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2010 DIGILAW 1800 (ALL)

Rajeev Kumar v. Siddharth Bhardwaj

2010-05-27

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard learned counsel for the petitioner and the counsel for the respondent caveator. 2. This petition is directed against concurrent orders dated 5.9.2007 and 29.4.2010 by which the release application of the respondent landlord has been allowed by both the courts below. 3. It appears that the respondent landlord preferred an application of release under Section 21(1)(a) of U.P. Act No. 13 of 1972 which was registered as P.A. Case No. 51 of 1999 inter alia with the allegation that the respondent was the owner and landlord of the disputed shop wherein the petitioner was a tenant at Rs. 80/- per month and since he was only intermediate pass, had no vocation except for looking after his agricultural land situated at 16 kms. from the City through his servants, he needed the disputed shop to settle himself and to enhance his income as he had now become of marriageable age while the petitioner tenant generally keeps the disputed shop closed and except for the disputed shop he had no other premises for himself. The petitioner tenant contested the aforesaid release application claiming that the family of the landlord are well settled persons having several shops and buildings in their name and there was no need for him to get the disputed shop released. 4. Both the courts below, after considering the evidence on record, have recorded categorical findings of bona fide need in favour of the landlord and have held that in case the application is rejected the landlord will suffer a greater hardship. 5. It is urged that the courts below have wrongly rejected the application for appointment of Commissioner to show that certain shops in the name of father of the landlord were vacant. 6. No doubt the petitioner had made an application for appointment of a Commissioner which was rejected vide order dated 19.1.2006 which was subjected to challenge in Writ Petition No. 17236 of 2006 but the writ petition was dismissed on 29.3.2006 keeping it open for the tenant to raise the issue before the Appellate Authority. The Appellate Authority has considered this aspect in detail and has found that there was a mere allegation that the father of the landlord was owner of certain shops which allegedly were vacant but the petitioner filed no evidence to show the correctness of the allegation of the ownership of the landlord's father. The Appellate Authority has considered this aspect in detail and has found that there was a mere allegation that the father of the landlord was owner of certain shops which allegedly were vacant but the petitioner filed no evidence to show the correctness of the allegation of the ownership of the landlord's father. Even otherwise, Court Commissions cannot be used for collecting evidence for the disputing parties. In the facts of this case, the Prescribed Authority was fully justified in refusing issuance of Commission. 7. It is then urged that the courts below have wrongly rejected the amendment application to incorporate the fact that the landlord, during the pendency of the release application, had obtained some academic degree. 8. During the pendency of the appeal, the petitioner moved an amendment application claiming that the landlord had misled the courts by withholding the fact that he was also holder of M.B.A. Degree. After considering the amendment application, the appellate court has rightly held that the release application had remained pending since 1999 and if during the pendency of the proceedings the landlord acquires further academic qualification, that by itself not amount to watering down the bona fide need. In the opinion of the Court, the approach of the appellate court was fully justified in the present facts. 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 was dismissed, learned counsel for the petitioner upon instruction of his client has given an undertaking both oral and through an affidavit that if reasonable time is granted, the petitioner shall handover vacant and peaceful possession to the respondent landlord. 12. The counsel for the respondent landlord has no objection, provided no third party rights are created and vacant and peaceful possession is handed over without he having to resort to execution proceedings. 13. Accordingly, the petitioner shall hand over vacant and peaceful possession of the disputed premises without creating any third party rights to the respondent landlord on or before 26th November 2010. He shall also deposit the rent with the court below uptil that date within a period of one month from today which shall be released in favour of the respondent landlord. In case of default in payment of rent, the petitioner shall be liable for eviction forthwith.