Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2048 (ALL)

Rakesh Kumar v. Pramod Kumar Gupta

2014-07-11

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. – Heard Sri Alok Tiwari, learned counsel for the petitioner and Sri Rajesh Gupta, who appears for the respondent. 2. Petitioner is a tenant of a shop of which respondent is a landlord. The landlord applied for its release under Section 21(1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as the Act) for the bona fide need of his two sons Vimal Gupta and Sanjay Gupta. The release application has been allowed by the prescribed authority and the judgment and order has been affirmed by the appellate court. 3. Aggrieved by the judgments and orders of the court below allowing the release application, tenant has preferred this writ petition. 4. Learned counsel for the petitioner has raised the following three points. First, the need of the landlord is not bona fide and the finding in this regard is perverse. Secondly, the courts below have not considered for the part release of the shop as provided under Rule 16(d) of the Rules framed under the Act. Lastly, the appellate court has affirmed the findings of the prescribed authority without application of mind without recording reasons. 5. The landlord applied for the release of the shop for settling his two sons Vimal Gupta and Sanjay Gupta in the business of sale and purchase of Mobile phones. The aforesaid sons of the landlord are aged about 27 years and 25 years respectively. There is no dispute about their age or that they are educated enough and such are entitle to do separate business. 6. The only argument advanced in this regard is that one of the sons Sanjay Gupta has married outside the caste and his father has turned him out of the house and therefore, his need is not to be considered any longer. 7. It may be true that one of the sons of the landlord has married a girl of a different caste but there is no evidence on record that he has been disowned by the landlord. He continues to be the family member of the landlord who is obliged in law to see him settled. His marriage is not likely to affect his need. 8. He continues to be the family member of the landlord who is obliged in law to see him settled. His marriage is not likely to affect his need. 8. Moreover, the need established by the landlord was for the two sons and there is nothing on record to establish that the need of the other son Vimal Gupta is not genuine or has ceased to exist. 9. In view of the aforesaid facts and circumstances, the prescribed authority has not committed any error in holding the need of the landlord for the shop in dispute to be genuine and bona fide. The aforesaid finding is in no way perverse. 10. Learned counsel for the petitioner himself submits that the size of the shop in dispute is 6 ft x 13 ft. 11. A shop of above size if divided it cannot be utilized by anyone. On division it will only have a frontage of about three feet and will make it more of a gallery which may not be suitable for business of either of the parties. 12. Moreover, Rule 16(d) of the Rules framed under the Act is applicable where the release is in-connection with the residential accommodation. 13. Learned counsel for the petitioner has relied upon three decisions of this court Pratap Narain Tandon Vs. Adbul Mukatadir 2005 (59) ALR 12 . Swaraj Kumar Vs. Arvind Kumar 2005 (60) ALR 359 and Smt. Saroj Mishra and others Vs. Smt. Chandrakanti Sinha and others 2009 (74) ALR 273 . wherein in-connection with commercial accommodation the court had directed for considering the part release. 14. The effect of the aforesaid judgments may be that the courts are not precluded from considering the part release of the accommodation even if it happens to be a commercial one but it does not mean that in each and every case, the court has to record finding with regard to part release even though no case to that effect has been set up and the accommodation is of the size which is beyond division. 15. In view of the above, I find no substance in the second submission of the counsel for the petitioner. 16. 15. In view of the above, I find no substance in the second submission of the counsel for the petitioner. 16. As far as the submission that the appellate has not applied its mind in affirming the finding recorded by the trial court counsel for the petitioner has placed reliance upon a decision of the Supreme Court in the case of Chairman Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and others 2009 (123) FLR 616 (SC). 17. In the said case a disciplinary action was drawn against a bank employee and a punishment of? reduction of salary was imposed upon him. The appellate authority affirmed the punishment but without giving reasons. The court held that the appellate order is liable to be set aside as it is unsupported by reasons. 18. The aforesaid decision is an authority with regard to the service law.? It is well settled that the appellate court in civil matters while affirming the finding of the court below need not dwell with each and every aspect of the matter in detail and record fresh reasons. It is required to record reasons only if it disagrees with the finding of the court below. 19. In view of the aforesaid facts and circumstnaces, I find no merit in the writ petition so as to entitle any interference in exercise of writ jurisdiction. 20. In the end learned counsel for the petitioner requests for one year to vacate the shop as the petitioner is a handicap person. On the request for the counsel for the petitioner, nine months time is allowed to the petitioner to vacate the shop in dispute provided he gives undertaking on affidavit by 31st July, 2014 before the prescribed authority? that he will vacate and handover peaceful vacant possession of the shop to the landlord within the aforesaid time and clears all the dues and pays damages for the use and occupation of the shop w.e.f. 1st July, 2014 @ Rs.500/- per month by the 7th of each succeeding month till the vacation of the shop. The writ petition is dismissed.