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2007 DIGILAW 115 (ALL)

KASTOORI DEVI v. KAILASH NARAIN

2007-01-12

RAKESH TIWARI

body2007
RAKESH TIWARI, J. Heard Counsel for the parties and perused the record. 2. This writ petition is directed against impugned orders dated 9-12-2005 passed by the Prescribed Authority and 11-12-2006 passed by the appellate Court. Both the Courts below have recorded concurrent finding of fact that need of the landlord for the accommodation in dispute under the tenancy of the petitioners is bona fide and genuine and his comparative hardship is greater than the tenants. 3. The petitioner has prayed for quashing of the aforesaid two impugned orders, appended as Annexures 14 and 15 respectively to the writ petition and for a direction in the nature of mandamus commanding the respondent not to dispossess the petitioners from the accommodation in dispute in pursuance of the impugned orders. 4. The facts of the case as culled out from record are that Sri Kailash Narain is landlord of house in dispute, which is situated in Mohalla Mandi Jawaharganj, Town Jaleshar, District Etah. Petitioners are tenants on the first floor of the aforesaid premises consisting of two room admeasuring 6 ft x 8 ft each, a small courtyard, latrine/bathroom and kitchen on a monthly rent of Rs. 30/ -. 5. The premises in dispute was taken on rent by Sri Ramesh Chandra Gupta, the husband of Smt. Kastoori Devi, petitioner No. 1. She claims that she is living in the accommodation in dispute with her two sons- Sri Dilip Kumar Gupta and Sri Pradeep Kumar Gupta, respondent Nos. 2 and 3 in the present writ petition. 6. The landlord filed release application under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent Eviction) Act, 1972 (hereinafter referred to as u. P. Act No. XIII of 1972), which was registered as P. A. Case No. 17 of 1997, Kailash Narain v. Ramesh Chandra Gupta, for release of the tenanted accommodation for his residential use on the ground of bona fide need and comparative hardship. The case of the landlord was that the tenant-Sri Ramesh Chandra Gupta had already purchased landed property, as such, he will suffer less hardship than the landlord, whose need and hardship was more looking into the number of members of his family who were living in only three small rooms. 7. The case of the landlord was that the tenant-Sri Ramesh Chandra Gupta had already purchased landed property, as such, he will suffer less hardship than the landlord, whose need and hardship was more looking into the number of members of his family who were living in only three small rooms. 7. The tenant-late Ramesh Chandra Gupta filed written statement denying the plaint allegations inter alia that the landlord had earlier filed S. C. C. Suit No. 7 of 1981 which was dismissed vide judgment and order dated 5-8-1988. Thereafter, he filed another S. C. C. Suit No. 27 of 1993, which too was dismissed vide judgment and order dated 22-5-1998. It was averred in the written statement by the tenant that from one of the two rooms he was carrying on business of photography for livelihood of his family and the other room was being used for residential purpose. 8. The tenant-Sri Ramesh Chandra Gupta died during the pendency of the suit and the petitioners were substituted as his legal heirs and representatives. They filed written statement on the grounds, inter alia, that the landed property alleged to have been purchased by late Sri Ramesh Chandra Gupta was under litigation. In this regard they also filed application of Smt. Kastoori Devi, petitioner No. 1 and affidavits of S/sri Raj Kumar, Vishambhar Dayal and Pradeep Kumar. It appears that two sons of the tenant had shifted to Delhi and were carrying on business of photography there. The petitioners also filed cash memos of Chopra Colour Photo Lab, Agra and P. L. Colour Lab in the name of Gupta Studio, Jaleshar showing that the petitioners were carrying on business of photography. 9. The landlord filed his own affidavit as well as the affidavits of Sri Pooran Singh Bharti and Sri Soran Singh. 10. The Prescribed Authority allowed the release application of the landlord vide judgment and decree dated 9-12-2005. 11. Aggrieved, the petitioners preferred Rent Appeal No. 1 of 2006 before District Judge, Etah under Section 22 of U. P. Act No. XIII of 1972 which was transferred to the Court of Additional District Judge/special Judge (E. C. Act) Etah, who dismissed the appeal vide impugned judgment and order dated 11-12-2006. 12. Aggrieved by the aforesaid judgments, the petitioners have invoked writ jurisdiction by means of the present writ petition. 13. 12. Aggrieved by the aforesaid judgments, the petitioners have invoked writ jurisdiction by means of the present writ petition. 13. Contention of Counsel for the petitioner is that the petitioners were carrying on the business of photography by using one of the tenanted rooms as Studio for their business and the other room for residential purpose. He submits that the business of photography being carried by the sons of petitioner No. 1-Smt. Kastoori Devi and Smt. Kastoori Devi, petitioner No. 1 (mother) has to render monetory help to him and the affidavits produced by the petitioners before the Courts below in support of their case have been overlooked by the Courts below. 14. It is further submitted that in these situations, one of the sons had to return back to Jaleshar who is continuing the business of photography in the Studio in the accommodation in dispute which was being run by his late father and has earned goodwill in the locality. It is stated that, the petitioners will suffer greater hardship in case they are evicted from the tenanted accommodation. 15. Lastly, Counsel for the petitioner urged that a room in his possession which is being used by him as store-room by him, which can easily be utilized for living after shifting the goods to his shop nearby. Thus, the need of the landlord would be mitigated. Counsel for the petitioner has placed implicit reliance on paragraph 12 of the written statement of late Sri Ramesh Chandra Gupta, the original tenant, which is as under: 16. After hearing Counsel for the petitioner and perusal of record, I find that following are admitted facts: (1) The two daughters of petitioner No. 1 have already been married; (2) Two of her sons have shifted to Delhi where they have established their independent business; (3) It is claimed by the petitioners that one of the sons has returned back to Jaleshar and is now carrying on the business of photography from one room of the tenanted accommodation which was being run by his late father; (4) Landed property purchased by late Sri Ramesh Chandra Gupta, the original tenant is under litigation; (5) One of the sons of the petitioner No. 1,who shifted to Delhi, is carrying on his independent business there. 17. 17. It is apparent from a bare perusal of the judgment of the appellate Court that all the findings of trial Court have been affirmed. It further appears that though the Courts below have given categorical finding of fact that late Sri Ramesh Chandra Gupta, the original tenant was not running his business of photography from the shop in the disputed accommodation but was running it in a shop situated in Mohalla Akbarpur, owned by erstwhile Chairman of Nagar Palika Parishad, Jaleshar. In face of this finding, there is no question of earning good will by the petitioners from any alleged shop, in one of the rooms of the accommodation, in dispute. 18. A categorical finding has also been recorded that the accommodation under the tenancy of the petitioners was given to late Sri Ramesh Chandra Gupta for residential purpose and the same cannot be used for commercial purpose. 19. The Courts below have further round that in view of the admitted position, two of the sons of petitioner No. 1 were doing their independent business in Delhi and are living there and that the petitioner No. 1 is also living there with them but she is keeping her materials in the accommodation in dispute with mala fide intention. The Courts below have also considered receipts regarding business being done by the petitioners and concluded that they do not show that the petitioners are carrying on any business from the accommodation in dispute. 20. Per contra, the Courts below have found from the affidavit of Sri Soran Singh that petitioner No. 1- Smt. Kastoori Devi is living with her sons at Delhi and that the evidence in the shape of aforesaid affidavit which has not been rebutted by the tenants. Accordingly, the appellate Court concurred with the conclusion arrived at by the Prescribed Authority that bona fide need and comparative hardship of landlord was greater than the tenants. The appellate Court concluded thus: 21. Accordingly, the appellate Court concurred with the conclusion arrived at by the Prescribed Authority that bona fide need and comparative hardship of landlord was greater than the tenants. The appellate Court concluded thus: 21. From the admitted facts that the sons of the petitioner No. 1 have settled in Delhi and are carrying on their own independent business at Delhi, though it is claimed that one of them has returned back to Jaleshar It is wholly irrelevant for the purpose of the Act whether their business is flourishing or not for the purpose of bona fide need and comparative hardship in view of explanation (i) to Section 21 (1) (a) of U. P. Act No. XIII of 1972 which provides that even if any of member of tenants family has acquired an alternate accommodation, the tenants contest the claim of need of the landlord on the ground that there is no bona fide need and comparative hardship shall be suffered by him. Explanation (i) to Section 21 (1) of the Act No. XIII of 1972 automatically applies to the facts of the instant case, which is as under : "explanation.- In the case of a residential building - (i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on his has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. " 22. In view of categorical concurrent findings of the Courts below that the mother-Smt. Kastoori Devi is living with her sons at Delhi and is holding the tenanted accommodation with mala fide intention, no interference in the writ jurisdiction is warranted. The Courts below have considered the question of genuine and bona fide need and comparative hardships of the landlord vis-a-vis the tenants and have found the need of the landlord to be genuine and greater than the hardship of the tenant-petitioners. 23. The contention of Counsel for the petitioner that one room, which is being used as store room would be sufficient for mitigating the hardship of the landlord and satisfy his need is misconceived. 23. The contention of Counsel for the petitioner that one room, which is being used as store room would be sufficient for mitigating the hardship of the landlord and satisfy his need is misconceived. Even if that room is taken into consideration, the need of the landlord cannot be satisfied by that small portion as he has a very large family having at least six married couples and children who cannot be accommodated in three room by the landlord. The married couples in the family of the landlord require at least a room each for their privacy, apart from the need of the children. 24. Noting the fact that it has come on record that late Sri Ramesh Chandra Gupta was running his business of photograph from the shop at Akbarpur and not from the disputed accommodation both the Courts below have disbelieved the case of the petitioners in this regard. The petitioners have failed to establish that they do not have alternate accommodation, hence, in view of explanation (i), quoted above, the Courts below have rightly arrived to the conclusion that the need of the petitioners- tenants is not genuine than the landlord. 25. Sri P. N. Khare, caveator states that the tenants have not paid rent since 1997. Counsel for the petitioner denies this fact and states that the petitioners have deposited the rent in Court but no details could be produced about deposit of rent. 26. It is directed that the petitioners will furnish details of payment of rent to the landlord within a week from today and the respondent-landlord shall be at liberty to withdraw the same within 15 days thereafter. If no deposit has been made by the petitioners, the arrears of rent shall be recoverable as arrears of land revenue within a month thereafter. 27. For the reasons stated above, the writ petition fails and is dismissed. Costs 28. If no deposit has been made by the petitioners, the arrears of rent shall be recoverable as arrears of land revenue within a month thereafter. 27. For the reasons stated above, the writ petition fails and is dismissed. Costs 28. So far as cost is concerned, Honble the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005 (3) JCLR 251 (SC) : AIR 2005 SC 3353 , 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. " 29. Thus from the law laid down by the Honble 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. 30. Following the ratio laid down in Salem Advocate Bar Association (supra), this Court in Civil Misc. for the purpose of adjournment. 30. 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, 35- A and 35-B of the Code of Civil Procedure 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. 31. Since it has been held by the Courts below that the petitioners have retained the disputed accommodation with ulterior motive and the instant frivolous petition has been filed by them, 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 petitioners will also pay cost of Rs. 10,000/- (Rupees Ten Thousand) which shall be deposited by the petitioners 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 petitioners fail to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue. .