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Allahabad High Court · body

2010 DIGILAW 2038 (ALL)

Surendra Kumar Batra v. Additional District Judge

2010-07-13

TARUN AGARWALA

body2010
JUDGMENT Hon’ble Tarun Agarwala, J. Heard Mr. S. K. Jain, the learned counsel for the petitioner and Mr. Lalit Miglani, the learned counsel for the respondent no.2 Shyam Lal. 2. The petitioner, who is the landlord, had filed an application under Section 21(1)(a) of the U.P. Act No.13 of 1972 for the release of the house in question for his personal need and for his family. The facts leading to the filing of the aforesaid application is that the petitioner’s parents were residing in the ground floor and the petitioner and his wife were residing on the first floor. In paragraph 9 of the application, it has been asserted that the house belongs to his parents. It was contended that the petitioner and his wife have no children and this had become a bone of contention of a strained relationship with his parents and between his wife and his parents also and, on account of the strained relationship, it was asserted in paragraph 11 that the parents asked him to leave their house and reside elsewhere. Accordingly, the petitioner purchased a residential house on 07th April, 1989 and, upon the expiry of three years, filed an application for the release of the house on the ground of his personal need. 3. In this house, the opposite party Shyam Lal was living as a tenant for several decades, who resisted the application contending that there was no personal need of the petitioner and that the need shown in the application was not bonafide. The opposite party contended that there was no requirement of any residential accommodation for the petitioner in as much as the petitioner was living happily, separately and independently on the first floor of his parent’s house and that the parents were living separately on the ground floor. It was also alleged that if the application was allowed, the tenant would suffer more than the petitioner in as much as the tenant would not be able to get another accommodation for the same kind of rent, which he was paying. 4. Before the prescribed authority, a number of documents by way of evidence was filed, namely, that the petitioner and his parents have their separate mess arrangements. Affidavits were filed to the extent that the petitioner and his parents were living separately. 5. 4. Before the prescribed authority, a number of documents by way of evidence was filed, namely, that the petitioner and his parents have their separate mess arrangements. Affidavits were filed to the extent that the petitioner and his parents were living separately. 5. The prescribed authority, after considering the material evidence that was brought on record, held that there was a strained relationship between the petitioner, his wife with the petitioner’s parents and this strained relationship was causing a lot of tension between the families and, on this score, the prescribed authority concluded that there was a bonafide need for the petitioner to live separately. On the question of hardship, the prescribed authority found that in the given circumstance, the petitioner would face more hardship than the tenant. 6. The tenant, being aggrieved, filed an appeal which was allowed and the order of the prescribed authority was set aside. The appellate court held that the petitioner landlord failed to prove his strained relationship between himself and his parents and that in the absence of any evidence on this issue being filed, the appellate court concluded that the need of the petitioner was not genuine nor bonafide. The appellate court further came to the conclusion that since the petitioner was living separately on the first floor and had its own establishment, the need to live in the new accommodation did not arise. The appellate court further concluded that there was no plea that the petitioner required the additional accommodation or that the existing accommodation was insufficient for his requirement. The appellate court, consequently, held that the need for the release of the building was not bonafide and accordingly allowed the appeal and set aside the order of the prescribed authority. 7. The landlord, being aggrieved by the order of the appellate court, has filed the present writ petition. 8. The arguments raised by the parties are more or less the same, which were raised before the prescribed authority as well as before the appellate court and a lot of submissions was raised on the question as to whether the bonafide need has been proved by the petitioner in the absence of any evidence being brought on record with regard to the strained relationship between the petitioner and his parents. 9. 9. Strained relationship between the petitioner and his parents is a relative concept, which is difficult to prove by way of documentary evidence and, in a given situation as in the present case, the petitioner and his wife remained issueless which became a bone of contention and caused tension between the petitioner, his wife and the petitioner’s parents. In the Indian concept of a joint family, there is always some kind of a discord between the daughter-in-law and the mother-in-law even in the best of homes and, therefore, while living jointly, there is always some kind of a strained relationship, or to put it in a better way, a guarded relationship between the parties. There may not be a discord or animosity between the parties, but there would still remain a strained relationship. Therefore, it is difficult to analyse the bonafide need on the basis of strained relationship. 10. On the other hand, it has been stated in paragraph 9 of the application that the petitioner is residing in his parents’ house. This fact has not been denied by the tenant in his written statement. Admittedly, the petitioner purchased the property and now wants to shift and reside in his own property. No one can force a child to continue to live with his parents and cause a burden on them. The petitioner, who is the son and who has married, has every right to live in his own house and be independent and live a life of his own and is not required to be dependant on his parents. On this short ground that the petitioner wants to shift to his own house and wants to life independently and away from his parents is by itself sufficient need and, on this short issue, the court is of the opinion that there exists a bonafide need. The ground of strained relationship is an added factor, which accelerated the need for the release of the premises in question. Based on these considerations, the issue of hardship, in my opinion, is more in favour of the petitioner than in favour of the tenant. The ground of strained relationship is an added factor, which accelerated the need for the release of the premises in question. Based on these considerations, the issue of hardship, in my opinion, is more in favour of the petitioner than in favour of the tenant. No doubt, the tenant has been living in the accommodation in dispute for several decades, and that, can be a mitigating circumstance, but, in the present case, the mere allegation that he will not be able to get another accommodation for the same rent, which he is paying, cannot be a ground to mitigate the hardship between the parties. No assertion has been made by the tenant that he was unable to get another accommodation. Consequently, considering the entire aspect of the matter, this court is of the opinion that the petitioner has wrongly been non-suited on the ground that the petitioner has not been able to prove the strained relationship between himself and his parents. In my opinion, the order of the appellate court cannot be sustained since the court finds that the petitioner has been able to prove categorically his bonafide need. The court finds that the petitioner will suffer more than the tenant. 11. In view of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed. The order of the prescribed authority is affirmed. In the circumstances of the case, there shall be no order as to cost. Considering the circumstances that was brought on record, the court grants time to the opposite party to handover vacant possession of the premises in question on or before 31st December, 2010 provided the tenant opposite party files an undertaking on an affidavit before the prescribed authority within four weeks from today indicating therein that he will handover vacant possession of the property to the petitioner on or before 31st December, 2010. The tenant will also deposit the arrears of rent before the prescribed authority within four weeks from today and will also deposit the rent for the month of July, 2010 to December, 2010 by the end of 31st August, 2010 failing which it would be open to the petitioner to proceed forthwith for the eviction of the opposite party in accordance with law.