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Uttarakhand High Court · body

2010 DIGILAW 900 (UTT)

Mumtaz Ahmad v. Mohd. Usman and others

2010-12-27

TARUN AGARWALA

body2010
Tarun Agarwala, J.;- The landlord after purchasing the shop in question and, after waiting for the stipulated period, filed a release application u/S 21 (1) (a) of the U.P. Act No. 13 of 1972 for the release of the shop No. 331 at Mallital, Nainital on the ground of the personal need to set up a business for his two unemployed sons. The petitioner/tenant resisted the suit on the ground that his father late Shri Muneer Ahmad Shamshi had taken a roofless structure on lease from one Gusain Dutt, the original owner and landlord of the premises in question. After the death of Gusain Dutt, the property devolved upon his son Bhagwan Dutt from whom the present landlord had purchased the building. The petitioner contended that the roofless structure was taken from the original landlord by his father with the stipulation that the shop would be constructed by the petitioner's father at his own expense and that the petitioner's father would never be evicted except on the ground of default of payment of rent and, in the eventuality, the tenant is evicted, he will take away the super structure that he had constructed. 2. Before the institution of the suit, a notice was given by the present landlord terminating the tenancy and intimating the tenant to vacate the premises in question. The present petitioner filed a reply that he could not be evicted as a perpetual lease was executed in his favour. Subsequently, a release application was filed in which a preliminary objection was filed with regard to the maintainability of the writ petition on the ground that a perpetual lease was given on the basis of which the petitioner could not be evicted. In support of the stand taken by the petitioner, an affidavit of one Khalil Ahmad was filed indicating that through his intervention, a roofless structure was let out to the father of the petitioner in the year 1935 with the stipulation that the shop would be constructed at the expense of the petitioner and that he would not be evicted except on the ground of default. The preliminary objection was rejected by an order dated 13/12/2007. 3. Subsequently, the Prescribed Authority, after considering the material evidence on record, rejected the release application on the ground that the landlord had not been able to prove the bonafide need either for himself or for his sons. The preliminary objection was rejected by an order dated 13/12/2007. 3. Subsequently, the Prescribed Authority, after considering the material evidence on record, rejected the release application on the ground that the landlord had not been able to prove the bonafide need either for himself or for his sons. The Prescribed Authority found that the landlord had two vacant shops in his possession on the ground floor of his residential house which he could utilize himself or to set up a business for his sons. The trial court, however, rejected the stand of the petitioner/tenant with regard to the roofless structure being given to his father on a perpetual lease. The Prescribed Authority relied upon various certified copies of the municipal assessment orders to indicate that the shop was in existence prior to the letting out to the petitioner's father and, consequently, dispelled the theory raised by the petitioner to the effect that a roofless structure was let out to the petitioner's father in the year 1935. 4. The landlord, being aggrieved by the rejection of the release application, filed an appeal which was allowed and the petitioner was directed to vacate the premises in question. 5. The appellate court found that there was a genuine requirement of the premises in question to set up a business for his sons. The lower appellate court found that the two sons of the landlord were unemployed and that he had no other shops or premises which were vacant and which could be used by the landlord to set up a business for his two sons. The appellate court 3 found that the two shops on the ground floor of the residential building were not vacant and could not be used for business purposes. The lower appellate court also found that the plea of the tenant that a roofless structure was let out to the petitioner's father in the year 1935 was not based on any evidence on record. 6. The tenant, being aggrieved by the order passed by the appellate court, has filed the present writ petition. 7. Heard Shri Ishtiaq Ahmad Khan, the learned counsel for the petitioner and Shri Rajendra Dobhal, the learned Senior Counsel duly assisted by Shri D.C.S. Rawat, the learned counsel for the landlord/opposite party. 8. 6. The tenant, being aggrieved by the order passed by the appellate court, has filed the present writ petition. 7. Heard Shri Ishtiaq Ahmad Khan, the learned counsel for the petitioner and Shri Rajendra Dobhal, the learned Senior Counsel duly assisted by Shri D.C.S. Rawat, the learned counsel for the landlord/opposite party. 8. The learned counsel for the petitioner submitted that the evidence of the court below to the effect that the shop was in existence prior to the letting out to the shop to the petitioner's father in the year 1935 was not based on any material evidence on record and that the findings arrived at by the courts below are based on surmises and conjectures. The learned counsel further submitted that the finding that the shop No. 331 was earlier numbered as shop No. 214 is based on no evidence. The learned counsel further submitted that the lower appellate court committed a manifest error in arriving at a conclusion that the need of the landlord was genuine and bonafide in order to set up a business for his two sons who were unemployed when, infact, there was material evidence on record to conclude and arrive at a finding that the landlord had two vacant shops in his possession on the ground floor of his residential house. The learned counsel further submitted that the additional evidence filed in the rejoinder affidavit of the landlord cannot be taken into consideration unless leave of the court was taken. Since leave of the court was not taken, the said evidence could neither be taken into consideration nor relied upon. In support of his submission, the learned counsel for the petitioner relied upon a decision of the Division Bench of 4 the Allahabad High Court in the case of Pratap Narain Vs. Vth Addl. District Judge, Allahabad and others, 1998 (2) ARC 184 . 9. On the other hand, the learned counsel for the landlord submitted that the petitioner was unable to prove his case either before the Prescribed Authority or before the lower Appellate Court and that his stand that a perpetual lease was given to him and a roofless structure was given to the petitioner's father is based on no evidence and that the affidavit of Khalil Ahamad could not be relied upon. The learned counsel submitted that on the basis of the evidence filed by the landlord, it was clear that the shop was in existence in the year 1925 and that a roofless structure was let out to the petitioner's father in the year 1935. The landlord submitted that on the basis of the certified copies of the municipal assessments orders filed before the Court below would clearly indicate that the shop number 331 was earlier numbered as shop number 214 which gave a clear indication that the shop was in existence in the year 1925. 10. Having heard the learned counsel for the parties at some length, the Court finds that the stand of the petitioner that his father was given a roofless structure on which his father had built the shop in question at his own expense and that there was a stipulation in the oral arrangement that his father would not be evicted from the shop in question except on the ground of default has not been proved by any cogent evidence. The affidavit of Khalil Ahmad indicating that the shop was given to the petitioner's father on the ground of his intervention and that a perpetual lease was given by itself cannot be relied upon as the gospel truth. Something more is required to be adduced by the petitioner. In the present case, the Court finds that the erstwhile landlord was alive from whom the opposite party had purchased the building. The petitioner could have filed the affidavit of the erstwhile landlord to support his stand with regard to the perpetual lease. This was not done and, consequently, the court finds that 5 the contention of the petitioner that a perpetual lease was granted to the petitioner's father was not proved by any cogent evidence. It is settled law that a perpetual lease is required to be registered. In the present case, there is no such lease existing on record except the statement of the petitioner that some oral arrangement was arrived at in the year 1935. 11. On the other hand, the stand of the landlord that the shop number 331 was earlier numbered as shop number 214 is not based on any material evidence on record. In the present case, there is no such lease existing on record except the statement of the petitioner that some oral arrangement was arrived at in the year 1935. 11. On the other hand, the stand of the landlord that the shop number 331 was earlier numbered as shop number 214 is not based on any material evidence on record. The court has perused the assessment orders which has been filed as various annexures to the writ petition and which were also part of the record of the court below. The court does not find anywhere that the shop number 331 was earlier numbered as shop number 214. Consequently, the court is of the opinion that the finding of the trial court as well as of the lower appellate court holding that the shop number 331 was also numbered as 214 cannot be deciphered from these municipal assessment orders and, consequently, concludes that the findings was based on presumption which, in the opinion of the Court, cannot be allowed to be done. A finding of fact can only be given on the basis of a clear evidence being brought on record and such presumptions cannot be drawn. 12. The contention of the petitioner that the additional evidence brought on record by way of rejoinder affidavit could not be taken into consideration unless leave of the court was taken looses importance in as much as most of the documents annexed to the rejoinder affidavit were the municipal assessment orders which was brought on record to show that the shop number 331 was earlier numbered as shop No. 214. These assessment orders does not help the landlord. In any case, the court finds that such objection could not be raised by the petitioner at this stage. From a perusal of the record, the court finds that these documents were filed with the rejoinder affidavit but no objections were taken by the petitioner and only at the stage when the matter was being 6 heard that such an objection was raised. The purpose of not considering the additional evidence in the rejoinder affidavit is for a solitary purpose, namely, that the other side should not be taken by surprise. But when the documents brought on record is there for a period of time it is not open to the petitioner to contend that the additional evidence could not be considered. The purpose of not considering the additional evidence in the rejoinder affidavit is for a solitary purpose, namely, that the other side should not be taken by surprise. But when the documents brought on record is there for a period of time it is not open to the petitioner to contend that the additional evidence could not be considered. Further, the Court finds that since the documents had been filed at an earlier point of time, the petitioner could have filed additional evidence to rebut the evidence that was brought on record by the landlord through its rejoinder affidavit. This was not done and, consequently, the Court is of the opinion that such technical objection at a late stage could not be raised. 13. One glaring fact which the Court finds and which both the courts have missed is, that the landlord is doing his business from a tenanted accommodation. He has purchased the shop and, after waiting for the mandatory period of three years, filed the release application for his personal need. The fact that the landlord is carrying on his business from a tenanted accommodation is an admitted fact and, consequently, on this short ground the bonafide need exists to carry on his business from the shop which he has purchased. Once a landlord purchases a building, he has a right to get the shop released for his personal need. In the present case, the need has been shown to set up a business for his two unemployed sons. The fact that his two sons are unemployed has not been disputed by the petitioner. The courts below has also given a finding that his two sons are unemployed. 14. Much stress was laid by the petitioner to the effect that two shops are lying vacant on the ground floor of the residential house of the landlord which can be utilized to set up the business of his two sons and which finding was given by the Prescribed Authority but was reversed on a frivolous ground by the lower appellate court. The arguments of the learned counsel for the petitioner seems attractive but the Court finds that it has no merit and the 7 reason is, that the residential house where the landlord is residing and where the two shops are located on the ground floor is not owned by the landlord. The arguments of the learned counsel for the petitioner seems attractive but the Court finds that it has no merit and the 7 reason is, that the residential house where the landlord is residing and where the two shops are located on the ground floor is not owned by the landlord. The record indicates that the owner of the residential building where the two shops are located belongs to Smt. Majhavi Usman, the daughter of the landlord. Nothing has been brought on record to indicate that the building is in fact belongs to the landlord and that it was entered in the name of the daughter as a benami. In the light of the aforesaid, the two shops on the ground floor of the residential building which is owned by the daughter of the landlord cannot be taken into consideration to set up the business for the two unemployed sons of the landlord. 15. In the light of the aforesaid, the Court finds that the need for setting up a business for the unemployed sons of the landlord has been proved and the same is bonafide and that there is a genuine requirement for the landlord for additional accommodation. The lower appellate court was justified in holding that there was a bonafide need for the release of the shop. This court finds that the shop was rightly released in favour of the landlord. 16. In the light of the aforesaid, the Court does not find any error in the impugned order. The writ petition fails and is dismissed. However, the release application is allowed subject to the condition that instead of the landlord paying two years rent which the Court finds to be a meagre amount, the same is modified to the extent that the landlord will pay to the tenant a sum of ` 20,000/- and, on such deposit before the trial court, the premises would be released. The amount so deposited can be withdrawn by the tenant after vacating the premises.