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2015 DIGILAW 1346 (ALL)

Shashi Bhushan Anand @ Toni v. Ram Devi

2015-05-22

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. Heard Sri B.N. Agrawal, learned counsel for the petitioners and Sri Chaudhary Subhas Kumar, learned counsel for the respondents. 2. The first respondent/landlord through legal heirs applied for release of the house in dispute under Section 21(1)(a) of the U.P. Act No. 13 of 1972 which was registered as P.A. Case No. 13 of 2001 in the court of Civil Judge (Junior Division), Orai. The release application was allowed on 10.05.2006. The petitioner/tenant filed an appeal being Rent Appeal No. 3 of 2006 under Section 22 of the Act which was dismissed on 11.05.2007. Aggrieved, the petitioner applied for recall of the judgment and order on the ground that in absence of the counsel, the appeal could not have been decided on merit. The recall application was rejected on 22.01.2008. Aggrieved, the petitioner had approached this Court in writ jurisdiction by filing Writ Petition No. 21265 of 2008 which was allowed by order dated 05.08.2014. Pursuant thereof, the appellate court has decided and rejected the appeal by order dated 10.10.2014. The petitioner is assailing the order of release and the appellate court order. 3. The dispute relates to House No. 103 (new number 130) situated at Mohalla Chandra Nagar, Town Orai, District Jalaun, in which the petitioner/tenant has four rooms. An application was moved under Section 21(1)(a) of the Act for release the premises in dispute in favour of the respondent/landlord who setup her bonafide need alleging that there are 22 members in her family, out of which, 16 members are adult, the accommodation in possession is not sufficient. The house in dispute is in the tenancy of the petitioner/tenant for the past four decades and since then the family has enlarged, hence, the accommodation in her possession being not sufficient to meet the needs of the enlarged family. 4. The petitioner/tenant contested the release application alleging that there are 15 rooms on the ground floor, 8 rooms on the first floor and there is sufficient accommodation in possession of the landlord. The need of the landlord for additional accommodation is not bonafide, she shall suffer no greater hardship as compared to the petitioner. The prescribed authority and the appellate court considered and found the bonafide need of the landlord to be genuine. 5. The need of the landlord for additional accommodation is not bonafide, she shall suffer no greater hardship as compared to the petitioner. The prescribed authority and the appellate court considered and found the bonafide need of the landlord to be genuine. 5. The courts below while deciding the bonafide need of the landlord noted that the disputed house was given on rent about 32 years ago to Sri Krishna Lal Anand. When the disputed premises was given on rent, the three sons of the landlord were minor, now they have become major. The marriage of the sons have since been solemnized, at present there are 22 members in the family of the respondent-landlord including her husband and children of her three sons. All the members live jointly, there is shortage of accommodation to meet the requirement of the extended family, therefore, the respective family would need separate accommodation. 6. Learned counsel for the petitioner is not disputing the concurrent findings recorded by the courts below regarding the bonafide need and comparative hardship. Only submission advanced by learned counsel for the petitioner is that there are four vacant rooms beyond the gallery towards the north of the disputed house which according to the respondent/landlord is in a dilapidated condition, but according to the petitioners is livable, therefore, the petitioners are prepared to shift into the four rooms. Learned counsel for the petitioner would submit that this plea was raised before the appellate court on the matter being remanded but was not taken into consideration. 7. In rebuttal, it is contended by learned counsel for the respondents that this plea was never raised before the prescribed authority in the written statement or by way of an affidavit. It is for the first time, the issue was raised on the matter being remanded to the appellate court. 8. Be that as it may, the Amin Commissioner report would support the statement of the respondent/landlord that the family is a business family and the entire ground floor is being used as a godown, workshop, office and shop, accordingly, the area is not habitable for residential purpose, the family survives on business which is being carried for several decades on the ground floor. 9. 9. As regards, the contention of learned counsel for the petitioner that they are prepared to shift to the four rooms on the north of the house in question, the learned counsel appearing for the respondents has drawn the attention of Court to the Amin report dated 13.01.2014 in respect of the said portion of the property. The Amin Commissioner has recorded that the four rooms are not only in a dilapidated condition but are also not conducive for habitation, the entire ceiling is cracked and the structure is in a debris form. Commissioner report is not being disputed by learned counsel for the petitioner, therefore, the plea of the petitioner that they are prepared to shift to the structure which is not fit for habitation, cannot be accepted. Since the learned counsel for the petitioner is not disputing the findings recorded by the courts below regarding the bonafide need of the 22 members of the family who are residing in a small accommodation of two rooms and the entire ground floor is being used by the members of the family for business, in my opinion, the courts below have not committed any illegality or infirmity in determining the question of bonafide need and comparative hardship in favour of the land lord. The Courts recorded that no endeavour was made by the petitioners in finding a suitable accommodation during the pendency of the proceedings. 10. Considering the facts and circumstances of the case, I do not find any illegality or infirmity in the impugned orders. The concurrent finding of facts cannot be disturbed in writ jurisdiction. The petition being devoid of merit is accordingly dismissed. 11. However, it is provided that in case the petitioners give an undertaking on oath before the District Judge, Jalaun that they shall vacate the premise in question and hand over the possession of the same peacefully to the respondent-landlords on or before 30 November 2015, eviction of the petitioners be not done till then. 11. However, it is provided that in case the petitioners give an undertaking on oath before the District Judge, Jalaun that they shall vacate the premise in question and hand over the possession of the same peacefully to the respondent-landlords on or before 30 November 2015, eviction of the petitioners be not done till then. The aforesaid undertaking on oath shall be given by the petitioners before the court below within a period of ten days from today and the petitioners shall deposit the monthly rent of the premises in question before the District Judge, Jalaun, as per current rent fixed and shall continue to deposit the same by 07th of each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlords after due verification by the court concerned. In case of default, protection granted above to the petitioners shall automatically stand vacated.