Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1111 (ALL)

Mohd. Anis v. Mohd. Yunus

2011-04-29

PANKAJ MITHAL

body2011
Pankaj Mithal, J.;- A clash of interest between the landlord and the tenant in connection with shop of the dimension 7 ft. x 9 ft situate in Mohalla Saidwara, Etawah is the cause involved in this writ petition. 2. The respondent landlord wants the shop to be vacated whereas the petitioner-tenant insists for remaining in its possession on the ground that he has acquired sufficient goodwill as tenant since 1960 and that the need set up by the landlord is not genuine and bona fide. It is worth noting that the respondent-landlord is a Homeopathic Medical Practitioner. He was the owner and landlord of the shop in dispute. He had sold the shop some time in the year 1980 and had repurchased it in the year 1990. The fact that the respondent is presently the owner and landlord of the shop in question is not dispute. 3. The respondent-landlord had earlier applied under Section 12/16 of U.P. Act No.13 of 1972 for declaring the shop to be vacant and for its release in his favour for residential purposes. He was unsuccessful in the said litigation. 4. He could not even succeed in a suit for arrears of rent and eviction. 5. It is thereafter that he filed the present release application under Section 21(1)(a) of the Act for the need of his younger son Mobine. The said release application on contest by the petitioner-tenant has been allowed by the prescribed and the order of release has been affirmed by the appellate authority as well. 6. I have heard Sri Anoop Trivedi, learned counsel for the petitioner and Sri S. Ashraf Ali, learned counsel appearing for the respondent-landlord. 7. Three arguments have been advanced on behalf of the petitioner. First the need of the landlord as set up is not bona fide in view of the previous litigation between the parties. The second argument is that the respondent-landlord has sold one of his shops in the year 1999 and has let out the other one in favour of one Chandan Verma, after getting it vacated from the previous tenant. Lastly; it has also been submitted that the courts below have failed to evolve the comparative hardship of the parties and the suitability of the alternative accommodation has not been properly dealt with. 8. Lastly; it has also been submitted that the courts below have failed to evolve the comparative hardship of the parties and the suitability of the alternative accommodation has not been properly dealt with. 8. It is admitted that the respondent is the owner and land-lord of the shop in question and that the petitioner is a tenant therein on a rent of Rs. 60/- per month. The younger son of the respondent land-lord is High School fail and is unemployed. 9. The previous litigation for the vacation of the petitioner tenant on the ground of default in payment of rent is of no consequence. The said litigation in no way bars his claim for getting the shop in question released under Section 21(1) (a) of the Act. 10. The proceedings for declaring the shop to be vacant and for its release under Section 16 of the Act for residential purpose would not come in the way of the present release proceedings under Section 21 (1) (a) of the Act. First, the earlier release of the shop in question was applied on the ground of residential use. Secondly, such a release could not have been considered unless there was vacancy in respect of the shop. Thus, the finding on the above aspect recorded by the courts below can not be said to be illegal. 11. The respondent land-lord acquired a shop situate at Mohalla Navrangabad in a suit for partition and the said shop was sold by him vide sale deed dated 8.6.1999 to one Abhai Ram. The sale of the said shop by the respondent land-lord in no way proves that his need set up in the present release application is not genuine or bona-fide. The present release application was filed by the respondent land-lord in the year 2005 whereas the above shop was soled by him in the year 1999. There is nothing on record even to show that the said shop had ever come in possession of the respondent land-lord in a vacant state. Moreover, the said shop was sold by the respondent land-lord to solemnize the marriages of his two daughters which took place in November 1999. 12. The courts below have also not accepted the argument of the petitioner tenant that the respondent land-lord has let out one of the shops to Chandan Verma. The alleged shop no. Moreover, the said shop was sold by the respondent land-lord to solemnize the marriages of his two daughters which took place in November 1999. 12. The courts below have also not accepted the argument of the petitioner tenant that the respondent land-lord has let out one of the shops to Chandan Verma. The alleged shop no. 88 no doubt situate adjoining to the shop in question no. 86. The averments that the respondent land-lord got it vacated from the previous tenant Santosh Kumar and had given it to Chandan Verma has been denied by the respondent land-lord on affidavit by stating that no person named Chandan Verma is a tenant in the said shop. A document dated 14th August 1997 was also brought on record in connection with the aforesaid shop wherein the tenant Santosh Kumar had accepted that he continues to be the tenant for the last 22 years and is doing his business form the said shop. There is no positive evidence on record to establish that the said shop was let out to Chandan Verma and is being occupied by him. Thus, the finding in this regard recorded by the courts below is a pure finding of fact recorded on the appraisal of the evidence which is not liable for interference in writ jurisdiction. 13. The finding of the prescribed authority that the need of the respondent land-lord for the shop in dispute for settling his younger son Mobin in business is genuine and bona-fide as affirmed by the appellate authority suffers from no error of law or illegality. 14. The prescribed authority while considering the comparative hardship of the parties apart from the other things have recorded a finding that the petitioner tenant on 7.9.1978 had purchased a plot of land on the Etawah Gwalior road. He had constructed three shops and a house on the said plot. He has let out one of the shops to Mohd. Shahid on rent and out of the other two he is doing business in one of them whereas third shop is still lying vacant and in his possession. The said vacant shop is only about 3 to 4 kms., from the shop in dispute. The possession of the petitioner-tenant on one of the shops is established by paper no. 26 Ga, possession memo dated 19.1.2005. 15. The said vacant shop is only about 3 to 4 kms., from the shop in dispute. The possession of the petitioner-tenant on one of the shops is established by paper no. 26 Ga, possession memo dated 19.1.2005. 15. In view of the aforesaid, the above finding with regard to comparative hardship suffers from no illegality. 16. Thus, in the totality of the facts and circumstances no case for interference in exercise of writ jurisdiction is made out. The writ petition is devoid of merit and deserves to be dismissed. 17. In the end however Sri Anoop Trivedi, learned counsel for the petitioner tenant prayed that some reasonable time may be allowed for vacating the shop in question. The prayer though resisted, in the interest of justice requires sympathetical consideration. It is therefore, provided that the petitioner tenant may vacate the aforesaid shop within a period of six months from today provided he furnishes undertaking on affidavit before the prescribed authority within one month that he would peacefully vacate the said shop within the aforesaid period and handover its possession without any let or hindrance to the respondent land-lord within the aforesaid time and would clear all dues and continues to make payment for the use and occupation of the shop at a rate which has been fixed by this Court vide order dated 1.6.2009 till its actual delivery of possession. 18. The writ petition is dismissed with the above observation.