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Allahabad High Court · body

2010 DIGILAW 1835 (ALL)

Govind Lal Kesarwani v. A. D. J.

2010-05-28

DEVENDRA PRATAP SINGH

body2010
JUDGMNET 1. Heard learned counsel for the petitioner and counsel for the respondent caveator. 2. This petition is directed against an appellate order dated 22.4.2010 by which the release application filed by the respondent landlord has been allowed. 3. It appears that the respondent landlord preferred a release application no. 45 of 2007 against the petitioner tenant inter alia with the allegation that she is the owner and landlord of a portion of House No. 56 Chak Raghunath in Naini Bazar where the petitioner is a tenant of a shop in ground floor at Rs. 700/- per month but was a persistent defaulter for which different proceedings are going on. It was further alleged that she along with her husband stayed in a lower income group flat at Mutthiganj, Allahabad along with her in laws and her two children with some difficulty. It was further pleaded that her husband was running a medicine shop in a rented accommodation in Naini itself and her elder son is jobless and has to be settled while she herself is qualified to run a beauty parlour and for selling lady wares for which she also required the disputed shop. It was further stated that apart from the disputed shop there were five other rooms in the house but they were in highly dilapidated condition and situated in a narrow lane and thus, she can settle herself in the disputed shop and after repairs occupy the other rooms for residential purposes. She further led evidence that the tenant had several properties including a shop where one of the tenants was carrying out a general merchant shop in the name of 'Sarthak Store' at Naini, apart from the fact that his wife was running a school from a huge building. 4. The petitioner tenant contested the application on various grounds including that the shop was neither required for the land lady nor her son and he had no other accommodation where he could shift. 5. After considering the evidence on record, the Prescribed Authority rejected the application after recording a finding against the landlord on the question of bona fide need. The petitioner tenant contested the application on various grounds including that the shop was neither required for the land lady nor her son and he had no other accommodation where he could shift. 5. After considering the evidence on record, the Prescribed Authority rejected the application after recording a finding against the landlord on the question of bona fide need. On appeal, finding that there was no denial of availability of different shop to the tenant and the existence of huge building, it held that the need of the land lady for herself and her son's usage was both genuine and bona fide and after holding that the comparative hardship was also in favour of the landlord, allowed the application. 6. It is urged that the court below has wrongly held that the petitioner was running a general merchant shop in the name of Sarthak Store. 7. The petitioners have admitted before the courts below and also before this Court that both are tenants of the disputed shop. The appellate court, after considering the evidence on record, found that the tenants have a huge building near the disputed shop where Shri Govind Lal was running a medical store while his son, Prashant, was running a general merchant's shop by the name of 'Sarthak Store'. The counsel for the petitioner has failed to point out any denial of this evidence during arguments. Therefore, the contention of counsel for the petitioner cannot be accepted. 8. It is then urged that the appellate court without setting aside the findings of fact recorded by the Prescribed Authority has allowed the release application. 9. This argument is totally misconceived. The Prescribed Authority has highlighted that the portion of the release application where the land lady had mentioned about difficulties faced by her in her residential accommodation and misdirected itself into holding that land lady was not sure for whom the disputed shop was needed. The appellate court after considering the specific pleadings found that her son was to be settled and after considering various decisions of this Court and the Apex Court, it recorded a finding that the land lady is entitled to settle herself and also her son and therefore, it found that such a need was genuine and bona fide. 10. No other point has been urged. 11. 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. 12. After the writ petition had been dismissed, the learned counsel for the petitioner, on instruction of his client states that a reasonable time may be granted by which he will handover the peaceful vacant possession to the respondent landlord. 13. In view of the aforesaid undertaking, the petitioner tenant is directed to handover peaceful vacant possession to the respondent landlord on or before 23.8.2010 without creating any third party right. He is further directed to deposit the entire rent uptill 23.8.2010 within a month from today. In case of default of deposit of rent, the petitioner shall be liable for eviction forthwith. The respondent landlord would be entitled to release of the said amount.