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2012 DIGILAW 2023 (ALL)

Jokhan Alias Sita Ram v. Vith Addl. District Judge, Jaunpur and Others

2012-09-04

SUDHIR AGARWAL

body2012
Sudhir Agarwal, J.:— 1. Heard Sri Sanjay Kumar, learned counsel for the petitioner and perused the record. 2. The petitioner is the landlord of the building in question which is a shop. 3. The writ petition is directed against judgment and order dated 20th November, 1998 passed by VIth Additional District Judge, Jaunpur allowing respondents- tenants' appeal and setting aside Prescribed Authority's judgment and order dated 21st July, 1994 and dismissing petitioner's application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as "Act, 1972") for release of accommodation in question after ejectment of the respondents-tenants. 4. It is contended that shop in question was required by petitioner-landlord for establishing his son Harish Chandra and it was rightly allowed by Trial Court but Appellate Court has illegally set aside the aforesaid order. 5. A copy of the application has been filed by the petitioner as Annexure 1 to the writ petition. A perusal whereof shows that petitioner has only two sons. Both are major and married and have their own family. The petitioner has also stated in para 10 of the application that both the sons are earning but whatever they earn, they spent on their family, still it does not meet requirement of petitioner and entire family. In the application there is no averment at all that shop in question was required for settling petitioner's younger son Harish Chandra for doing any business. It appears that subsequently an affidavit was filed by petitioner before Trial Court in which he made out a case that he has two sons namely Ram Chandra and Harish Chandra. Ram Chandra has four children while Harish Chandra has no issue. The elder son Ram Chandra is working as a Peon in Union Bank while the second son Harish Chandra is unemployed. He has no income of his own and depends on the petitioner. Therefore, for his settlement and starting a business, shop in question is required by the petitioner. 6. Trial Court, it appears, without going through the pleadings of petitioner, but considering affidavit of petitioner whereby he has made out a new case, allowed petitioner's application for release. The said judgment has been set aside by Appellate Court. 7. Therefore, for his settlement and starting a business, shop in question is required by the petitioner. 6. Trial Court, it appears, without going through the pleadings of petitioner, but considering affidavit of petitioner whereby he has made out a new case, allowed petitioner's application for release. The said judgment has been set aside by Appellate Court. 7. Besides other, Appellate Court has also noticed that petitioner has not stated anywhere in what manner he can settle his second son and all relevant facts to demonstrate that need, which he has addressed in his affidavit, was genuine though in the application filed by the petitioner no such pleadings were taken. It is well established that evidence beyond pleadings is not permissible and that too contrary to the pleadings is wholly impermissible. In para 10 of the application, petitioner claims that both the sons are earning but in the affidavit he came with a new case that the second son is unemployed and is not earning at all. The affidavit of the petitioner, which has been treated to be an evidence, was contrary to the pleadings of the petitioner and therefore could not help the petitioner for supporting his case. The Trial Court failed to appreciate this aspect of the matter. The Appellate Court thus has rightly interfered by reversing Trial Court's judgment. 8. In the aforesaid facts and circumstances and going through to the impugned appellate order, I find no error apparent on the face of impugned order warranting interference in the writ petition. The writ petition lacks merit. Dismissed. 9. Interim order, if any, stands vacated. _____________