Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 1217 (ALL)

LALA RAM NATH v. VTH ADDL DISTRICT JUDGE ETAWAH

2009-04-08

PRAKASH KRISHNA

body2009
PRAKASH KRISHNA, J. The petitioner Lala Ram Nath, who has died during the pendency of the writ petition, filed an application for release of the shop under Section 21 (1) (a) of U. P. Act No. 13 of 1972 against the respondent no. 2 Smt. Sona Devi which was registered as P. A. Case No. 31 of 1984, for release and ejectment of the respondent no. 2. 2. The release of the disputed shop, situate in Mohalla Home Ganj, was sought by the landlord to settle his son Prem Behari in the disputed shop. The allegation was that he is not doing any business. He has completed his education upto M. A. and is sitting idle due to non-availability of any shop. It was further pleaded that most of the time, the disputed shop remains closed, as the respondent tenant is carrying on business of selling Khowa (milk cake) from her residence. The said application was contested on the pleas inter- alia that Prem Behari is not sitting idle and he is carrying on the business from a shop situate in village Bijpuri Kheda, at Mainpuri Road. The allegation that Prem Behari is sitting idle was hotly contested by the respondent tenant. 3. The parties led evidence in support of their respective cases. 4. The Prescribed Authority initially dismissed the release application on the ground that the need as set up by the landlord is not bonafide and genuine. The said order was carried in appeal by the petitioner. The said appeal was allowed by the judgment and order dated 25-9-1989 and the matter was remanded back with certain directions to the Prescribed Authority to redecide the release application. The appellate court found that the need as set up by the landlord is bonafide and genuine. The matter was remanded back to record proper findings on the question of comparative hardship. After remand, the matter was reconsidered by the Prescribed Authority. During the pendency of the proceedings, after remand, an application was filed by the respondent tenant on the ground that certain new developments have taken place, as a result thereof, the need as set up by the landlord has vanished. After remand, the matter was reconsidered by the Prescribed Authority. During the pendency of the proceedings, after remand, an application was filed by the respondent tenant on the ground that certain new developments have taken place, as a result thereof, the need as set up by the landlord has vanished. The Prescribed Authority, after remand, allowed the release application on the findings that the need as set up by the landlord is bonafide and genuine and it is the landlord, who will suffer greater hardship, in case the release application is rejected, vide order dated 19-9-1991. This order was challenged in P. A. Appeal No. 13 of 1991, at the instance of the respondent tenant. The appellate court, by the impugned order dated 4-3-1993, allowed the appeal on the finding that the need is not bonafide and genuine and set aside the order of the Prescribed Authority and rejected the release application filed by the landlord. 5. The appellate court, on the earlier occasion found that the need of landlord is bonafide one, but on the question of comparative hardship the matter was remanded, to find out if the tenant could shift the business elsewhere at her residence in particular. It was, thus, not an open remand order. 6. Learned counsel for the petitioner, in support of the present writ petition, submits the following two points:- (1)The question of bonafide need was not open to be examined either by the Prescribed Authority or by the appellate authority as the said finding on the question of bonafide need had attained finality. In the earlier order passed by the appellate court remanding the matter it was held that the need set up by the landlord is bonafide and genuine and was not subject- matter of challenge any further before higher court. (2)The finding recorded by the appellate court on the question of comparative hardship is vitiated, the litigation has been pending since the year 1984 and the tenant has not taken any steps to get another accommodation. The property in dispute was earlier in the tenancy of father of the tenant and after his death, the tenancy right has been devolved upon the present tenant being daughter of the deceased tenant. 7. The property in dispute was earlier in the tenancy of father of the tenant and after his death, the tenancy right has been devolved upon the present tenant being daughter of the deceased tenant. 7. Learned counsel for the contesting respondent, on the other hand, submits that after passing of the remand order, certain new developments have taken place and it transpired that Prem Behari is gainfully employed and engaged in other business. Elaborating the arguments, it was submitted that since it has come on record that the tenant has got no shop, the appellate court has not committed any illegality by passing the impugned order. 8. Considered the respective submissions of the learned counsel for the parties and perused the record. 9. It is no longer in dispute that when the matter came up earlier in appeal, being P. A. Appeal No. 1 of 1988, the appellate court examined the question of bonafide need. On examination of material on record, the appellate court recorded a finding that the need of the landlord to establish his son Prem Behari is bonafide and genuine. The said finding has been recorded in paragraph-6 of the judgment. It is also not in dispute that the said finding was not challenged before any higher court by the tenant. This being so, the finding recorded by the first appellate court has become final and was no longer open for examination either by the Prescribed Authority or by the court below. 10. Learned counsel for the respondent has placed reliance upon a judgment of Apex Court in Satyadham Ghoshal and others Vs. Smt. Deorajin Debi and another, AIR 1960 SC 941 , paragraph-16 in particular. It has been held therein that when an interlocutory order, which had not been appealed from order either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. 11. Further, reliance was placed upon Kalyani Prasad Vs. IInd Additional District Judge and others, 1987 ALJ 796 wherein it has been held that when an order of remand passed by a court in revision is not challenged, it can be challenged in writ petition against final order. 12. There is no quarrel to the above proposition of law. 11. Further, reliance was placed upon Kalyani Prasad Vs. IInd Additional District Judge and others, 1987 ALJ 796 wherein it has been held that when an order of remand passed by a court in revision is not challenged, it can be challenged in writ petition against final order. 12. There is no quarrel to the above proposition of law. But, it is a different thing to say that the question of bonafide need could not have been examined, after remand, by the Prescribed Authority, who is lower in hierarchy than the appellate court. Even the first appellate court could not have examined the question of bonafide need after remand, as it is a court of coordinate jurisdiction. 13. Learned counsel for the contesting respondent then urged that this Court may examine the question of bonafide need again. He submits that the appeal has been decided in his favour by the court below after remand and the tenant could not file any writ petition. 14. On careful consideration of the above submission, I do not find it appropriate to reopen the question of bonafide need at this distance of time. According to the respondent tenant, it has transpired now that the landlord has other businesses which is refuted by the learned counsel for the petitioner. This is a matter which cannot be examined on the basis of affidavits in writ proceedings. Since the matter is old one and the tenant had opportunity to challenge the remand order by way of filing writ petition, I am of the considered view that the said point cannot be reopened now. In other words, I find sufficient force in the argument of the learned counsel for the petitioner that the question of bonafide need has attained finality and it stands concluded that the need of the landlord to settle Prem Behari in an independent business is bonafide and genuine one. Even otherwise also, the view taken by the appellate court htat it is appropriate to Prem Behari to carry on the business of foodgrain on commission agency along with his father who is a aged person, instead of fertilizer business which he intends to carry on from the disputed shop, is not legally sustainable. A court or any body else is not expected to advice the landlord to carry on a particular business. A court or any body else is not expected to advice the landlord to carry on a particular business. It is the choice of the person concerned so long as the business is lawful and not prohibited to engage himself in a business or profession of his choice. 15. The Apex Court in Pratap Rai Tanwani and another Vs. Uttam Chand and another, 2004 AIR SCW 6858 has observed as follows:- "7. It is stark reality that longer is the life of the litigation the more would be the number of developments sprouting up during the long interegnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale after passing through all the previous levels of the litigation merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. The judicial tradiness, for which unfortunately our system has acquired notoriety causes the lis to creep through the time for long- long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many- many events are bound to take place which might happen in relation to the parties as well as the subject-matter of action is to be submerged in such subsequent events on account of the malady of the system it shatter the confidence of the litigant, despite the impairment already caused. " 16. Now the question of comparative hardship arises. It may be noticed that the release application was filed in the year 1984. " 16. Now the question of comparative hardship arises. It may be noticed that the release application was filed in the year 1984. There is nothing on record to show that any attempt was made by the respondent tenant to get another suitable accommodation during this period. 17. It is well settled that if the tenant has not taken any steps to take alternative accommodation during the pendency of the release application, the finding of comparative hardship, will necessarily go against him. 18. It has been held time and again by the Apex Court that a landlord cannot be denied his property permanently, for all times to come. The following observation is apposite and is extracted from Shakuntala Bai and others Vs. Narayan Das and others, JT 2004 (Suppl. 1) SC 538:- ". . . . There is no warrant for interpreting a Rent Control legislation in such a manner the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their properties for all times to come. " 19. Almost twenty five years are going to be passed and it is high time that the landlord should get possession of the disputed accommodation. The respondent tenant may be compensated in terms of money, as provided for under Section 21 (1 (a) of the Act in respect of commercial accommodation. 20. In view of the above discussions, the writ petition succeeds and is allowed, subject to deposit of damages equivalent to two years rent within a period of one month before the Prescribed Authority. The impugned order passed by the appellate authority is here set aside and the release order passed by the Prescribed Authority is restored. 21. Time to vacate the disputed premises is granted upto 30-9-2009, provided the respondent tenant files an undertaking on affidavit before the Prescribed Authority that she will vacate the disputed premises and handover its vacant peaceful possession to the heirs of the deceased petitioner on or before 30-9-2009. The tenant respondent shall also deposit the damages, arrears of rent, if any, within a period of one month for the period upto 30-9-2009. The tenant respondent shall also deposit the damages, arrears of rent, if any, within a period of one month for the period upto 30-9-2009. In case of default in compliance of either of the conditions, stipulated above, the time granted by this Court shall stand automatically vacated and the it will be open to the heirs of the deceased petitioner to apply for execution of the release order. No order as to costs. (Prakash Krishna, J.) .