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2013 DIGILAW 2385 (ALL)

Mohd. Shahid & Ors v. Mohd. Sahifiq & Ors.

2013-09-23

KRISHNA MURARI

body2013
Krishna Murari, J. Heard learned counsel for the petitioners and Shri M.F. Beg appearing for the respondents. 2. This is tenants' writ petition under Article 226 of the Constitution of India arising out of proceedings under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 3. Dispute is in respect of accommodation bearing Municipal No. 97/217, Talak Mohal, Kanpur Nagar consisting two rooms, varandah, courtyard, kitchen, latrine and bathroom, wherein the petitioners were tenant on a rent of Rs.10/- per month. The landlord-respondents moved an application under Section 21 (1) (a) of the Act for release of the aforesaid accommodation on the ground that the same is bona fidely required for residence of their family. The application was filed on the allegations that the family of applicant no. 1 consists himself, his wife and three daughters, who were residing in two rooms on first floor of house No. 97/238, Talak Mohal, Kanpur Nagar and family of applicant nos. 2 and 3 consists of themselves and 7 other members, who were residing in two rooms and small courtyard having a common bathroom in the same house no. 97/238. It was further pleaded that the family of applicant no. 4 consists of five members, who were living in two small rooms and a varandah in house no. 97/217, whereas the family of tenant consists of seven persons, out of one Md. Yamin has died. 4. The application was contested by the tenant-petitioners denying the allegations. It was pleaded that there was no requirement of the landlords and that Chand Bibi, daughter of applicant no. 1 was married and was residing in Sarsaul with her in-laws and she has wrongly been included in the family. It was also pleaded that they have open terrace where they can get new construction made according to their need. 5. Prescribed authority after analysing the entire pleading as well as evidence brought on record by the parties that there are total 19 members in the family of the landlords, out of which 13 are major and the accommodation available to them is not sufficient and that for want of accommodation, the marriage of the major male members is not being solemnized and, thus, the need of the landlord was bona fide, pressing and genuine. 6. 6. The assertion of the tenants that the landlords have a house in Machharia, Kanpur having four rooms, two varandah, courtyard on the ground floor and another rented accommodation in 96/46, Beconganj, Kanpur and another accommodation no. 97/296, Talaq Mohal are available with them, was disbelieved for want of any evidence to establish the said fact. Prescribed authority also recorded a finding that the tenant-petitioners have failed to bring on record any such evidence, which may go to show that any effort was ever made by them during the pendency of the proceedings for finding any alternative accommodation and, thus, the factor of comparative hardship was also in favour of the landlords . 7. Findings recorded by the Prescribed authority was affirmed by the appellate court and the appeal of the tenant-petitioners was dismissed. Appellate court has affirmed the findings recorded by the trial court that looking to the size of the family of the landlords, the accommodation available by them was not sufficient and, thus, the need was bona fide and genuine and the question of comparative hardship was also in favour of the landlords. 8. A perusal of the judgment of Prescribed authority as well as appellate court goes to show that findings of bona fide, genuine need and comparative hardship have been recorded taking into consideration the evidence and material on record. It is well established that finding on issue of bona fide need and comparative hardship are findings of fact. Equally settled is the proposition that this Court in exercise of jurisdiction conferred by Article 226 of the Constitution of India does not interfere with the findings of fact, unless it is demonstrated that they are vitiated by manifest error of law or are patently perverse or based on non-consideration or misreading of any material piece of evidence. 9. Learned counsel for the petitioners, during the course of argument, has failed to demonstrate that the findings recorded by the trial court and affirmed by the appellate court are vitiated for any of the aforesaid reasons. 10. 9. Learned counsel for the petitioners, during the course of argument, has failed to demonstrate that the findings recorded by the trial court and affirmed by the appellate court are vitiated for any of the aforesaid reasons. 10. In the end, learned counsel for the petitioners submitted that since another application under Section 21 (1) (a) of the Act filed earlier in point of time, was dismissed by the prescribed authority on 01.06.1984 and appeal against the said order was also dismissed on 21.12.1987, the present application is not maintainable as barred by principles of res judicata and the courts below have wrongly failed to consider this aspect of the matter. 11. The argument does not hold any water. Rule 18 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 provides that where an application of landlord against a tenant under Section 21 for release of the building is rejected on merits and a fresh application on the same ground is made within the period of one year from that decision, the Prescribed authority shall accept the findings in earlier proceedings as conclusive, thus, it is only when a subsequent application is filed within one year, the findings recorded in the earlier proceedings become binding. 12. In the present case, the subsequent application has been filed after about 12 years. The fact cannot be disputed that during this long period of 12 years, with the change in circumstances, increase in the number of the members of the family and their age, the grounds for rejecting the earlier application will not be available in the present proceeding to dismiss the application or to hold the application to be barred by principles of res judicata. 13. Further both the courts have recorded a finding that not only there has been a change in the circumstances on account of the increase in the family members and their age, the grounds of the two applications are entirely different. Petitioners have failed to bring on record any material, which may demonstrate that grounds for release in the two applications were the same and there has been no change in the circumstances. 14. In such view of the matter, the argument advanced by the learned counsel for the petitioners in respect of the present proceedings being barred by res judicata is not liable to be accepted. 15. 14. In such view of the matter, the argument advanced by the learned counsel for the petitioners in respect of the present proceedings being barred by res judicata is not liable to be accepted. 15. In view of the above facts and circumstances and particularly the fact that writ petition is concluded by findings of fact recorded by the two courts based on proper appraisal of evidence, the impugned judgments do not call for any interference. 16. The writ petition, accordingly, fails and stands dismissed in limine. ___________________