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2010 DIGILAW 3553 (ALL)

Neeraj Rohtagi v. Uma Kejariwal

2010-11-23

SHASHI KANT GUPTA

body2010
JUDGMENT Hon'ble Shashi Kant Gupta, J.- This writ petition is directed against the judgment and order dated 31.8.2010 passed by the Additional District Judge, Court No. 12, Kanpur Nagar arising out of the order dated 17.2.2010 passed by the Vth Additional Chief Metropolitan Magistrate, Kanpur Nagar whereby the release application filed by the respondent under Section 21 of the U.P. Act No. 13 of 1972 (hereinafter referred to as the 'Act') has been allowed. 2. The petitioner is a tenant of the disputed premises. An application under Section 21 of the Act was filed by the respondent landlady? with the allegation that she is carrying on business in the name and style of Green Petals Service from a tenanted accommodation bearing House No. 111/318 Harsh Nagar, Kanpur Nagar at a monthly rent of Rs. 2420/-.? It was also alleged that the son of the opposite party is getting education at Delhi and he wants to establish his separate business, as such, the shop in question is required for setting up business for herself as well as for her son. 3. Per contra, the learned counsel for the petitioner submitted that the need of the landlord is an eye-wash and his son is already carrying on business in Delhi and in support of his contention he referred to the visiting card of the son of the landlord filed before the court below, as such, he does not require shop in Kanpur for starting any business. He further submitted that there is one more shop in the disputed premises from where the respondent as well as his son could carry on the business. 4. In reply, Sri Manoj Mishra, learned counsel for the respondent submitted that in fact there is no other shop in the premises except the shop which is being occupied by the petitioner. He further submitted that the petitioner is, in fact, referring to the garage which cannot be used as shop. 5. Heard the learned counsel for the petitioner, Sri Manoj Mishra, learned counsel for the respondents and perused the record. 6. He further submitted that the petitioner is, in fact, referring to the garage which cannot be used as shop. 5. Heard the learned counsel for the petitioner, Sri Manoj Mishra, learned counsel for the respondents and perused the record. 6. A perusal of the record goes to show that the courts below, after referring to the Commissioner's report, have very categorically held that there is no any other shop in premises owned by the landlady except the shop occupied by the petitioner and the garage, as referred by the petitioner, cannot be used as shop since the landlady and her other family members are having their own private vehicles which are parked in the gallery as well as in the garage. Both the courts below have held that the need of the landlady is bonafide and genuine, and the comparative hardship tilts in favour of the respondent landlady. The findings of fact recorded by the court below are based on material evidence and? record, and does not suffer from any perversity so as to warrant interference under Article 226 of the Constitution. Both the courts below have given cogent, convincing and satisfactory reasons while allowing the release application of the landlady. This Court cannot substitute its opinion with the opinion of the court below unless it is found that that the conclusion drawn by the lower courts are erroneous. 7. No other point has been pressed by the learned counsel for the petitioner.? 8. In the result, the petition fails and is dismissed. 9. After the passing of the aforementioned order, the learned counsel for the petitioner urged the Court to grant some reasonable time to vacate the said premises. To this, the learned counsel for the opposite party has not expressed any objection. 10. Accordingly, three months' time is granted to the petitioner to vacate premises in dispute subject to condition that the petitioner will submit an affidavit in the shape of undertaking within a month from today before the prescribed authority specifically indicating therein that he will handover peaceful possession of said accommodation without inducting any third person within a period of three months and will pay the arrears of rent along with the rent upto delivery of the possession as mentioned hereinabove within a month from today. 11. In the event of default of any of the aforesaid conditions,? 11. In the event of default of any of the aforesaid conditions,? the landlady opposite party will be at liberty to? proceed to evict the petitioner in accordance with law.