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2010 DIGILAW 2704 (ALL)

RAMJI GUPTA (DEAD) v. OM PRAKASH TRIPATHI

2010-09-06

RAKESH TIWARI

body2010
JUDGMENT : RAKESH TIWARI, J. – Heard learned Counsel for the parties and perused the record. 2. It appears from the order dated 13.7.2009 that in view of the fact that point involved in this writ petition is similar and identical to that of Writ Petition No. 32591 of 2009. This writ petition was connected with the aforesaid writ petition No. 32591 of 2009 and an interim order was passed by His Lordship Hon. Pankaj Mithal, J. at the admission stage in the following terms. "The point involved in this writ petition is similar and identical to be one arising in writ petition No. 32591 of 2009. Therefore, connect and list along with the above referred writ petition on 20.7.2009. In the meantime Sri K.K. Tripathi, learned Counsel for the respondent may file counter-affidavit. For the same reasons as contained in the order passed in the above referred writ petition, the eviction of the petitioner from the premises in dispute shall remain stayed till the next date of listing in pursuance of the orders impugned in the writ petition." 3. The present writ petition No. 33870 of 2009 has come up for admission today along with the record of writ petition No. 32591 of 2009 in view of the order passed by the Court on 3.9.2010 thus: “Sri K.K. Tripathi, learned Counsel for the respondents states that the facts of this case are covered by the judgment rendered in Civil Misc. Writ Petition No. 32591 of 2009. Certified copy of the judgment has been produced by him before this Court. It appears that the interim order has been granted in this case on the basis of interim order granted in the aforesaid connected writ petition, hence it is imperative to look into the judgment filed by Sri K.K. Tripathi, learned Counsel for the respondents in this case. Learned Counsel for the petition or-states that the facts of this case are not covered by that judgment. List peremptorily on Monday dated 6.9.2010.” 4. A preliminary objection has been raised by Sri K.K. Tripathi, learned Counsel for the respondents, inter alia, that the petitioner has his own house which is clear from the findings recorded by the Courts below. In this view of the matter, the petitioner cannot remain as tenant in the house in dispute. List peremptorily on Monday dated 6.9.2010.” 4. A preliminary objection has been raised by Sri K.K. Tripathi, learned Counsel for the respondents, inter alia, that the petitioner has his own house which is clear from the findings recorded by the Courts below. In this view of the matter, the petitioner cannot remain as tenant in the house in dispute. He further submits that the Court in a similar issue and controversy involved in earlier writ petition No. 32591 of 2009, Kamia Devi v. Munni Devi and another has considered the question of acquiring a house in a vacant state by the tenant. He has placed reliance upon the following extract of the findings recorded by the Court below: HINDI 5. Thereafter, he has referred to the findings recorded by the Revisional Court and submits that the Revisional Court has also confirmed the findings of the Trial Court and that it is sufficiently proved from the documents on record that the petitioner has his own house in Municipal limit's of Kanpur Nagar in which he has permitted his step brothers to live in. 6. Learned Counsel for the petitioner has vehemently urged that the aforesaid house situated at Jarauli Kanpur Nagar has been inherited by him and that his step brother is residing therein, hence it cannot be said that the house is vacant for his possession. 7. The provision of U.P. Act No. 13 of 1972 is quite clear in this regard. The petitioner has acquired his own house by way of inheritance. The Courts below have considered this fact that he has permitted his step brother to live therein, therefore, it cannot be said that he does not have his own house to live in. The Courts below have also recorded concurrent findings of facts holding the bona fide need for the accommodation in dispute in favour of the landlord and that the landlord would suffer comparatively more hardship if the accommodation in question is not released. The Courts below have also recorded concurrent findings of facts holding the bona fide need for the accommodation in dispute in favour of the landlord and that the landlord would suffer comparatively more hardship if the accommodation in question is not released. Since ground of passing of interim order on this petition and direction to connect it with W.P. No. 32591 of 2009 was that same points had been raised in that petition, hence for the reasons stated above as well as for the reasons given in judgment rendered in connected writ petition No. 32591 of 2009, Kamla Devi v. Munni Devi and another upon the facts of which interim order had been granted in similar facts, for the same reasons, hence this writ petition is also dismissed and the interim order dated 13.7.2009 is also vacated for the same reasons. No order as to costs. Petition Dismissed.