. The impugned order passed by the Prescribed Authority is liable to be set aside and the application filed by the applicant/appellant u/s 21 of the U.P. Act No. 13 of 1972 is liable to be allowed. However, since the respondent would face at least some hardship, considering the entire facts, it appears appropriate that a compensation of amount equivalent to the rent of two years of the disputed shop be awarded to the respondent from the appellant. Thus, the appellant will pay an amount of Rs. 792 to the respondent as compensation. 14. It is apparent from the findings recorded by the lower appellate court on the question of bona fide need and comparative hardship that the petitioner is a doctor by profession and is an affluent person. He has his own big house on the main road of the same town in which he is doing his business of medicine. He has installed his machines there. It is also apparent from record that the petitioner. He can afford anther shop on rent or open his own shop in his big house where he is doing business of medicines and has installed machines. He has installed his machines there. It is also apparent from record that the petitioner. He can afford anther shop on rent or open his own shop in his big house where he is doing business of medicines and has installed machines. Without looking at his own selfish conduct he advises the landlord to get a shop or shift in shops of his brothers or in the shop of his dead son late Dwarika Lal which was willed to him by his mother. 15. The petitioner has his own big house and the respondent has no house for his livelihood, as found by the lower appellate court. The petitioner has failed to prove that any other independent shop is available to the landlord. Finding in this regard is that shop alleged to be available to the landlord, in fact is shop of his brother. Brother is not family member. Hence it cannot be expected that the brothers would permit the son of the landlord to sit with them. As regards adoption of Sri Ajay Kumar by his phupha and he is doing business with him, it is also of no relevance. Every adult member of the family is entitled to run his independent business. Admittedly, mother of Sri Ajay Kumar, wife of the landlord had bequeathed the shop in favour of S/Sri Diwari Lal and Sri Ajay Kumar. Sri Diwari Lal was sitting with his mother in the shop is no more alive and died during the pendency of the proceedings. Mother is also no more alive but the family members of the Diwari Lal will inherit the shop which was bequeathed by wife of the landlord in his favour and not the petitioner who wants the shop, in dispute, to do his own independent business as no other shop is available to him. 16. Petitioner has failed to make out any case for interference in the writ jurisdiction as there is no perversity or illegality in the impugned order passed by the lower appellate court. 17. For the reasons stated above, the writ petition is dismissed. The petitioner will handover peaceful possession of the disputed accommodation to the landlord within a month from today and will pay arrears of rent, if any, within the same period. 17. For the reasons stated above, the writ petition is dismissed. The petitioner will handover peaceful possession of the disputed accommodation to the landlord within a month from today and will pay arrears of rent, if any, within the same period. In case of failure to vacate the disputed accommodation or in making payment of the arrears of rent, if any, within the aforesaid stipulated period, the petitioner may be evicted by the respondent-landlord with the assistance of local Police on his application within a week thereafter. Non-payment of arrears of rent, if any, will be recoverable as arrears of land revenue. Costs 18. So far as cost is concerned, Hon'ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344 has held that: So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates. Thus from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate Bar Association (supra) it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment. 19. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment. 19. Following the ratio laid down in Salem Advocate Bar Association (supra), this Court in Civil Misc. Writ Petition No. 48752 of 2006, Nizamuddin v. Shakoor Ahmad, after considering provisions of Rule 9 of Chapter XXII and Rule 11 of Chapter XXI of the High Court Rules, 1951 and provisions of Sections 34, 35A and 35B of the CPC has held that while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded. 20. Since it is a frivolous petition, the cost is to be deterrent and exemplary. In the facts and circumstances of the case, it is directed that apart from payment of arrears of rent, if any, the petitioner will also pay cost of Rs. 10,000 which shall be deposited by the petitioner before District Judge, Etah within two months from today. The arrears of rent as well as the cost so deposited can be withdrawn by the respondent-landlord without furnishing any security within two months from the date of deposit. In case the petitioner falls to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.