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2008 DIGILAW 913 (ALL)

LUXMI DEVI BAJPAI v. KUMAR WOOLLEN MILLS

2008-04-23

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) THIS writ petition has been filed by the landlady for setting aside the judgment and order dated 14th October, 2004 passed by the learned Additional District Judge, Court No. 5 Kanpur Nagar by which the appeal filed by the tenant under section 22 of the U. P. Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the act) against the order of the Prescribed Authority was allowed and the application filed by the landlady under section 21 (1) (a) of the Act for eviction of the tenant from the shop in dispute was rejected. ( 2 ) NOTICES were issued to the respondents. In view of the office report dated 11th December, 2006 service of notice of the writ petition on the respondents was found to be sufficient as is clear from the order dated 1st August, 2007 no one has put in appearance on behalf of the respondents and nor has any counsel appeared for the respondents even in the revised list. ( 3 ) I have heard learned Counsel for the petitioner and have examined the materials available on record. ( 4 ) THE records of the writ petition indicate that the landlady filed an application under section 21 (1) (a) of the Act that she was the owner of the shop in dispute; that the shop was required for the need of her third son Amar nath Bajpai who was a practicing lawyer in the Civil Court, Kanpur Nagar and bonafide required the shop for his chamber; that the shop in question was lying locked for the last five years and that the landlady was likely to suffer greater hardship in the event the application was rejected. ( 5 ) A reply was filed mentioning therein that the applicant was not the sole landlady and owner of the shop in dispute as she became the owner along with her four sons and was only the co-landlady and that her son Amar Nath bajpai for whom the need has been set up was not doing any practice. ( 6 ) THE Prescribed Authority allowed the application by the order dated 26th March, 2004. An Appeal was filed by the tenant under section 22 of the Act which has been allowed and the application filed by the landlady has been dismissed. ( 6 ) THE Prescribed Authority allowed the application by the order dated 26th March, 2004. An Appeal was filed by the tenant under section 22 of the Act which has been allowed and the application filed by the landlady has been dismissed. ( 7 ) SRI Vinod Sinha learned Counsel appearing for the petitioner submitted that the Appellate Court fell in error in holding that the landlady did not bonafide require the shop for the need of her son to establish his chamber. He further submitted that even the Appeal was not competent as it was not signed by the appellants as was required to be done in view of the provisions of Rule 7 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the rules ). Elaborating his submissions he contended that the Appellate Court observed that Amar Nath Bajpai for whom the need was set up was actually in possession of three rooms in House no. 49/24 General Ganj, Kanpur Nagar and out of these three rooms, two rooms were situated on the second floor while one room was situated on the first floor rut this is factually incorrect as Amar Nath Bajpai acquired only two rooms, under the will and both these rooms were situated on the second floor. He, therefore, contended that the finding recorded by the Appellate Court that he could reside in the two rooms on the second floor and set up his chamber in the room on the first floor was perverse. In this connection he has placed before the court the will executed by the father and from the same has pointed out that only two rooms on the second floor were bequeathed to Amar Nath Bajpai. His contention is that the two rooms on the second floor are for residential purposes and cannot be utilized for his chamber. ( 8 ) THE Supreme Court has time and again explained what bona fide need is in Siddalingamma and another v. Mamtha Shenoy, 2002 46 ALR (SC) 18, the Supreme Court pointed out:- "rent Control Legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. In Shiv sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 6 SCC 222 this Court has held that a bona fide requirement must he an outcome of a sincere, honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts, by placing himself in the place of the landlord is, whether in the given facts proved by material on record the need to occupy the premises can be said to be natural, real, sincere honest? If the answer be in the positive the need is bond fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself dwell into lesser premises so as to protect the tenants continued occupation intenancy premises. . . . . . . . . . . . . . . . " (emphasis supplied) ( 9 ) THE Supreme Court in Sarla Ahuja v. United India Insurance Co. Ltd. , AIR 1999 SC 100 , also observed:- ". . . . . . . . . . . . When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. " ( 10 ) IN Mst. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. " ( 10 ) IN Mst. Bega Begum and others v, Abdul Ahad Khan (dead) by LRs. and others, AIR 1979 SC 272 the Supreme Court observed:- "moreover, section 11 (1) (h) of the Act uses the words reasonable requirement which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even genuine need as nothing but a desire as the High Court has done in this case. It seems to MS that the connotation of the term need or requirement should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course, would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word requirement and pointed out that it merely connotes that there should be an element of need. " (emphasis supplied) ( 11 ) THIS Court in Sardar Kulwant Singh v. Vlth Additional District Judge, saharanpur and another, 2007 66 ALR 498, has observed that the need of the landlrod to establish a lawyers chamber is bona fide. ( 12 ) IT is in the light of the aforesaid principles that it has to be seen whether the need of the landlady for establishing a chamber for her Advocate son from the shop in dispute is bona fide. ( 13 ) THE son of the landlady Amar Nath Bajpai for whom the need was set up is in possession of two rooms on the second floor of House No. 49/24, General ganj, Kanpur Nagar. These two rooms are being utilised by him for residential purposes. The lawyers chamber has to be an independent unit with space for the lawyer, his staff and library. These two rooms are being utilised by him for residential purposes. The lawyers chamber has to be an independent unit with space for the lawyer, his staff and library. It cannot, therefore, be said that the chamber can be established in one of the two rooms on the second floor. The need of the landlady is certainly sincere and honest. It has, therefore, to be held that the landlady bona fide required the shop in dispute for the purposes of establishing the chamber for her son. ( 14 ) THE comparative hardship is now required to be examined. The appellate Court has, in the present case recorded a categorical finding that the shop in dispute was lying locked and no business was being carried out. The prescribed Authority had observed that the landlady was likely to suffer greater hardship in the event the application was rejected. The Appellate court has only observed that since there was no bona fide need the question of comparative hardship would not arise. The need of the landlady has been found to be bona fide. There is also nothing on the record to indicate that the opposite parties made any effort during the pendency of the application to find out any alternative accommodation. The balance of hardship will, therefore, tilt in favour of the landlord as observed by this Court in Faiyaz Khan v. 2nd additional District Judge, Jhansi and others, 2006 62 ALR 908. This Court made the following observation:- "appellate Court also examined the question of bonafide need thoroughly and recorded independent finding to the effect that need of the landlord Faiyaz Khan to settle his son Sarfaraz Khan in business was quite bona fide (now Saifaraz Khan is one of the petitioners substituted after the death of original petitioner Faiyaz Khan ). All the Courts at every stage held that Sarfaraz Khan was not doing any regular job and mere fact that he had a tempo did not satisfy his need. If for want of proper accommodation to start business landlord or any of his family members engages himself in temporary and casual jobs, it does not satisfy or substantially mitigate the need vide: Ramkubai v. H. D. Chandak, 1999 37 ALR 837. Concept of comparative hardship cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. Concept of comparative hardship cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town dr. Amin was having a clinic even though he asserted that he attended that only off and on. In any case tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. As held by the Supreme Court in B. C. Bhutada v. G. R. Mundada, AIR 2003 SC 2713 , this by itself was sufficient to tilt the balance of hardship against the tenant. " ( 15 ) THUS, the landlady was likely to suffer greater hardship in the event the application was rejected. ( 16 ) EVEN otherwise, the Appeal filed under section 22 of the Act was not competent inasmuch as it has not been signed by the appellants. Rule 7 of the rules provide that every Appeal or Revision under the Act shall be preferred in the form of memorandum signed by the appellant and his Counsel and shall be presented either in person or through counsel to the District Judge or to the munsarim. The Appellate Court has rejected this contention in view of the provisions of Order XLI, Rule 1 of the Code of Civil Procedure 1908 (hereinafter, referred to as cpc) which provides that the memorandum of appeal can be signed by the appellant or his pleader. ( 17 ) AS noticed hereinabove, Rule 7 provides that the Appeal shall be signed by the appellant as well as the pleader. The provisions of Order XLI, rule 1, C. P. C. will have no application when the same have not been made applicable under section 34 of the Act. ( 18 ) THUS, for all the reasons stated above, the writ petition is liable to be allowed and is, accordingly, allowed. The judgment and order dated 14th october, 2004 passed by the Appellate Court is set aside and the order passed by the Prescribed Authority is restored. Petition Allowed. .