Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 2756 (ALL)

MOHIUDDIN v. MOHD. SHAHI

2009-08-03

POONAM SRIVASTAV

body2009
JUDGMENT Mrs. POONAM SRIVASTAV, J.--Heard Sri D.K. Srivastava, learned Counsel for the petitioner and Sri K.K. Nirkhi Advocate for the contesting respondent/landlord. 2. Counter and rejoinder affidavits have been exchanged which are on record. 3. The dispute relates to premises No. 101/171 Mariyam Bibi Ka Hata, Gammo Khan, Colonelganj, District Kanpur (hereinafter referred to as disputed accommodation). The petitioner is the tenant of an accommodation consisting of one kothari, one dalan (khaprail shed), courtyard and a toilet at the rate of Rs. 6.25 paisa per month. Previously the premises was under tenancy of the petitioner's father and subsequent to his death the petitioner and his mother stepped in his father's shoes. The contesting respondent purchased the disputed accommodation by virtue of a registered sale deed dated 18.1.1988. The instant release application was preferred by the subsequent purchaser, landlord/contesting respondent for his own use in the Court of Prescribed Authority/VIIIth A.C.M.M., Kanpur Nagar vide R.C. No. 86 of 1991-Mohd. Shahi and Smt. Sabra Begum and others. The landlord's contention in the release application was that the accommodation was purchased for his own personal occupation. Despite repeated request, he was unable to prevail upon the tenant and he refused to vacate and deliver vacant possession. The landlord's need is genuine urgent and bonafide. The requirement of six months' notice as provided under law was complete and it was served on the opposite party but they were adamant and refused to vacate. The tenant contested the release application by filing written statement. An objection was raised that while detailing the number of family members, the respondent/landlord have mentioned Meraj who happens to be brother of the landlord and, therefore, is not a family member, thus instead of 7, only 6 members are in his family. Besides, the tenant's contention that the petitioner/landlord are in possession of a number of accommodations viz. premises No. 101/42, 101/170 and thus the need of house No. 101/171 Ahata Gammu Khan, Kanpur was specifically denied. It was also mentioned in the written statement that the income of the tenant is below Rs. 600/- per month and, therefore, Kanpur Nagar being a Metropolitan City it is difficult for them to arrange for an alternative accommodation. The landlords filed their replication. It was also mentioned in the written statement that the income of the tenant is below Rs. 600/- per month and, therefore, Kanpur Nagar being a Metropolitan City it is difficult for them to arrange for an alternative accommodation. The landlords filed their replication. The prescribed authority dismissed the release application on the ground that alternative accommodations in the ownership and possession of the landlord as shown in the written statement appears to be correct and, therefore, the need is not bona fide and finding in respect of comparative hardship was also against the landlord. While recording this finding, a judgment in Rent Appeal No. 78 of 1992 was relied upon wherein it was held that Smt. Wahidunnisa sold her property to her brother Mohd. Shahi (landlord in the present case). Certified copy of this judgment has also been produced in this Court in support of the argument. The Trial Court came to a conclusions against the landlord only because House Nos. 101/171, 101/170, 101/173 and 101/42 was in his possession. The landlord has unequivocally stated that it does not belong to him. The responden s preferred an appeal against the judgment of the prescribed authority dated 10.4.1997 before the Additional District Judge, Court No. 15, Kanpur Nagar vide Rent Appeal No. 120 of 1997 which was allowed vide judgment dated 20.2.2009 releasing the accommodation in favour of the landlord. While entertaining his writ petition as a fresh case on 16.3.2009, this Court enhanced the rent to a sum of Rs. 500/- per month w.e.f. 1.1.2009. It has not been brought to my notice by the Counsel for the contesting respondents that this amount is not being paid. It appears that the enhanced rent is being paid since the said date. 4. Learned Counsel for the petitioner argued that the property in question was sold to the landlord by real sister of maternal grandmother and this was with a specific purpose of creating an artificial need so that the tenant can be evicted. The next argument is that the Trial Court specifically placed reliance on the judgment of Rent Appeal No. 78 of 1992-Smt. Razia Khatoon v. Mohd. Meraj @ Rajjan in support of his argument. The next argument is that the Trial Court specifically placed reliance on the judgment of Rent Appeal No. 78 of 1992-Smt. Razia Khatoon v. Mohd. Meraj @ Rajjan in support of his argument. The Appellate Court in the said release case allowed the rent appeal of the tenant coming to a conclusion that it was not bonafidely required and comparative hardship is also not in favour of Mohd. Meraj. Emphatic submission is that the Appellate Court did not record its finding as to why the findings of the Trial Court in respect of this decision, a certified copy of which has been placed before me, was completely overlooked while allowing the appeal. Besides, a perusaf of the said judgment of Rent Appeal No. 78 of 1992 clearly demonstrate that an artificial need was created by the said landlord and so called sale and purchase of the dispute property by the present landlord is only to somehow evict the tenant. 5. I have gone through the said judgment and also the Appellate Court's judgment in the instant case and I do not agree with the arguments of learned Counsel for the petitioner that the findings of the Trial Court regarding consideration of the judgment in Rent Appeal No. 78 of 1992 was completely overlooked and its finding was ignored while allowing the rent appeal. On perusal of the impugned judgment, it transpires that it was categorically held that the prescribed authority committed legal error while taking into consideration the aforesaid judgment in Rent appeal No. 78 of 1992 because the present respondent-landlord was neither a party to the said case nor he had ever contested. Besides, no sale deed etc. has been filed in respect of premises No. 101/42, 101/170, 101/171, 101/173. The tenant if came up with suggestion that the aforesaid alternative accommodations were at the disposal of the landlord, at least some tax receipts from Nagar Nigam or any other document should have been brought on record. A bald assertion by the tenant-petitioner could not be relied upon and it was the statement of the landlord against the tenant. Since it is the tenant who relied upon this fact and asserted that the accommodations mentioned herein before have been purchased by the landlord-respondent then some positive evidence should have been brought on record. A bald assertion by the tenant-petitioner could not be relied upon and it was the statement of the landlord against the tenant. Since it is the tenant who relied upon this fact and asserted that the accommodations mentioned herein before have been purchased by the landlord-respondent then some positive evidence should have been brought on record. The burden was that of the tenant who was to be benefited from these additional circumstances but for denial on in his counter-affidavit, there is no other evidence. 6. I have taken into consideration the arguments raised by the respective Counsels on behalf of the petitioner and contesting respondent and gone through the judgments and considering the evidence and all other aspects, I am satisfied that the findings arrived by the Appellate Court on the question of bonafide need as well as on the question of comparative hardship is justified and does not callfor any interference whatsoever. This Court in the case of Azmuddin v. Malika Bano (Smt.),1 was of the view that the very fact that the landlady is residing as licensee in someone else house as in the instant case sister of maternal grandmother. This itself is sufficient to establish the bonafide need of the landlady. Reliance was placed on Meenal Eknath Kshirsagar v. M/s. Traders and agencies.2 Similar view was expressed by the Apex Court in the case of Taalib Hussain v. 1st Additional District Judge, Nainital1 the aforesaid principle was followed. 1. 2008 (3) ARC 570. 2. AIR 1997 SC 59. 1. 1986 (12) ALR 113=1986 (1) ARC 1 (F.B.). 7. It is also correct that the tenant did not make any effort to search for an alternative accommodation. At least no evidence was adduced and nothing was brought on record to substantiate that after institution of the instant release application any effort was made whatsoever by the tenant to search for alternative accommodation and, therefore, he was not entitled for any consideraticn while comparing their respective hardship. This view was in consonance with the judgment of the Apex Court in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada.2 2. AIR 2003 SC 2713 . 8. In view of the aforesaid discussion, I am of the considered view that the judgment of the Appellate Court does not call for any interference whatsoever. The writ petition lacks merit and is accordingly dismissed. 9. AIR 2003 SC 2713 . 8. In view of the aforesaid discussion, I am of the considered view that the judgment of the Appellate Court does not call for any interference whatsoever. The writ petition lacks merit and is accordingly dismissed. 9. However, the request of the learned Counsel for the petitioner that some time may be allowed to vacate the premises in question, this request appears to be reasonable and justified. It is not easy to search for an accommodation immediately within the city of Kanpur Nagar. 10. The petitioner-tenant is permitted six months' time from today to vacate the accommodation in question and handover vacant possession to the landlord till 28.2.2010 provided he files an undertaking within a period of three weeks before the prescribed authority that he will continue to pay at the enhanced rate of Rs. 500/- per month till he hands over vacant possessions and also he will not sublet or handover possession to any third person but for the landlord. In the event the tenant fails to file an undertaking in the shape of an affidavit within the aforesaid period, this liberty of six months shall automatically come to an end. Petition Dismissed.