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2011 DIGILAW 323 (ALL)

Lumba Auto Traders v. Vijay Kumar Jain

2011-02-09

RAKESH TIWARI

body2011
JUDGMENT Hon'ble Rakesh Tiwari, J. Heard learned counsel for the parties and perused the record. The brief facts of the case are that an application under section 21 (1) (a) of U.P. Act No. 13 of 1972 was filed by the Respondent-landlord before the Civil Judge (Junior Division) Kanpur Nagar. The suit was allowed in favour of the landlord holding that he had proved his bonafide need and comparative hardship. Aggrieved by the said order dated 8.4.2009 passed by Civil Judge (Junior Division), Kanpur Nagar, the petitioner preferred an appeal before the Additional District Judge, Kanpur Nagar. The appeal was also dismissed by the appellate authority confirming the judgment and order dated 8.4.2009 by its order dated 10.12.2010. 2. The contention of learned counsel for the petitioner is that the courts below neither have perused the evidence on record nor appreciated the grounds taken by the petitioner as such finding of the trial court allowing the suit and dismissing appeal of the petitioner is illegal. He has argued that the courts below has not considered the fact that the landlord has given first floor of the building on rent to Ram Kumar without any allotment and part of the building has been given on rent to Inland Transport Company. It has also been stated by the petitioner that shop was under the tenancy of Daljeet Kumar Bhatiya in which a lock was put by the petitioner. The Prescribed Authority has held that the tenant has neither filed any document nor led any evidence in support of his above contention and that the aforesaid averments of the tenant have been disputed by the landlord interalia that he has not given any portion of the building without any allotment to Ram Kumar or any other person or has put his lock in any shop of Daljeet Kumar Bhatiya. 3. The appellate court while confirming the order of the trial court has recorded a categorical finding of fact that petitioner has alternative accommodation in his possession in the same city and, therefore, hardship suffered by the landlord is greater and need of the landlord is bonafide. 4. 3. The appellate court while confirming the order of the trial court has recorded a categorical finding of fact that petitioner has alternative accommodation in his possession in the same city and, therefore, hardship suffered by the landlord is greater and need of the landlord is bonafide. 4. The findings recorded by the appellate court with regard to availability of alternative accommodation are as under: ^^fdjk;snkj ds ikl oSdfYid LFkku miyC/k gSaA bl rF; dh lk{; vius 'kiFk i= dkxt la0 22x vkSj 25x esa izfr mRrjnkrk edkunkj us nh gSA i=koyh ij miyC/k lk{; ds ifjizs{; esa Åij m)fjr uthjksa esa izfrikfnr fl)kUrksa dks n`f"V j[krs gq, ;g lkfcr gksrk gS fd izfrmRrjnkrk edkunkj dh dfBukbZ vihykFkhZ fdjk;snkj dh rqyuk esa vf/kd gSA fo}ku fofgr izkf/kdkjh us i=koyh ij miyC/k lk{; dh lgh foospuk dh gS vkSj lgh fu"d"kZ fudkys gSa fd fookfnr fdjk;snkjh dh nqdku ds fy;s izfrmRrjnkrk edkunkj dh vko';drk okLrfod] ln~Hkkoh vkSj lPph gS rFkk rqyukRed dfBukbZ izfrmRrjnkrk edkunkj dh vihykFkhZ fdjk;snkj dh rqyuk esa vf/kd gSA fo}ku fofgr izkf/kdkjh ds bu fu"d"kksZa dh iqf"V dh tkrh gSA bu fu"d"kksZ ds vk/kkj ij fo}ku fofgr izkf/kdkjh us izfrmRrjnkrk edkunkj ds fueqZfDr izkFkZuk i= dks Lohdkj dj dksbZ =fV fof/k vFkok rF; dh ugha dh gSA vU; fdlh fcUn ij cy ugha fn;k x;kA mijksDr foospuk ds vk/kkj ij eSa bl fu"d"kZ ij igqaprk gwWa fd vihy esa dksbZ cy ugha gS] vihy fujLr gksus ;ksX; gSA vkns'k vihy fujLr dh tkrh gSA fo}ku fofgr izkf/kdkjh ds iz'uxr fu.kZ; o vkns'k dh iqf"V dh tkrh gSA fnukad 10-12-2010 g0v0 10-12-2010 ¼lqjsUnz iky flag½ vij ftyk tt U;k;ky; la0 15 dkuiqj uxj 5. Finding of the court below that petitioner has an alternative accommodation/shop for his business is not disputed hence question of bonafide need pales into insignificance. Whether the landlord has other accommodation is not relevant in such circumstances where the tenant has alternative accommodation of his own. 6. In view of the above, there is no illegality or infirmity in the order dated 10.12.2010 passed by the appellate court. 7. The writ petition is, accordingly, dismissed. No order as to costs.