Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 673 (ALL)

MULAKHRAJ v. LAJPAT RAI VARSHNEY

2008-03-26

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) -THE tenant has filed this petition for setting aside the order dated llth August, 2006 passed by the prescribed authority by which the application filed by the landlord 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) for eviction of the tenant from the disputed shop, was allowed. The petitioner has also sought the quashing of the judgment dated 12th March, 2008 by which the appeal filed by the tenant under section 22 of the Act of setting aside the aforesaid order of the prescribed authority, was dismissed. ( 2 ) AN application under section 21 (1) (a) of the Act was filed by the landlord with the allegation that the opposite party was a tenant of the disputed shop on a monthly rent of Rs. 275/-; that the applicant No. 1-Lajpat Rai was a teacher in the primary school and only two years were left for his retirement; that because of the low salary he was unable to properly maintain his family which consisted of himself, his wife, two sons, four daughters and his mother; that his eldest son Saurabh had done his B. Sc. while his second son was studying in Class VIII; that looking to his financial position, the only option left with him was to establish his son Saurabh in business of ready-made garments; that there was no other shop available with the landlord from where Saurabh could start this business; that the two door tenanted shop in possession of the opposite party remained closed and no business was being carried out from that shop; that the tenant also in possession of two shops of which Mulakhraj was the landlord just opposite the tenanted shop and that the tenant along with his two sons was carrying the business of selling wheat and also had a wheat grinding machine and that in such circumstances when the tenanted shop was kept closed and the tenant along with sons was also doing business from two shops right across from the tenanted shop, the landlord was likely to suffer greater hardship In the event the application was rejected. ( 3 ) A reply to the aforesaid application was filed by the tenant. ( 3 ) A reply to the aforesaid application was filed by the tenant. It was stated that Saurabh was still studying and so there was no need to do business; that the tenanted shop was not suitable for doing business of ready-made garments as the entire market in the vicinity of the shop was of general merchant and vegetable sellers; that the landlord had many properties and the shop in question was not required for business purpose; that it was wrongly stated by the landlord that the shop in question remained closed and the tenant was not doing any business from that shop, because if this was so the landlord would not have kept quiet for the last twelve years and would have got vacancy declared under section 12 of the Act; that the shop opposite the tenanted shop is in the tenancy of the opposite party and his brother Hans Raj and in this shop a wheat grinding machine is installed which is run by the two sons and that the tenant was carrying business of food against from the shop in dispute. It was, therefore, stated that in such circumstances the application was liable to be rejected. ( 4 ) VARIOUS affidavits were filed by the parties. The prescribed authority allowed the application filed by the landlord holding that the shop was bona fide required for establishing the business of ready-made garments for the eldest son Saurabh of applicant No. 1 and that the landlord was likely to suffer greater hardship in the event the application was rejected. ( 5 ) IN respect of the bona fide, the prescribed authority found that the contention of the tenant that Saurabh the eldest son of Lajpat Rai would not be doing business since he had done M. Sc. in Geology, was not correct because looking to the needs of the family, the contention of the landlord and Saurabh that Saurabh needed the shop for doing business for ready-made garments should be believed. It was contended on behalf of the tenant that on the first floor of the building there were two rooms out of which one room was vacant which could be utilized by Saurabh for doing the business of ready-made garments. It was contended on behalf of the tenant that on the first floor of the building there were two rooms out of which one room was vacant which could be utilized by Saurabh for doing the business of ready-made garments. The prescribed authority found that one room on the first floor was occupied by another tenant and the other room was utilized by the appellant No. 2-Nav Ratan Kumar for storing the materials of the shop from where he was doing business. In such circumstances, the prescribed authority found that none of the rooms of the first floor were available to Saurabh for doing his business. It was also contended by the tenant that the report submitted by the Amin also indicated that there was a godown and a kothari owned by the landlord, which could be utilized by Saurabh for his business. The prescribed authority accepted the case set up by the landlord that this kothari and godown were situated far away from the main road and were not suitable for the business purpose and that the godown was also in a very dilapidated condition. The Appellate Court has confirmed the findings of the prescribed authority. ( 6 ) LEARNED Counsel for the petitioner placed much emphasis on the fact that there was a kothari at the back where Saurabh could do the business. In the first instance, as noticed above, it has been found by the prescribed authority that the said kothari was not suitable at all for doing the business of ready-made garments and secondly the said kothari was found to be in possession of Hans Raj. ( 7 ) LEARNED Counsel for the petitioner suggested that the said kothari could be made available to the tenant. This suggestion has not been accepted by the learned Counsel for the landlord who has contended that just opposite the tenanted shop, the tenant had two shops in his tenancy from where the business was being done. ( 8 ) IT is not in dispute that just opposite the tenanted shop the tenant has available with him a shop. The case of the tenant is that two sons were doing the business of selling of the food grains and also running wheat grinding machine. The tenant also claimed to be doing the business of selling wheat from the shop in dispute. The case of the tenant is that two sons were doing the business of selling of the food grains and also running wheat grinding machine. The tenant also claimed to be doing the business of selling wheat from the shop in dispute. In such circumstances, the tenant can continue this business from the shop just across the tenanted shop. ( 9 ) THE prescribed authority as well as the appellate authority have both found, on appraisal of evidence that the need of the landlord to establish his son in business to be bona fide. Such a need is bona fide in view of the decisions of the Supreme Court in Sushila v. IInd Additional District Judge, Banda and others, 2003 (52) ALR 160 (SC)=2003 (9) AIC 156. and Akhileshwar Kumar and others v. Mustaquim and others, AIR 2003 SC 532 =2003 SCFBRC 137. ( 10 ) THE prescribed authority as well as the appellate authority have also concluded that the landlord was likely to suffer greater hardship in the event the application was rejected, ( 11 ) IN the present case, the landlord wanted to establish his son Saurabh in business from the tenanted shop. The tenant, on the other hand, had available with him a shop just across the tenanted shop. The finding recorded by the prescribed authority and the appellate authority are based on appraisal of evidence. ( 12 ) THE Supreme Court in Munni Lal and others v. Prescribed Authority and others, AIR 1978 SC 29 =1981 ARC 470. observed that while examining the findings of bona fide need and comparative hardship of landlord and tenant it is not for the High court in the exercise of its jurisdiction under Article 226 of the Constitution to reappraise the evidence and come to its own conclusion which may be different form that reached by the District Judge or the prescribed authority. In such circumstances, the impugned order call for no interference under Article 226 of the Constitution. ( 13 ) THUS, there is no merit in this petition. It is, accordingly, dismissed. No order as to costs. March 26, 2008 ( 14 ) AFTER the judgment was pronounced learned Counsel for the petitioner prayed that some reasonable time may be given to the petitioner to vacate the shop. ( 13 ) THUS, there is no merit in this petition. It is, accordingly, dismissed. No order as to costs. March 26, 2008 ( 14 ) AFTER the judgment was pronounced learned Counsel for the petitioner prayed that some reasonable time may be given to the petitioner to vacate the shop. ( 15 ) THE petitioner shall not be ejected from the shop in dispute for a period of six months from today provided the petitioner gives the following undertaking before the Court below within three weeks from today : 1. That the petitioner shall pay damages at the rate of Rs. 500/- per month beginning from the month of April, 2008 up to the date he handsover the possession of the shop to the landlord. 2. That the petitioner shall not induct any other person in the shop. 3. That the petitioner shall handover peaceful possession of the shop to the landlord on or before the expiry of six months. ( 16 ) IT. is made clear that in the event the petitioner fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, then in that case, it will be open to the landlord to get the decree executed. Petition Dismissed. .