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2013 DIGILAW 2698 (ALL)

Munna Lal v. Mohd. Vakeel

2013-10-29

SIBGHAT ULLAH KHAN

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JUDGMENT Sibghat Ullah Khan, J. Heard Sri Mukesh Saxena, learned counsel for tenants petitioners and Sri Anurag Srivastava, learned counsel for landlord respondent No.1. 2. This writ petition arises out of proceedings under Section 21(1)(b) of U.P. Act No.13 of 1972. A house containing four tenements was purchased by respondent No.2, Mohd. Vakeel and his real brother Mohd. Momin. Against the four tenants, four release applications were filed, which were registered as P.A. Cases No.99, 100, 101 and 102, all of 1997. Prescribed Authority/ Civil Judge (S.D.), Mohanlal Ganj, Lucknow allowed all the release applications on 19.02.2007. The other three tenants filed appeals. Smt. Beena Devi, who is made opposite party No.2 in this writ petition also filed three appeals. The appeals were registered as Appeals No.6, 9, 10, 11, 12 and 13, all of 2007. A.D.J., Court No.1, Lucknow dismissed all the appeals on 07.12.2012. Thereafter, the other three tenants filed three writ petitions in this court being Writ Petitions No.12, 13 & 14, all of 2008. All the writ petitions were dismissed in default on 21.04.2009. Learned counsel for respondent No.1 has supplied certified copies of the said orders. Learned counsel for respondent No.1 further states that thereafter the other three tenants vacated the premises in their possession and half portion purchased by the brother of opposite party No.1 has also been demolished. This fact has been mentioned in para-13 of the writ petition also. Petitioners also filed Appeal No.61 of 2010 against the judgment of the Prescribed Authority. A.D.J., Court No.9, Lucknow dismissed the appeal on 25.09.2013, hence this writ petition. 3. Even though in the order passed by the Prescribed Authority something was said on bona fide need and comparative hardship also, however on inquiry from court, learned counsel for respondent No.1 categorically states that the application was filed only under Section 21(1)(b) of U.P. Act No.13 of 1972. In the last paragraph before the operative portion, the lower appellate court has also categorically mentioned that appellants would be entitled to take a portion on rent in the newly constructed building in accordance with Section 24 of the Act. 4. As far as dilapidated condition of the building in dispute is concerned, the courts below have found that building was quite old and in dilapidated condition. For this finding reliance has been placed upon the sale deed and Engineer's report filed by the landlord. 4. As far as dilapidated condition of the building in dispute is concerned, the courts below have found that building was quite old and in dilapidated condition. For this finding reliance has been placed upon the sale deed and Engineer's report filed by the landlord. The tenant did not file any report regarding the condition of the building. Landlord respondent No.1 also complied with the provisions of Rule 17 of the Rules framed under the Act. The argument of learned counsel for the petitioner that identity of the property in dispute was not proved is also not correct. Both the courts below have held that property in dispute in tenancy occupation of the petitioner is included in the sale deed dated 21.03.1996 through which opposite party No.1 purchased the property from Sri Shushil Kumar Sahu son of Sri Radhey Shyam. Moreover, on inquiry from court, learned counsel for petitioner categorically states that since 1997 petitioners have not paid rent to any one. This is an additional ground for refusing to exercise the writ jurisdiction. 5. Accordingly, writ petition is dismissed. 6. Tenants-petitioners are granted nine months time to vacate provided that: - 1. With effect from April, 1996 till October, 2013 rent at the rate of Rs.100/- per month is paid by the petitioners to the landlord respondent No.1 by depositing the same within one month before Prescribed Authority for immediate payment to the landlord respondent No.1. 2. Within one month from today tenants file an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of nine months they will willingly vacate and handover possession of the property in dispute to the landlord-respondent No.1. 3. For this period of nine months, which has been granted to the tenants-petitioners to vacate, they are required to pay Rs.9000/-( at the rate of Rs.1000/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-respondent No.1. 7. In case of default in compliance of any of these conditions tenants-petitioners shall be evicted through process of Court after one month. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-respondent No.1. 7. In case of default in compliance of any of these conditions tenants-petitioners shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs.9000/- and rent at the rate of Rs.100/- per month from April, 1996 till October, 2013 are not deposited within one month then tenants-petitioners shall be liable to pay damages at the rate of Rs.2000/- per month since after one month till the date of actual vacation. 8. Similarly, if after filing the aforesaid undertaking and depositing Rs.9000/- and the aforesaid past rent the house in dispute is not vacated on the expiry of nine months then damages for use and occupation shall be payable at the rate of Rs.2000/- per month since after nine months till actual vacation. 9. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and initiate execution proceedings under Section 23 of the Act.