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2009 DIGILAW 1419 (ALL)

RUKMUDDIN v. ABDUL NADEEM

2009-04-16

PRAKASH KRISHNA

body2009
PRAKASH KRISHNA, J. Challenging the legality and validity of the order dated 24. 1. 2009, passed by the Additional District Judge, Court No. 21, Gorakhpur in Rent Appeal No. 3 of 2008, the present writ petition has been filed by the tenants. 2. The Court below, by the impugned order, has released only a part of the disputed shop in favour of the respondent landlord. As application for re lease under section 21 (1) (a) of U. P. Act No. 13 of 1972 was filed on the allega tions that the respondent landlord is carrying on his business from a small shop having frontage of 4. 5 ft. wherefrom he is selling cosmetics etc. He applied for release of 4 ft. further so that frontage may be increased to 8. 5 ft. The said re lease application was contested by the petitioners on the ground that the need of the landlord is not bonafide and genuine. The Prescribed Authority, by the order dated 5. 3. 2008, dismissed the release application on the ground that if a part of the accommodation is released, tenants business would be affected. There was a dispute as to whether the frontage of the petitioners shop is 12 ft or 10 ft. The Prescribed Authority took the view that if 4 ft. is released from the frontage, the shop in possession of the tenants would be reduced to 6 ft. which would be insufficient to carry on the business. 3. The said order in appeal has been set aside by the Court below, by the impugned judgment. 4. Sri Govind Krishna, learned Counsel for the petitioners submits that if the impugned order is allowed to stand, it would be very difficult for the peti tioners to carry out the business from the remaining portion of the shop. Elaborating the arguments, he submits that form the disputed shop two brothers namely Rukmuddin and Nuruddin are carrying on the business and their business would be affected. 5. The learned Counsel for the respondent, on the other hand, submits that he being the landlord is carrying on the business from a shop having only 4 ft. width, while according to the own showing of the petitioners, the width of their shop is at least 10 ft. Elaborating the arguments, he submits that if 4 ft. 5. The learned Counsel for the respondent, on the other hand, submits that he being the landlord is carrying on the business from a shop having only 4 ft. width, while according to the own showing of the petitioners, the width of their shop is at least 10 ft. Elaborating the arguments, he submits that if 4 ft. width is released, even then, the petitioners would be able to carry on their business. 6. Considered the respective submissions to the learned Counsel for the parties and perused the record. 7. So far as the question of bona fide need is concerned, the Appellate Court has rightly reversed the findings of the Prescribed Authority, On the admitted facts, the landlord respondent is having a shop having only 4 ft. width and if he has applied for release of a portion of disputed accommodation to the extent of 4 ft. more, it cannot be said that the landlord has, in any man ner, acted malafide or his need is not bonafide and genuine. Apart from the above, the said finding is essentially a finding of fact and the view taken by the Appellate Court is plausible one and it cannot be said that the said view of the Court below is, in any manner, arbitrary or not based on any material on record. There is nothing on the record to show that any attempt was made by the tenants to find out any alternative accommodation. 8. A new point was sought to be raised by the learned Counsel for the peti tioners that the remaining portion of the shop in dispute does not belong to the respondent landlord. The said contention was refuted by the learned Counsel for the respondent. Since the said point has not been examined by either of the Courts below, it is not necessary for this Court to examine the said issue. 9. It point was sought to be raised by the learned Counsel for the re spondent that the sketch map filed by the petitioners along with the writ pe tition is not true copy of the Commissioners map. He submits that certain things have been added in the sketch map filed along with the writ petition. Learned Counsel for the respondent placed before me a certified copy of sketch map. Its perusal would show that there is some substance in his arguments. 10. He submits that certain things have been added in the sketch map filed along with the writ petition. Learned Counsel for the respondent placed before me a certified copy of sketch map. Its perusal would show that there is some substance in his arguments. 10. The writ petition is concluded by findings of fact. No interference is called for. 11. The writ petition is dismissed summarily. 12. At the end, the learned Counsel for the petitioners prayed that some reasonable time be granted to vacate the released portion to which the learned Counsel for the respondent has no serious objection. 13. Time upto 31. 8. 2009 is granted to vacate the released portion, provide the petitioners file an undertaking on affidavit before the Prescribed Authority within a period of one month that they will vacate the released portion and will handover its vacant peaceful possession to the respondent landlord on or before 31. 8. 2009 and shall also deposit entire arrears of rent for the period upto 31. 8. 2009, in advance, within the aforesaid period. In case of default in compliance of either of the conditions, stipulated above, the time granted under this judgment shall stand discharged and the respondent land lord will be at liberty to put the release order for execution. Petition Dismissed. .