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2012 DIGILAW 752 (ALL)

Shushil Kumar v. Ved Prakash

2012-03-28

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.— 1. This writ petition has been filed against the judgment and order dated 23.12.2011 passed by Additional District Judge, Court No. 4, Bijnor upholding the order dated 21.05.2010 passed by Prescribed Authority/Civil Judge (J.D), Nageena, Bijnor in P.A. Suit No. 15 of 1987, whereby the release application filed by the respondent-landlord was allowed. Brief facts of the case are as follows:- 2. An application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 (in short the "Act") was filed by the respondent-landlord on the ground of bonafide and genuine need. It was inter-alia pleaded that the petitioner is a tenant of the disputed shop at the rate of Rs.275/- per month; It was further pleaded that he was carrying cloth business by selling it door to door. While carrying/moving with so much of weight, he became a patient of blood-pressure and was advised by Doctor not to strain himself physically. The petitioner-tenant contested the release application and filed his written statement, wherein he denied and disputed the averments made in the release application. 3. The Trial Court after perusing the material available on record allowed the release application of the landlord-respondent by order dated 21.05.2010. 4. Being aggrieved and dissatisfied with the said order, the petitioner-tenant preferred an Appeal under Section 22 of the Act, which was registered as Rent Appeal No. 09 of 2010. The said appeal was dismissed by order dated 23.12.2011. Hence the present writ petition. 5. Learned counsel for the petitioner has submitted that the order passed by the courts below are illegal, arbitrary and are based on complete misreading of the case and misconception of legal position relevant to the matter and have not considered the evidence on record in right perspective. 6. Learned counsel for the petitioner has submitted that the landlord-respondent is already in possession of four shops, wherein he is doing the business of selling and repairing the bicycle, therefore, the need of the respondent-landlord is not bonafide and genuine. Learned counsel for the petitioner-tenant further submitted that the petitioner is carrying on the business of photostat and videography in the disputed shop, which is quite near to the Munsif Court. The shop offered by the landlord to the petitioner was not at all suitable for his business, therefore, he refused the offer. 7. Learned counsel for the petitioner-tenant further submitted that the petitioner is carrying on the business of photostat and videography in the disputed shop, which is quite near to the Munsif Court. The shop offered by the landlord to the petitioner was not at all suitable for his business, therefore, he refused the offer. 7. Both the courts below recorded the findings of fact that the landlord is a old and feeble person and is a patient of high blood pressure. The shops in his possession are situated across the Railway line in Bijnor Road, which are quite far away from the main city and are not suitable for carrying on the business of cloth. 8. The court below has also recorded a finding that the landlord does not have any suitable accommodation to carry on his independent business, as such, he requires the shop in question to carry on the business of cloth. 9. The court below has also recorded a finding that apart from the disputed shop, there is one more shop situated about 37 feet away from the disputed shop in which the petitioner is carrying on business of Mobile Phone. The finding has been recorded by the courts below on the basis of the relevant material available on record. The existence of the said shop has not been denied by the petitioner, only this much has been said that the said shop was purchased jointly by his wife and his Sister in law (Bhabhi). Therefore, the petitioner is already having an alternative accommodation apart from the disputed shop. 10. It has come on the record that during the pendency of the release application, the petitioner was offered a shop, which is situated across the railway line but the same was refused by him. When the petitioner himself did not find the said shop suitable for his business, how can he expect from the petitioner to carry on business of cloth in the said shop. 11. The court below has also recorded a finding that during the pendency of the release application, the petitioner did not make any effort to search out an alternative premises and has not adduced any cogent evidence to show that he will suffer greater hardship if he is evicted from the shop in question. 12. 11. The court below has also recorded a finding that during the pendency of the release application, the petitioner did not make any effort to search out an alternative premises and has not adduced any cogent evidence to show that he will suffer greater hardship if he is evicted from the shop in question. 12. The contention of the petitioner is that he is having very good business from the disputed shop, since it is situated near the Civil Court. The contention of the petitioner has no force as it has been held in the case of Harishchandra Gupta Vs. Xth Additional District & Sessions Judge, Meerut, 2007 U.P.R.C.C, page 327 that: "if a tenant is having very good business, then he must be in a position to purchase or at least take on good rent another shop. If no such effort is made, the question of hardship has to be decided against the tenant." 13. The courts below have recorded a concurrent findings of facts that the need of the the landlord is bonafide and genuine and the comparative hardship tilts in his favour. The courts below have given cogent, convincing and satisfactory reasons while allowing the release application of the landlord. 14. The Apex court in the case of Raghvendra Kumar Vs. Firm Prem Machinery and others 2000(38) ALR (SC), has held as follows:- "It is settled position of law that the landlord is best judge of his requirement for business purpose and he has complete freedom in this matter." 15. This court in the case of Satish Chandra and others Vs. Somnath Anand and others, 2009(1) ARC 192, has held as follows: "Every adult member of family of landlord and every landlord is entitled to have separate independent business." 16. This court in the case of Brajrani Vs. Anirudha Kumar Gupta and others, ARC, 820, has held as follows: "Landlord cannot be forced to convert any residential portion into a commercial purpose, causing reduction of residential accommodation." 17. The Apex Court in the case of Rishi Kumar Govil Vs. Maksudan, 2007(4) SCC 426, has held as follows: "Every landlord and every adult member of landlords family is entitled to do independent/separate business and he can not be compelled to participate in the family business. Tenants also pleaded that landlord could do business from his residential house. The Apex Court in the case of Rishi Kumar Govil Vs. Maksudan, 2007(4) SCC 426, has held as follows: "Every landlord and every adult member of landlords family is entitled to do independent/separate business and he can not be compelled to participate in the family business. Tenants also pleaded that landlord could do business from his residential house. Courts below rightly held that no landlord can be compelled to do business from his residential house." 18. Both the courts below have given cogent, convincing and satisfactory reasons while deciding the release application. The learned counsel for the petitioner failed to point out any illegality in the impugned orders. The findings recorded by the courts below are neither perverse nor based on any extraneous or irrelevant material and have been recorded on meticulous evaluation of evidence and pleadings available on record. This Court cannot substitute its opinion for the opinion of the court below unless it is found that that the conclusion drawn by the lower courts are erroneous. 19. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned orders which may warrant any interference by this Court. 20. In the result, the petition is dismissed. No order as to costs. _