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2009 DIGILAW 2521 (ALL)

Mohabbey Ali v. Tej Bahadur

2009-07-09

POONAM SRIVASTAV

body2009
JUDGMENT Heard Sri Ateeq Ahmad Khan, learned counsel for the petitioner and Sri Virendra Chaubey and Sri Iqbal Ahmad Advocates for the contesting respondents. 2. Counter and rejoinder affidavits have been exchanged which are on record. 3. The petitioner has challenged the judgment and order dated 13.7.2006 passed by the Additional District and Sessions Judge, Fast Track Court No. 5, J.P. Nagar in Rent Appeal No. 2 of 2004-Mohabbey Ali Vs. Tej Bahadur, confirming the judgment and order dated 9.8.2004 passed by the Prescribed Authority in P.A. Case No. 6 of 1996. 4. The respondents-landlord preferred an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred as the Act) against Mohabbey Ali for release of a shop on the ground that the accommodation in question situated in Mohalla Mandi Chowk, Amroha, J.P. Nagar is required for setting up his divorced daughter and late Chunni Lal who was the joint owner of the shop and inherited the property after the death of Smt. Julab Dei. The tenant has become old and he is doing dairy business from his own residential accommodation. Someone else is sitting in the shop and transacting business. Besides, it was also pleaded that the tenant has two shops in Begum Maszid and one shop in Mandi Chowk. There are vacant shops available at Amroha which the tenant can acquire by little effort. The claim of the landlord in the release application was that he bonafidely needs the shop in question for setting up his children and in the event of rejection of prayer, he will suffer irreparable hardship, much more than that of the sitting tenant. The petitioner-tenant filed his objection/written statement and admitted the applicant/respondents to be the landlord but it was asserted that the shop in question has fallen in the share of Late Chunni Lal. After his death, son of Late Chunni Lal became the landlord and the rent is being tendered to him continuously. The landlord Tej Bahadur in reply to the said allegation submitted, that since last 40 years he has been serving in the consolidation department at Lakhimpur Khiri and after partition of the property the decree for partition was already under challenge. However, the question of ownership is not to be gone into in the instant writ petition. The landlord Tej Bahadur in reply to the said allegation submitted, that since last 40 years he has been serving in the consolidation department at Lakhimpur Khiri and after partition of the property the decree for partition was already under challenge. However, the question of ownership is not to be gone into in the instant writ petition. The main dispute in the instant case is adjudication as to whether the two courts below have correctly come to a conclusion that the accommodation in question is bonafidely required by the landlord and in the event of its release or its non release, who will suffer greater hardship. The trial court allowed the release application and his judgment and order stood confirmed by the lower appellate court. Both the judgments are under challenge in the instant writ petition. 5. Learned counsel for the petitioner has placed the findings of the lower appellate court and tried to demonstrate that the respondents have no right to institute the release application as they are not the owners. As already stated above, the question of ownership is not to be gone into while deciding the application for release under Section 21(1)(a) of the Act. The fact of relationship of landlord /tenant stood established and confirmed by the two courts. The question of bonafide need for setting up the son of Tej Bahadur namely Sanjay was taken into consideration. The objection raised by the tenant that the landlord is settled at Lakhimpur Khiri with his family and his sons are settled and doing business of electric appliances, whereas the contesting respondents have proved the fact that they are residing at Amroha by means of educational certificate, ration card, gas connection papers etc. The tenant himself tried to impress upon the court that Sanjay is working at Amroha in a General Merchant shop. It is also admitted that the respondent's family is residing at Amroha itself. The affidavits filed controverting this fact by the tenant has been disputed by means of counter affidavit. Sanjay is a married man. The finding is that Sanjay is married man. He is carrying on General Merchant Shop belonging to one Julfikar Haider Advocate. This shop has been taken during the pendency of the proceedings because he was jobless and he had to support his family members. The courts below noted the fact that Pankaj is salesman in the said shop. The finding is that Sanjay is married man. He is carrying on General Merchant Shop belonging to one Julfikar Haider Advocate. This shop has been taken during the pendency of the proceedings because he was jobless and he had to support his family members. The courts below noted the fact that Pankaj is salesman in the said shop. Extract of Ward No. 139 Ga of Nagar Palika, Amroha for the year 1999 and 2002 and Ward No. 19 Mohalla Mandi Chowk has been adduced in evidence. In the extract of 66D shop of General Merchant has been clearly shown. An affidavit of Syed Iftekhar Nadim Naqvi Paper No. 145Ga is on record where it is stated that Pankaj is only a salesman. Both the courts below have come to a conclusion that merely because some trade has been started during continuation of the proceedings which admittedly was carried for considerable length of period and since the landlord's son was jobless, he has no other option but to start a business to earn some livelihood to support his family members. It is not a case of the petitioner that the accommodation from where the business was started, is owned by the landlord-respondents themselves and, therefore, I am of the opinion that it can not be taken into consideration as availability of alternative accommodation. A number of decisions were taken into consideration, Mumtaj Begum Vs. District Judge, Jalaun and others, 2003 A.R.C., 337, Subhash Chandra Vs. Vinod Kumar Bansal, (2004) A.R.C., 485 where this Court had come to a conclusion that merely because, as an interim measure some accommodation is taken on rent for earning a livelihood during pendency of the proceedings, it can not be inferred that need of the landlord stands extinguished. In view of all these submissions, the Court had come to a conclusion that the shop in question is bonafidely required by the landlord and the balance of hardship tilts in favour of the landlord. The question of ownership is immaterial while deciding a case for release. The only question that are to be considered by the courts is as to whether the landlord requires the accommodation sought to be released bonafidely and his need is genuine. It is merely not desire of the landlord to start a business from the shop where the landlord is carrying on his business since long time. The only question that are to be considered by the courts is as to whether the landlord requires the accommodation sought to be released bonafidely and his need is genuine. It is merely not desire of the landlord to start a business from the shop where the landlord is carrying on his business since long time. The need has to be taken into consideration and also where it is of such a nature that in the event of failure of release, greater hardship will be suffer by the landlord. 6. Learned counsel appearing for the petitioner has tried to deviate from the actual controversy while arguing that the shop in question does not belong to the contesting respondents. In fact this argument was not available in the instant case since the validity of the decree passed by a Civil Court can not be gone into while proceeding under Section 21(1)(a) of the Act. The decree passed in Original Suit No. 304 of 1996 is a matter between the family members who are party to the suit and, therefore, I decline to entertain any argument whatsoever on the question of ownership. I have perused the two judgments and I am satisfied that the findings recorded on the question of bonafide need is just, proper and appropriate. It does not call for any interference by this Court. 7. So far the question of comparative hardship is concerned, Pankaj who is working as a salesman in another shop of General Merchant and has taken up this job to earn some livelihood as he is a married man and requires independent income to support his family. Assuming that this business was started by him during continuation of the proceedings, admittedly it is being carried out from the shop of one Julfikar Haider Advocate and it can very well be deduced that it was only an interim measure till he was able to acquire possession of the shop in question. The tenant has nowhere stated that he has tried to look for an alternative accommodation whatsoever. After the initiation of proceedings, the court below has taken into consideration while recording a finding in favour of the landlord a number of decisions on the question of comparative hardship; Sushila Vs. IInd Additional District Judge, 2003 (1) A.R.C., 256 where Rule 16 was discussed in detail while recording a finding on the question of comparative hardship. After the initiation of proceedings, the court below has taken into consideration while recording a finding in favour of the landlord a number of decisions on the question of comparative hardship; Sushila Vs. IInd Additional District Judge, 2003 (1) A.R.C., 256 where Rule 16 was discussed in detail while recording a finding on the question of comparative hardship. Four months' time was granted to the tenant to vacant the shop. Similarly in the case of Kaushal Kumar Gupta Vs. Bishun Prasad and others, (2006) 1 A.R.C., 73, it was held that the release of shop can not be refused merely on the ground that the tenant has been carrying on the business for a considerable length of period. However, family member of the landlord is entitled to have an independent income and independent business and, therefore, the courts below have very fairly taken into consideration all these aspects while passing an order of release. The lower appellate court has recorded a specific finding to the effect that in fact the petitioner is not entitled for even consideration of comparative hardship for the simple reason that he has not made any genuine effort to look for an alternative accommodation after institution of the release proceedings. Besides, the landlord has clearly demonstrated that the petitioner has two shops available at Keshari Begum Masjid and this fact has been admitted in paragraph 9 of the written statement but with a rider that it is a small shop from where he is carrying on his diary business. This is of no consequence and no help to the landlord. 8. In view of the aforesaid findings, I am of the view that the judgments of the courts below impugned in the instant writ petition, do not call for any interference whatsoever. The writ petition lacks merit and is accordingly dismissed. However, before parting with the judgment, I am conscious of the fact that the petitioner has been carrying on business since considerable length of period and it is not possible for him to vacate the shop immediately. I permit the petitioner-tenant to continue in occupation for a period of six months from today provided he files an undertaking that he will vacate and handover vacant possession on or before 31.1.2010 to the landlord and continue to pay damages month to month at the rate which he was already paying. I permit the petitioner-tenant to continue in occupation for a period of six months from today provided he files an undertaking that he will vacate and handover vacant possession on or before 31.1.2010 to the landlord and continue to pay damages month to month at the rate which he was already paying. In the event of failure of filing an undertaking along with affidavit to the said effect, this liberty of occupation for a period of six months shall come to an end. 9. With the aforesaid observations, the writ petition is dismissed.