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2010 DIGILAW 3235 (ALL)

Bhagwan Das v. Surendra Prakash Agarwal

2010-10-20

RAKESH TIWARI

body2010
Rakesh Tiwari, J.- Heard Sri R.K. Ojha assisted by Sri Arun Kumar Tiwari, counsel for the petitioner, Sri Ashish Agrawal appearing for landlord respondent and perused the record. 2. The petitioner has challenged the validity and correctness of judgment and order dated 18.8.2010 passed by Additional District Judge, court no. 8, Etawah in P.A. appeal no. 9 of 2008. He has prayed for a writ of certiorari quashing the aforesaid order and in addition a writ in the nature of mandamus commanding the respondents not to interfere in any manner in peaceful possession and occupation of petitioner in the shop in question. 3. Respondent landlord Surendra Prakash Agrawal filed P.A. suit no. 16 of 2004, under section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act 1972 (hereinafter referred to as the Act), for eviction of petitioner from the shop in question which was initially given to him at the rate of Rs. 60/- per month sometimes in 1960. The rent was thereafter enhanced to Rs. 100/- per month. P.A. suit no. 16 of 2004 was dismissed by Civil Judge (SD), Etawah vide judgment and order dated 22.7.2008 holding the question of bonafide need and comparative hardships in favour of the petitioner tenant. Aggrieved by the aforesaid order, the landlord respondent filed P.A. appeal no. 9 of 2008 in the court of Additional District Judge, court no. 8, Etawah which has been allowed by the impugned judgement and order dated 18.8.2010 setting aside the order passed by the Civil Judge (SD), Etawah in P.A. suit no. 16 of 2004. By the order impugned, the petitioner has been directed to hand over possession of the shop in question to the landlord within a period of three months and a further direction has been issued to pay rent of two years prior to taking possession of the shop as required under section 21 of the Act. 4. Learned counsel for the petitioner has taken the Court through judgment of the court below and submits that landlord Surendra Prakash Agrawal filed P.A. suit no. 16 of 2004 under section 21(1)(a) of the Act on 6.11.2004 stating that petitioner is tenant of the shop in question on rent at the rate of Rs. 100/- per month and also due rent w.e.f. 1st January, 2002 alongwith water tax and house tax since 13.2.1981. 16 of 2004 under section 21(1)(a) of the Act on 6.11.2004 stating that petitioner is tenant of the shop in question on rent at the rate of Rs. 100/- per month and also due rent w.e.f. 1st January, 2002 alongwith water tax and house tax since 13.2.1981. It is further stated that in violation of condition for opening the shop of Atishbazi. However, shop in question was given for the purpose of business of general merchant, that the landlord is residing on the first floor and due to old age he want to open a shop where he is residing. He is also required to take care of his ailing wife and one grand son namely Sharad Agrawal who is handicapped, that for his survival and for establishment of his gran son he needs the shop under the tenancy of the petitioner. It is also averred that tenant is having one another shop situated in Sri Shanker Jee Ka Mandir from where he is doing business and keeping the shop in question closed; that there is no other shop available except the shop in question rented to the petitioner and that he is also ready to two years of rent toward compensation as provided in section 21 of the Act for this purpose. 5. The suit was contested by the petitioner by filing written statement. The personal need of the landlord in respect to shop in question was denied inter alia that at present there was no need of the landlord for business or for establishing his grand son Sharad Agrawal and earlier suit filed by the landlord being P.A. suit no. 5 of 1984 under section 21(1)(a) of the Act on the ground of need for his son Shalendra Kumar was got dismissed as withdrawn by him on 10.4.1985 when rent was enhanced from Rs. 60/- to 100/- per month; that later on he again started mounting pressure for enhancement of the rent to the tune of 200/- per month which was denied by the petitioner; that it is then the landlord refused to accept the rent, hence the petitioner was compelled to deposit the rent in the court in Case No. 39 of 2004. In spite of knowledge of the aforesaid case, the landlord respondent neither filed any written statement nor he appeared in the aforesaid case but filed P.A. suit no. In spite of knowledge of the aforesaid case, the landlord respondent neither filed any written statement nor he appeared in the aforesaid case but filed P.A. suit no. 16 of 2004 on wholly false, baseless and vague allegation on the alleged need for his grand son. In his reply to the notice the petitioner provided details of the family members of the landlord who are doing business. 6. Counsel for the petitioner has vehemently argued that during pendency of the suit, another shop of the landlord was inaugurated by Sri Ram Naresh Yadav (member of legislative assembly, of fertilizer, medical store and Enterprises), hence he filed an application for amendment in the written statement, to which rejoinder affidavit was filed by the landlord respondent. 7. It is argued that trial court after considering a voluminous evidence filed by the petitioner, dismissed the suit of the landlord holding that the landlord had no bonafide need of the shop and would not suffer hardship more than the tenant. It is stated that though the appellate court has also considered the evidence filed by the petitioner before the trial court, yet by the impugned order has reversed the findings of the trial court without any cogent reason in a wholly illegal, arbitrary and unjust manner which is contrary to the evidence on record. 8. It is further submitted that grand son does not fall within the family as defined under section 3(g) of the Act; that age of the grandfather who is the landlord was above 70 years when he had filed the suit for eviction of the petitioner from the shop in dispute for establishing his grand son in business. It is also submitted that petitioner has earned goodwill in the locality and in paragraph no. 15 of the writ petition it has been averred that petitioner has no other business or source of income except the shop in question and it would not be possible for his family members to survive if he is evicted from the shop in question. 9. Per contra, counsel for the respondent landlord submits that shop in dispute is required for his disabled grand son whose disability has been certified to be 40 % by the Chief Medical Officer. 9. Per contra, counsel for the respondent landlord submits that shop in dispute is required for his disabled grand son whose disability has been certified to be 40 % by the Chief Medical Officer. It is also submitted that petitioner tenant had also started business of "Atishbazi" since 2003 from the shop in dispute and has taken licence No. 43/2003, Etawah, dated 2.8.2003 in this regard in the name of his son. It is argued that stand of the petitioner that he has no other business is therefore wholly incorrect also for the reason that petitioner has taken another shop no. 140, Katra Tekchand, in the same premises where the shop in dispute is situated. Relying on the decisions in Murli Dhar Vs. XIIth Additional District Judge, Meerut and others (1996(2) ARC 492), Shiromani Kant alias Mani Kant and others Vs. Additional District Judge, Meerut and others ( 1999 (1) ARC 335 ) and Permanand Vs. District Judge, Jhansi and others (1997 (2) ARC 607), he further submits that grand son comes within the definition of family. 10. The submission of learned counsel for the petitioner regarding reversal of findings of fact in respect of consideration of bonafide need and comparative hardships by the appellate court, pales into insignificance since the petitioner tenant has acquired and occupies a vacant shop no. 140, Katra Tekchand, Etawah where he can conveniently shift as he is not using it for any purpose, hence in view of this admitted fact, this Court is not inclined to interfere with the matter in exercise of its extraordinary powers under Art. 226 of the Constitution. 11. The counsel has failed to establish any illegality in the order of the lower appellate court. It is settled law that every member of the family of the landlord has a right to establish himself in business or employment. The grandson of the landlord is a handicapped person. The grandfather though old can always be at hand if he is able to establish his grandson in the shop in the same building where he resides on the first floor. Even if other member of landlord's family are doing various business, it will not preclude the landlord to establish his grandson in business in the shop under the tenancy of the petitioner particularly when the petitioner tenant has acquired a vacant shop no. 140, Katra Tekchand, Etawah. 12. Even if other member of landlord's family are doing various business, it will not preclude the landlord to establish his grandson in business in the shop under the tenancy of the petitioner particularly when the petitioner tenant has acquired a vacant shop no. 140, Katra Tekchand, Etawah. 12. The writ petition is accordingly dismissed. No order as to costs.