Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 426 (ALL)

Anil Jaiswal v. Vandana Puri

2011-02-22

RAKESH TIWARI

body2011
JUDGMENT Hon'ble Rakesh Tiwari, J. Heard learned counsel for the parties on the question of delay condonation as well as on restoration application. Cause shown is sufficient. The application for condonation of delay in filing the restoration application is allowed and the delay is condoned. The order dated 27.10.2011 dismissing the writ petition in default is recalled. The writ petition is restored to its original number and status. 2. Heard learned counsel for the parties also on merit and perused the record. This writ petition has been filed for quashing the order dated 5.3.2009 passed by the Additional District Judge, Court No. 10, Kanpur Nagar in Rent Revision No. 40 of 2006, Anil Jaiswal versus Smt. Vandana Puri, the order dated 2.3.2005 and the order dated 18.1.2006 passed by the Additional City Magistrate, Vth/Rent Control and Eviction Officer, Kanpur Nagar in Case No. 95 of 2003, Smt. Vandana Puri versus Anil Jaiswal. 3. Brief facts of the case are that the plaintiff-respondent filed an application under Section 16(1)(b) of U.P. Act No. 13 of 1972, which was registered as Case No. 95 of 2003, Smt. Vandana Puri versus Anil Jaiswal before the Additional City Magistrate Vth/Rent Control and Eviction Officer for release of a disputed garage in premises No. 8/213-B, Arya Nagar, District Kanpur Nagar under the tenancy of the petitioner. It was stated that in the beginning one Mr. Singh was tenant in the garage situated on the ground floor of the building who vacated and gave the possession of it to the petitioner; that at present the petitioner and one Amit Gupta have possession over the disputed premises for the last 10 years without any allotment; that the petitioner has landed property at Lalbungalow, Kanpur and at other places. As he has no need of the said garage, therefore, he has sublet the said garage to Amit Gupta who is running a Beer shop therein as such the premises in dispute is fully vacant. It was also stated that the husband of the respondent has a Maruti Van and there being no space with her for parking the said Maruti Van with security, she required the premises in dispute. 4. Upon receipt of the application the Additional City Magistrate Vth/ Rent Control and Eviction Officer called a report from the Rent Control Inspector, who submitted his report dated 1.2.2003. 5. 4. Upon receipt of the application the Additional City Magistrate Vth/ Rent Control and Eviction Officer called a report from the Rent Control Inspector, who submitted his report dated 1.2.2003. 5. The petitioner filed objection against the report of the Rent Control Inspector denying the allegations made by the plaintiff respondent asserting therein that the landlord is having sufficient landed property, hence she has no need for the premises in dispute. It was further stated that neither the disputed property is vacant nor there is any likelihood of it being vacated in future and that the tenant is not defaulter. 6. Learned counsel for the petitioner submits that the Additional City Magistrate Vth/ Rent Control and Eviction Officer, Kanpur Nagar by ignoring the evidence on record illegally and wrongly allowed the application of the respondent vide its order dated 2.3.2005 declaring the disputed premises vacant. Aggrieved by the aforesaid order dated 2.3.2005 and 18.1.2006 the petitioner filed Rent Revision No. 40 of 2006, Anil Jaiswal versus Smt. Vandana Puri before the Additional District Judge, Court No.10, Kanpur Nagar. The lower appellate Court by order dated 5.3.2009 dismissed the revision confirming the orders dated 2.3.2005 and 18.1.2006 passed by the Additional City Magistrate Vth/ Rent Control and Eviction Officer, Kanpur Nagar. 7. The contention of learned counsel for the petitioner is that the courts below have erred in holding that the plaintiff opposite party is in need of the accommodation under the tenancy of the petitioner. It is stated that at present the petitioner is running Mutton shop in the disputed premises which is his only source of livelihood; that the order declaring vacancy dated 2.3.2005 is also illegal as the portion in question is not vacant in the eye of law and the petitioner is not an illegal occupier but is a legal tenant of the shop in dispute. The rent receipts issued by the landlord have been filed by the petitioner in support of his case before the courts below but all the documents have been overlooked by the courts below as such have wrongly declared the vacancy and the findings recorded are illegal are illegal, unjust, perverse and against the material on record. 8. He also submits that the plaintiff opposite party is not in need of any accommodation because as per her own showing she is living in premises no. 8. He also submits that the plaintiff opposite party is not in need of any accommodation because as per her own showing she is living in premises no. 95/14, Parade Kanpur Nagar, which is far away from the residential house of the respondent and it is not practically possible for the opposite party to park her vehicle in the garage said to be situated at 10 kilometres away from her residential house and the story has been concocted by the opposite party which the courts below have failed to appreciate in view of the evidence filed by the petitioner and have thus passed illegal orders. 9. He further submits that comparatively the petitioner is having more need of the premises in question than the respondent and that it is apparent from the record that there is no bonafide need of the respondent for release of the disputed premises and the need is based upon only his desire and the application could not be maintainable only on the basis of desire. 10. Per contra, learned counsel for the respondent submits that the petitioner had sub let the shop in dispute to one Amit Gupta for opening Beer shop for which the licence has been granted in his name and not in the name of the petitioner. 11. In rebuttal, learned counsel for the petitioner submits that Amit Gupta was a co-sharer in the business of the petitioner and that he had not sub let the shop in question to him. 12. The petitioner has not filed any documentary evidence to show that Amit Gupta was co-partner in the business of PCO and Photocopying run by the petitioner and was in fact sharing profits and loss from the said business. It is stated that the licence is only in the name of Amit Gupta, therefore, there is irresistible conclusion that Amit Gupta was sub tenant in the shop in question as he has also admitted that the petitioner was partner in the beer shop business of 20% on profit. Admittedly, it is apparent from the record that Amit Gupta was not co-sharer in the business of the petitioner, rather the petitioner was taking 20% of the profits from the beer shop in lieu of sub tenancy/rent from Amit Gupta in which he claims to be co-sharer. Admittedly, it is apparent from the record that Amit Gupta was not co-sharer in the business of the petitioner, rather the petitioner was taking 20% of the profits from the beer shop in lieu of sub tenancy/rent from Amit Gupta in which he claims to be co-sharer. It is clear case of sub-tenancy and even if the landlord has other properties in other places that will not regularize the tenancy of the petitioner and to make him entitled to remain in possession of the shop as he had allowed Amit Gupta to occupy the same as sub tenant for doing business of beer shop. 13. For all the reasons stated above, the writ petition is dismissed. No order as to costs. 14. As prayed by the learned counsel for the petitioner two months' time is allowed to the petitioner for vacating and handing over the peaceful possession of the shop in dispute to the landlord. The tenant shall pay advance of two months along with arrears of rent, if any by bank draft within a month to the landlord and shall also file an undertaking before the Prescribed Authority within the aforesaid period of one month to the effect that he will handover peaceful possession of the shop in question to the landlord within two months pursuant to orders of this Court. In case of failure to comply with any of the conditions imposed will entitle the landlord to get the possession of shop through court proceedings in accordance with law.