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2010 DIGILAW 1780 (ALL)

Shiv Charan v. Kapoori Devi

2010-05-26

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard learned counsel for the petitioner and counsel for the respondent caveator. 2. This petition is directed against concurrent orders dated 22.11.2008 and 7.4.2010 by which the release application filed by the respondent landlord against the petitioner has been allowed by both the courts below. 3. The respondent landlord filed a release application against the predecessor of the present tenants with the allegation that he? was the owner and landlord of half portion of House No. 609 situated at Mohalla Taal, Sadar Bazar, Jhansi after he purchased it from its previous owner vide sale deed dated 12.10.2000 wherein the predecessor in interest of the petitioner was the tenant in a portion of the said house consisting of two rooms. Earlier the landlord along with his family of about ten members were residing in a tenanted House No. 136/31 situated at Mohalla Taal in Sadar Bazar but the same was got vacated by the Cantonment Board in 2003 and therefore, he along with his entire family had to shift to a single room of 10x12' which was adjacent to the disputed accommodation and after making some arrangement of a thatched roof, they started leaving there. It was alleged that the tenant's two sons were railway servants while third son was running a business in the name of 'Lalit Idol and Painting Works' and they were in occupation of a huge house along with a court yard on rent from the Zila Parishad, apart from the fact that he owns a plot at Rajgarh where two big rooms have been constructed. With these basic allegations the release application was filed for release of the disputed accommodation for his and his family need. The tenant contested the said application denying the allegations and stating that the landlords were staying comfortably in a room measuring 10x13' and one thatched roof measuring 40x7'. Further stating that the father and mother of the erstwhile landlord were residing with their son in? a different locality while the other sons were residing at different places.? 4. Both the courts below, after considering the evidence on record, have found that the need of the landlord was both genuine and bona fide and finding that rejection of the application would cause more hardship to the landlords, allowed the application.? 5. a different locality while the other sons were residing at different places.? 4. Both the courts below, after considering the evidence on record, have found that the need of the landlord was both genuine and bona fide and finding that rejection of the application would cause more hardship to the landlords, allowed the application.? 5. Learned counsel for the petitioner has urged that admittedly during the pendency of the proceedings the landlord came into possession of certain other accommodations but yet without amending the release application, the courts have rendered their finding relying upon evidence without pleadings which was illegal. In support thereof he has? relied upon judgment of the Apex Court rendered in the case of Maqboolunnisa Vs. Mohd. Saleha Quaraishi. 6. The Courts below, especially the appellate court has dealt in detail the requirement of the landlord. It has also considered that some other rooms came in possession of the landlord but finding that landlord had a large family of 12 members and even if the released accommodation are taking to consideration only 9 rooms would be available for the landlord and thus he found that the need even thereafter would remain both genuine and bona fide. The court has found that the need was not confined to the two rooms which were in occupation of the tenants but the landlord had pleaded in its release application itself that he was taking proceedings against other tenants of the building. This pleading was already on record and therefore, the ratio in Maqboolunnisa's case would not apply on the present facts. This argument has been considered by the appellate court which repelled it by a reasoned order. 7. It is then urged that in view of Proviso 2 Section 21(1)(a) the release application could not have been filed without notice. 8. A bare perusal of proviso shows that where release is sought within three years of purchase of a building, landlord is required to give a notice of six months before moving the release application. Admittedly, in the present case more than three years had expired before the filing of the release application and therefore, it was maintainable and the argument cannot be sustained. 9. No other point has been urged. 10. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected. 11. Admittedly, in the present case more than three years had expired before the filing of the release application and therefore, it was maintainable and the argument cannot be sustained. 9. No other point has been urged. 10. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected. 11. After the petition had been dismissed, learned counsel for the petitioner, upon instructions of his client, has undertaken to hand over vacant possession to the respondent landlord in case a reasonable time is granted to vacate the premises. 12. Accordingly, the petitioner shall vacate the disputed premises and hand over vacant and peaceful possession without creating third party rights to the landlord on or before 6.8.2010 and deposits rent uptill that date within three weeks from today. In case of default of rent, he shall be liable for eviction forthwith.