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2013 DIGILAW 2802 (ALL)

Sushila Devi and another v. Durga Prasad Rawat and others

2013-11-14

KRISHNA MURARI

body2013
Krishna Murari, J. – These are two connected writ petitions filed by the petitioner-tenants. Writ petition No. 3800 of 2007 was filed challenging the order passed by the prescribed authority allowing the application of the respondent-landlords under section. 21 (i) (a) of the U.P. Act No. XIII of 1972 as well as appellate order. Writ petition was dismissed in default on 15.3 2013 After dismissal of the writ petition and vacation of the interim order, it appears that execution proceedings were initiated by the respondent-landlords wherein vide order dated 20.9.2013 ‘Parwana Dakhal’ for putting them in possession was issued. The tenant-petitioners again approached this Court by filing writ petition No. 56212 of 2013. Subsequently, a restoration was filed in Writ Petition No. 3800 of 2007. Learned Single Judge finding that the order issuing ‘Parwana Dakhal’ was an offshoot of the main petition wherein a restoration application was pending, thought it fit that this petition may be connected alongwith earlier petition and accordingly directed the office to place the matter before the Hon’ble Acting Chief Justice/Senior Judge for appropriate order. Hon’ble Acting Chief Justice by order dated 23.10.2013 nominated this Bench to hear the matter and that is how both the writ petitions have been placed before me. 2. Heard learned Counsel for the parties. 3. Cause shown for delay in filing the restoration application is sufficient and the same is condoned. 4. The reasons for non-appearance is also found to be sufficient. 5. The order dated 15.3.2013 is recalled. Writ petition No. 3800 of 2007 is restored to its original number and thereafter has been heard on merits. 6. Dispute relates to House No. 19/168, Patkapur, Kanpur Nagar, which was in the tenancy of one Mihi Lal, the husband of the petitioner No. 1 and father of the petitioner No. 2. On his death, the tenancy was inherited by the petitioners. The house in dispute was purchased by one Smt. Kusum Devi wife of the respondent No. 1 from the erstwhile owner vide registered sale-deed dated 23.10.2000. She moved an application dated 3.1.2003 under section 21 (i)(a) of the Act for release of the house in dispute on the allegation that her family consists of herself, her husband, three sons, one daughter, two daughter-in-laws and three grandchildren and they are living in a tenanted accommodation No. 24/131, Patkapur, Kanpur Nagar consisting of two rooms, one courtyard and store. It was further pleaded that the accommodation is not sufficient for her family and the landlord is pressing to vacate the same. It was also pleaded that first floor of accommodation purchased by her was in the tenancy of the petitioners and she was in possession of only one room which was insufficient. The proceedings were contested by the tenant-petitioners by filing written statement denying the allegation. The case set up was that the landlady has sufficient accommodation available with her and her one son namely, Shiva Kumar who is a representative mostly remains outside Kanpur in connection with his duties and other son Shashi Kant also resides outside Kanpur and he had no other accommodation available with him. 7. The Prescribed Authority after considering the evidence brought on record by the parties found that the need set up by the landlady was bona fide and genuine as she was living with her family in a tenanted accommodation, the question of comparative hardship was also found in favour of the respondent-landlady. The Prescribed Authority also found that since the tenant during pendency of the proceedings never made any effort to search any alternative accommodation for him, as such, the balance of comparative hardship stands tilted in favour of the respondent-landlady. On the basis of the said findings, the Prescribed Authority allowed the application and directed the tenant-petitioners to vacate the tenanted accommodation in their possession. The petitioners went up in appeal. The Appellate Court vide judgment and order dated 18.12.2006 confirmed the findings recorded by the prescribed authority and dismissed the appeal. 8. It has been contended by learned Counsel for the petitioners that the family of the tenant-petitioners consists of seven person and the family having no other alternative accommodation available with them, in case evicted, shall suffer greater hardship and the Courts below have committed grave illegality in not considering this aspect of the matter. It was pointed out that Smt. Kusum Devi, the erstwhile landlady having died during the pendency of the proceedings, the family of the landlords stands reduced by one member and they are already having one room in their possession in the premises in dispute and also the tenanted accommodation, which was sufficient to satisfy their need, as such, the findings of bona fide need and comparative hardship recorded by the two Courts below are perverse and vitiated. 9. 9. On the other hand, Sri C.M. Rai, learned Counsel for the respondent-landlords submits that findings on bona fide need and comparative hardship are finding of facts which are not liable to be interfered in writ jurisdiction and the writ petition is concluded by finding of facts recorded by the two fact finding Courts and liable to be dismissed. He further submits that once the landlords are living in a tenanted accommodation that in itself is sufficient to establish the bona fide need and hardship and the two Courts below rightly allowed the application for release. 10. I have considered the argument advanced by learned Counsel for the parties and perused the record. 11. It is undisputed that the respondent-landlady was living in a tenanted accommodation consisting of two rooms, one court-yard and store and one room was in her possession in the house in dispute. Her family at the time of filing of release application consisted herself and ten more members, out of which eight members were adults. There can be no manner of doubt that the tenanted accommodation consisting of two rooms and one room in the house in dispute, which is in her possession, cannot be said to be sufficient to accommodate two adult married sons, one unmarried major son, one unmarried major daughter alongwith three grandchildren apart from herself and her husband for a decent and comfortable living. Thus the two Courts below have rightly held that the need set up by the landlady was bona fide and genuine. 12. Apart from above, the argument that the landlady is living in a tenanted accommodation is in itself a very strong ground to establish bona fide need set up by her. In so far as the comparative hardship is concerned, the prescribed authority held that since the need of the landlady was bona fide and genuine and she was living in a tenanted accommodation, as such, would suffer greater hardship. Whereas the tenants since during the pendency of the proceedings never made any effort to search any accommodation, as such, also the comparative hardship stands tilted in favour of the landlady. The said findings have been affirmed by the Appellate Court. 13. Whereas the tenants since during the pendency of the proceedings never made any effort to search any accommodation, as such, also the comparative hardship stands tilted in favour of the landlady. The said findings have been affirmed by the Appellate Court. 13. It is no doubt correct that whenever a decree is passed against a tenant he shall always suffer hardship but the same by itself cannot constitute hardship of greater degree so as to refuse landlord a decree of eviction. The owner of a residential accommodation cannot be denied eviction and compelled to live poorly in a tenanted accommodation merely to enable the tenant to live comfortably on the ground that he shall suffer hardship. The degree of hardship, in such situation, would be much greater for the landlord. The issue of comparative hardship further stands tilted in favour of the landlords inasmuch as the petitioner-tenants during the pendency of the proceedings never made any effort to search any alternative accommodation for themselves. This finds support from the decision in the case of Fahimuddin v. XIth Additional District Judge, Meerut and another, 1995 (2) ARC 306 and Arvind Kumar v. IInd Additional District Judge, Etawah and others, 1997 (1) ALR 622. 14. It is well settled that findings on the two issues i.e., bona fide need and comparative hardship are finding 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. 15. Learned Counsel for the petitioner, during the course of argument, has failed to point out that the findings recorded by the Prescribed Authority and affirmed by appellate authority are vitiated for any of the aforementioned reasons. 16. On the contrary, a perusal of the judgments goes to show that they are well considered and based on proper appraisal of evidence brought on record. 17. In view of aforesaid facts and discussions, writ petition is concluded by finding of facts and devoid of any merit and accordingly stands dismissed. 18. In view of dismissal of this petition, subsequent writ petition No. 56212 of 2013 is rendered in-fructuous and the same also stands dismissed. 19. 17. In view of aforesaid facts and discussions, writ petition is concluded by finding of facts and devoid of any merit and accordingly stands dismissed. 18. In view of dismissal of this petition, subsequent writ petition No. 56212 of 2013 is rendered in-fructuous and the same also stands dismissed. 19. However, considering the facts and circumstances, tenant-petitioners are allowed six months’ time to vacate the premises in dispute provided they give an undertaking on an affidavit before the prescribed authority that they shall vacate and handover the vacant possession of the disputed premises peacefully to the landlord-respondents within six months from the date of receipt of the certified copy of this order and also deposit a sum of Rs. 6600 lump sum calculated at the rate of Rs. 1100 per month for use and occupation of the premises for six months with the prescribed authority within three weeks from the date of receipt of the certified copy of this order. The respondent-landlords shall be entitled to withdraw the amount so deposited. 20. In case the tenant-petitioners fail to comply with the aforesaid terms and conditions, the order granting time to vacate the premises shall loose its efficacy and the order of the prescribed authority shall be liable to be executed through process of Court. Petitions Dismissed. ____________