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2010 DIGILAW 1778 (ALL)

Keshav Dev @ Keshav Singh v. Shyam Sunder

2010-05-26

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard counsel for the parties. 2. This petition is directed against concurrent judgements dated 12.9.2007 and 23.10.2008 by which the release application filed by the landlord on the ground of personal need has been allowed by both the courts below. 3. Sri Sukh Ram Singh, plaintiff-landlord filed a release application under section 21 (1) (a) of U.P. Act No. XIII of 1972 (here-in-after referred to as the Act) which was registered as P.A. Case No.8 of 2004, for eviction of the petitioner-tenant from the disputed shop. It was inter-alia alleged that he purchased the premises vide registered sale-deed dated 23.11.1960 from the erstwhile owner Chhedi Lal where earlier the father of the petitioner Late Siya Ram was a tenant and after his death, the petitioner became tenant at the rate of Rs.270/- per month. When the shop was let, the family of the landlord was small and the sons were minor and unmarried but by passage of time, all have become major and are married and the three of the four sons are doing their own business while the fourth son namely Shyam Sunder was practising lawyer at the court at Tehsil Tundla in district Firozabad but he has no chamber at Tundla for which the disputed premises was needed as the petitioner-tenant normally keeps the shop closed and can move to any other shop. During the pendency of the release application, Sri Sukh Ram Singh died and therefore was substituted by his son and wife. It was also pleaded that prior to his death, Sri Sukh Ram Singh had executed a will in favour of Shyam Sunder and therefore, after his death, he had become sole owner and landlord of the disputed premises. 4. The petitioner-tenant contested the application alleging that after the death of the original landlord, all his heirs had become joint landlord and therefore, application was not maintainable. It was further asserted that the landlord did not need the shop for his chamber and he has a big residential house where abundant space is available for his chamber and they have been utilizing the premises for sweet shop for the last about 30-35 years and they have no other accommodation to shift. Further, it was asserted that in fact, Shyam Sunder was running a business of photostat machine in the Tehsil Compound and was only a registered advocate without, in fact, practising law. 5. Further, it was asserted that in fact, Shyam Sunder was running a business of photostat machine in the Tehsil Compound and was only a registered advocate without, in fact, practising law. 5. The trial Court framed as many as 7 issues for determination and after the parties had led their evidence, it held that the Act was applicable to the disputed premises and the need of the landlord was both genuine and bonafide and in case of rejection of his application, he would suffer greater hardship and therefore, allowed the release application. This order has been affirmed in appeal. 6. It is urged that a perusal of the plaint map itself would show that the landlord had another shop adjacent to the disputed shop in vacant condition but both the courts below have ignored it only on the ground that the landlord is best judge to choose the premises which would fulfil his need. In support of his contention, learned counsel for the petitioner has referred to the alleged map said to be filed with the plaint, which no doubt, shows that there is a mention of vacant shop adjacent to the disputed shop. 7. However, this fact was strongly opposed by the learned counsel for the respondent-landlord and he has demonstrated before the court that the map which the petitioner is trying to prove to be the map annexed to the plaint, was in fact a map prepared by him and filed in the court through his affidavit. Both the maps are on record and it is apparent that it was not filed by the respondent-landlord but by the tenant. To the contrary, both the courts below have recorded categorical finding of fact that no other shop in vacant condition was available to the landlord and therefore, the argument of the petitioner is misconceived. 8. It is then urged that though the landlord was a registered advocate but he was not a practising advocate and his claim to practice at Tehsil Tundla was only a wish. 9. No doubt, this argument was also raised before the courts below but from the admission of the petitioner himself, it is disproved. 8. It is then urged that though the landlord was a registered advocate but he was not a practising advocate and his claim to practice at Tehsil Tundla was only a wish. 9. No doubt, this argument was also raised before the courts below but from the admission of the petitioner himself, it is disproved. During the pendency of the appeal, the petitioner himself had filed a transfer application no.354 of 2008 before this Court for transferring the case to some other court on the ground that the respondent-landlord was a practising advocate of district Firozabad. Apart from that, it is also proved from the record that he was a registered advocate and he has also filed details of some cases which he was conducting. Merely because he was not a member of local Bar Association, could not lead to the inference that he was not a practising advocate, especially on the above allegation. The courts below have considered this aspect also in detail and come to the conclusion by appreciating the fact that the respondent was a practising advocate, therefore the argument cannot be accepted. 10. No other point has been urged. 11. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.