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2009 DIGILAW 2202 (ALL)

PRINCE AGRAWAL v. PRASANNA MADHAV VYAS (DEAD)

2009-05-11

D.P.SINGH

body2009
JUDGMENT D.P. SINGH, J.--Heard learned Counsel for the petitioner and the learned Standing Counsel. 2. This petition is directed against a appellate order dated 8.3.2007 setting aside the order of release passed by the Judge Small Causes Courts and rejecting the application moved on behalf of the petitioner. 3. The respondent-tenants are in occupation of House No. 115 situate at Mohalla Vaidraj in Jhansi as tenants at the rate of Rs. 35/- per month and the petitioner is the sold landlord thereof. The petitioner made an application under section 21 (1) (a) and 21 (1) (b) of U.P. Act No. 13 of 1972 before the Judge Small Causes Courts for release of the house in dispute. The case set up was that the petitioner was doing his M.D. in Russia and required the disputed accommodation for his residence on his return and also as he was about to get married. It was further stated that at the moment the accommodation in which he is residing with his mother and sister, being House No. 47 Chaturyana in Jhansi, was not sufficient for him as his mother and sister were running a convent school for their livelihood. It was further asserted that the disputed premises were in dilapidated condition and thus, the petitioner requires it after reconstruction for which he has sufficient funds. 4. The tenant-respondents contested the said application on the ground that the petitioner had sufficient accommodation in House No. 47 and the disputed constructions were not in dilapidated condition. 5. A survey commiss.ion was issued by the Trial Court who submitted his report dated 15.10.2005 and 24.2.2006 to show that the disputed premises are more than 70 years old where walls have cracked and was in dilapidated condition and the second report showed that only two living rooms were available in House No. 47. 6. The Trial Court allowed the application upholding the bona fide need of the petitioner and also that the disputed premises were in a dilapidated condition. On appeal the Appellate Court found that the need was not bona fide but since a school was being run in a residential premises which was not justified, allowed the appeal and rejected the application. 7. On appeal the Appellate Court found that the need was not bona fide but since a school was being run in a residential premises which was not justified, allowed the appeal and rejected the application. 7. Learned Counsel for the petitioner has urged that the entire approach of the Appellate Court was unreasonable and it did not even take into account the evidence, including two Amin reports, and only adopting a sympathetic attitude has allowed the appeal. 8. The Trial Court, after considering the case of the parties and the Commissioner's report had recorded a categorical finding that in House No. 47 of only two rooms were available for residential purposes and in the rest 'Harsh Convent School' is being run by the mother and sister for their livelihood. The Appellate Court, though has found that only two rooms were available, but it went on to hold that since a school is being run in a residential building, could not be a ground to hold that the need was bona fide. It has come on record and is not denied that the school was being run in the premises since before 1993 and assuming there was any infraction of the municipal rules, which has not been demonstrated, would not by itself make the need mala fide. The petitioner is a doctor and so is his wife, they have a child and are entitled to live in peace with some dignity. The two rooms available in House No. 47 could not be said to be sufficient for the three and his mother. He cannot be forced by the tenant to stay put in that house where even the available two rooms are on different floors. Considering all the facts in its totality, the finding of the prescribed authority on the question of bona fide was based on evidence and it was justified in holding that the need was bona fide and the very approach of the Appellate Court was perverse. 9. It is then urged that the Apex Court has only on sympathical consideration found the balance of convenience in favour of the tenant. 10. Under Rule 16 of the Rules framed under the Act, various parameters have been provided while considering the comparative hardship of the landlord qua the tenant. 9. It is then urged that the Apex Court has only on sympathical consideration found the balance of convenience in favour of the tenant. 10. Under Rule 16 of the Rules framed under the Act, various parameters have been provided while considering the comparative hardship of the landlord qua the tenant. The Apex Court in this case of Ganga Devi Y. District Judge, Nainital and others1 while considering the said scheme provided in Rule 16 has held that: 1. 2008 (72) ALR 426 (SC). "The Court would not determine a question only on the basis of sympathy or sentiment. Stricto sensu equity as such may not have any role to play." 11. The Appellate Court on this aspect has held in favour of the tenant that she is a widow with a meagre income and has to look after his children. On the availability of another residential accommodation it has held that the alleged house which is available to the tenant is situated in rural area and since it was old tenancy, the tenant would suffer greater hardship. 12. As already mentioned above, equity follows law and so does sympathy. If the factors mentioned in Rule 16 are considered, taking into consideration the facts of this case, no doubt is an old tenancy but there is nothing to show any real efforts were made by the tenant to find another accommodation despite the fact that even the father of the petitioner had filed an application for bona fide need in 1993 itself. The husband and wife both are doctors and have rented out an accommodation to practice. Considering their status, the standard of living, it cannot be said that they should be forced to rent out another building for their residential need. The Trial Court has taken all the relevant factors into consideration and has recorded, and rightly so, that the landlord would suffer greater hardship on the fads of this case, if his application is rejected. Thus, this finding of the Appellate Court cannot be sustained and that of the Trial Court has to be accepted. 13. The Trial Court has taken all the relevant factors into consideration and has recorded, and rightly so, that the landlord would suffer greater hardship on the fads of this case, if his application is rejected. Thus, this finding of the Appellate Court cannot be sustained and that of the Trial Court has to be accepted. 13. It is then urged that the Trial Court on the basis of the evidence on record, including the Amin's report, had recorded categorical finding with regard to the fact that the building was in dilapidated condition and was dangerous to live in but erroneously the Appellate Court, merely on the ground that it was still in the occupation of the tenant, held that it was not in a dangerous condition. 14. Though the Appellate Court has mentioned about the report of the Amin but it has not at all considered it. The Amin in his rerort dated 1.10.2005 has found as a matter of fact that the partially tiled premises and roof supported by wooden beams which had worn out. There were cracks on the roof and in the wall and they were reclining dangerously. Even heavy walk on the first floor vibrates the structure. 15. A learned Single Judge of this Court in the case of Harish Chandra Gupta v. Swantantra Kumar Jain and others1 after relying upon several decisions has held that law does not require that a building should be in imminent danger of falling down to be treated in a dilapidated condition. There was sufficient evidence on record to show that the building which is about 70 to 80 years old was in a dilapidated condition and, therefore, merely because the tenant was residing in it would not be of any consequence. The law nowhere requires that a Government agency should submit a report with regard to the condition of the disputed building and merely because on an earlier occasion a release application had been filed would not mean that the evidence and the report on record cannot be looked into. Consequently on this score also, the judgment of the Appellate Court cannot be sustained. 1. 1999 (36) ALR 314. 16. For the reasons given above, this petition succeeds and is allowed and the appellate order dated 8.3.2007 is quashed and that of the Judge Small Causes Courts is affirmed. 17. Consequently on this score also, the judgment of the Appellate Court cannot be sustained. 1. 1999 (36) ALR 314. 16. For the reasons given above, this petition succeeds and is allowed and the appellate order dated 8.3.2007 is quashed and that of the Judge Small Causes Courts is affirmed. 17. In the facts and circumstances of the case, in case the petitioner gives an undertaking within a period of three weeks from today before the Judge Small Causes Courts to hand over vacant possession of the disputed premises to the petitioner-landlord within six months from today and keeps on paying the entire rent and damages till that period, she would not be evicted for a period of six months. In case of default the petitioner would be liberty to evict the respondent in accordance to law. No order as to costs. Petition Allowed.