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2015 DIGILAW 1354 (ALL)

Suresh Chandra Jain v. Sri Krishna Verma

2015-05-22

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. The respondent/landlord is the owner of a building in the Bazar of Sarai Sheikh, City and District - Etawah. The petitioner is the tenant of a Zeena Shop (Step Shop) since 1976 on a rent of Rs. 22 per month. The shop has a small space of 3 x 3 feet having only stair space opening into a narrow lane 5 feet wide which is referred to as 'Gali Sabzi Mandi'. The respondent/landlord filed a release application 21(1)(a) under Act No. XIII of 1972 being P.A. Case No. 6 of 2002 against the petitioner setting up a bona fide need for business of his son in the portion of the building (kotha) for which he needed the shop in question for opening a door on the northern wall of the (kotha) for access. The petitioner contested by filing objection to the application stating that the release application was mala fide with ulterior motive to get the shop in dispute vacated, no purpose would be served by opening the door to enter the kotha as the shop is situated in a lane which is 5 feet wide and is only suitable for small scale business. The Prescribed Authority/Civil Judge (Senior Division) Etawah rejected the application on 18 February 2010. Aggrieved, the respondent filed an appeal under Section 22 of the Act being P.A. Appeal No. 4 of 2010, which was allowed and the shop in question was released in favour of the respondent/landlord. Aggrieved by the appellate order dated 3.5.2012 the petitioner has come up in writ jurisdiction. 2. The submission of the learned counsel for the petitioner is that the appellate Court has incorrectly considered the bona fide need and the comparative hardship, the need of the shop was illusory and the hardship more in favour of the petitioner/tenant as compared to the landlord. The need was for a portion of the kotha and not for the shop in question, the shop was sought to be released so that the respondent/landlord may have access to the kotha. 3. It was further contended that the application is wholly mala fide as the respondent/landlord had sold a portion of the building which was under the tenancy of one Ram Nath. The respondent/landlord was fully aware that the ingress and egress from the kotha was only through shop no. 3. It was further contended that the application is wholly mala fide as the respondent/landlord had sold a portion of the building which was under the tenancy of one Ram Nath. The respondent/landlord was fully aware that the ingress and egress from the kotha was only through shop no. 173, despite having knowledge of this fact, the respondent/landlord sold the remaining portion of shop no. 173 to Ram Nath without carving a passage for ingress and egress, therefore, the release was sought for the purposes of using the kotha for which the only passage left was the shop in dispute. 4. The appellate Court in detail discussed the plea of 'self created need' set up by the landlord, it has been noted in the impugned order that the landlord had filed a release application against his tenant Ram Nath but being unsuccessful in the litigation, the respondent decided to sell the shop no. 173, after more than 18 months of the sale, the present release application was filed for release of the shop so that the respondent may have access to the portion of the building which he intended to set up the business for his son. 5. The Court below noted that it was not being disputed by the petitioner/tenant that after the sale of shop No. 173 to Ram Nath, there was no other passage left except through the portion which is rented to the petitioner. It was the sole prerogative of the landlord to determine which portion of the building he desires for setting up a business of his son, the need of the landlord cannot be questioned by the tenant, neither can the tenant dictate the terms that the landlord should have acted in particular manner so as to suit the tenant or accommodate the tenant in the disputed premises. The landlord has every right to set up his son in business in the portion of the premises of his choice to which the shop in question was the only passage available for ingress and egress which was not disputed by the petitioner, accordingly, determined the bona fide need of the respondent/landlord. 6. The landlord has every right to set up his son in business in the portion of the premises of his choice to which the shop in question was the only passage available for ingress and egress which was not disputed by the petitioner, accordingly, determined the bona fide need of the respondent/landlord. 6. Regarding comparative hardship the only plea raised by the tenant was that he had no other space or shop for carrying his business, he is a handicapped and an aged person, therefore, would suffer greater hardship in the event of the property being released in favour of the landlord. Supplementary affidavit filed on behalf of the petitioner would indicate that the petitioner is approximately 63 years of age. 7. The appellate Court noted that the petitioner had not made any effort to find an alternate shop during the course of the litigation nor any assertion has been made to that effect. It was not disputed that the son of the landlord is not gainfully employed and, therefore, the landlord had a right to set up his son's business in the premises in question. 8. The submission of the learned counsel for the petitioner that the prescribed authority had rejected the bona fide need set up by the respondent/landlord for the reason that the landlord had sold a part of the shop to one of the tenant Ram Nath and by doing so did not provide passage for ingress and egress to the kotha, accordingly, the authority came to the conclusion that the intention of the landlord was not bonafide. The purpose of the sale was to make out a ground for release of the shop in dispute. The appellate Court on reappreciating the evidence came to the conclusion that the tenant cannot dictate the landlord as to how the landlord should use his property. The appellate Court noted that a prolonged litigation ensued between the respondent and Ram Nath, finally, the landlord settled the matter by selling the premises to the legal heirs of Ram Nath, upon selling of the shop no. 173. There was no access left to the kotha except through the passage which was being used as a shop by the petitioner. 173. There was no access left to the kotha except through the passage which was being used as a shop by the petitioner. The fact that the son of the landlord was to be set up in business was not disputed by the petitioner/tenant and it was also not disputed before the Court below and this Court that after sale of the portion of the property, kotha could be used for business only if it was made accessible through the shop in dispute. The plea of the petitioner that the bona fide need was set up for the kotha and not for the tenanted portion cannot be accepted, without the passage which is being used as a shop by the tenant is the only link to the kotha which was sought for the purpose of business. It is not open for the tenant to come up with the plea that the landlord should have taken care while selling a part of the premises to the former tenant by leaving same passage for ingress and egress. This plea of the petitioner/tenant is untenable because the petitioner cannot compel the landlord to act in a particular manner which suits or subserves the purpose of the petitioner/tenant. 9. This Court in Smt. Saraswati Devi (dead) through Lrs. Vs. Kali Charan Yadav and another1, held that need of the landlady for the release of accommodation for the purpose of getting her car parked, was genuine and bonafide. 10. In Panna Lal and others vs. Harendra Kumar Gupta and others2 this Court held that the right of the landlord to use his premises in the way he can use his amenities conveniently. In the facts of that case the main entrance of the house was only two feet three inches wide and adjacent to the shop under tenancy which was five feet wide. The need of the landlord for the shop was upheld for widening the passage to have access to his house which deprived the landlord from using household amenities like double bed, fridge and car etc. 11. The tenant has not made any effort for the last 13 years to search an alternate accommodation. Since the tenant has not made any bona fide effort to search a shop, the balance of hardship tilts against him as has been held in the case of B.C. Bhutada vs. G.R. Kundada3. 12. 11. The tenant has not made any effort for the last 13 years to search an alternate accommodation. Since the tenant has not made any bona fide effort to search a shop, the balance of hardship tilts against him as has been held in the case of B.C. Bhutada vs. G.R. Kundada3. 12. In do not find any illegality or infirmity in the impugned order. The writ petition is, accordingly, dismissed. 13. No order as to costs. 14. On the request of the learned counsel for the petitioner, it is provided that in case the petitioner gives an undertaking on oath before the Additional District Judge, Court No. 3, Etawah that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlords on or before 30 November 2015. The aforesaid undertaking on oath shall be given by the petitioner before the Court below within 10 days from the date of production of certified copy of this order and the petitioner shall deposit the monthly rent of the premises in question before the Court below, as per the current rent fixed and shall continue to deposit the same by 07th of the each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlord after due verification by the Court concerned. 15. It is made clear that in the event of default committed by the petitioner/tenant in any of the conditions, the order shall stand automatically vacated without reference to the Court.