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2015 DIGILAW 218 (UTT)

MADAN LAL GUPTA v. SURENDRA K. SOOD

2015-04-17

SUDHANSHU DHULIA

body2015
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. This is a tenant’s writ petition. The release application of the landlord/respondent no.1 was filed under Section 21(1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (from herein after referred to as the “Act No. XIII of 1972”) on 15.10.2001 before the Prescribed Authority/Civil Judge (Senior Division), Dehradun. In the said application, the landlord/respondent respondent no.1 had set up need for himself stating that he is retired from the post of Lieutenant Colonel from the Indian Army and he has to set up business for himself. He further stated that his son is also unemployed. In short, he set up the bona fide need for himself as well as for his son. This release application was dismissed by the Prescribed Authority on the grounds that the petitioner though retired from Indian Army on 31.07.2000 but has got reemployed for two years and since he is presently reemployed, thus, his bona fide need cannot be considered. As regarding the comparative hardship, the Prescribed Authority gave a finding that in case the shop is released in favour of the landlord, the tenant will have to face more hardship than the landlord. In short, the application of the landlord was rejected. 2. The landlord/respondent respondent no.1 preferred an appeal under Section 22 of the Act No. XIII of 1972, which has been allowed by the lower appellate court vide order dated 28.02.2011. By the time the matter came up for hearing before the lower appellate court, period of reemployment of the landlord was over, therefore, his bona fide need as well as bona fide need for his son was established before the lower appellate court. The lower appellate court also gave a finding on the comparative hardship in favour of the landlord stating that the tenant has two sons who are employed elsewhere and there is an adjoining shop which was in the name of his father, which is effectively being run and the fact of adjoining shop cannot be denied. Aggrieved, the tenant filed the present writ petition. 3. The learned senior counsel for the petitioner Mr. B.P. Nautiyal, at this stage, has raised an entirely new plea, a plea which was admittedly never raised by him either before the Prescribed Authority or before the lower appellate court. Aggrieved, the tenant filed the present writ petition. 3. The learned senior counsel for the petitioner Mr. B.P. Nautiyal, at this stage, has raised an entirely new plea, a plea which was admittedly never raised by him either before the Prescribed Authority or before the lower appellate court. This new plea is that the alleged landlord is not in fact the landlord but he himself is a tenant in the property. The case of the petitioner/tenant is that the owner of the property is Guru Ram Rai Darbar Sahab and the respondent Lt. Col S.K. Sood himself is the tenant of Mahant Guru Ram Rai Darbar. In short, the petitioner has denied that the respondent no.1 is his landlord. 4. In view thereof, the short question before this court is whether this Court can allow the petitioner/tenant to raise such plea at this stage. 5. An objection has been raised to this plea by the learned counsel for the respondent/landlord Mr. Piyush Garg, who states that this plea is barred by Section 116 of the Indian Evidence Act, which reads as under:- 116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.” 6. Interestingly, when the release application was filed by the landlord, the tenant could have raised this plea at the first instance, in his Written Statement stating that he is not the landlord of the property. He did not do that. Infact in so many expressive words he accepted that the applicant/respondent no.1 is his landlord and he is paying rent of Rs.50.00 (Rupees Fifty only) per month to him. Infact in paragraph 17 of the affidavit (Annexure No.4 to the writ petition), if translated in English, the tenant had clearly stated that “the assertion of the landlord that the respondent/tenant has denied the tenancy of the shop in question is misleading. Infact in paragraph 17 of the affidavit (Annexure No.4 to the writ petition), if translated in English, the tenant had clearly stated that “the assertion of the landlord that the respondent/tenant has denied the tenancy of the shop in question is misleading. The respondent has sent the rent of the shop in dispute by draft and money order to the applicant which has been refused to accept by the landlord, as has been shown in the written statement and has also been shown in this affidavit as well. Applicant is his landlord and he continues to give rent to him.” 7. After a categorical finding of the Prescribed Authority has come wherein the Prescribed Authority though had rejected the application of the landlord but had given a finding that the landlord/respondent has bonafide need of the property, the fact remains that even at the appellate stage itself the tenant did not raise this new plea. In all his pleadings, he has accepted respondents as his landlord. His arguments for opposing the release application are that the landlord has neither a bonafide need nor comparative hardship is in his favour and infact the comparative hardship is in favour of the tenant. Moreover at this stage when the petition itself was filed in October, 2011, the writ petitioner has filed later a supplementary affidavit wherein he has annexed a notice given by a lawyer through his client i.e. Guru Ram Rai to the respondent stating that the respondent is his tenant. This application or the evidence cannot be read as evidence at this stage as it was not the record before the courts below. This is evidently an evidence which has been manufactured in order to raise the entirely new plea at the stage of the writ petition. Considering the consistent plea and admission of the tenant before the courts below, this Court is not inclined to grant this plea to the petitioner/tenant, therefore, as far as the plea that the respondents, particularly, respondent no.1 is not his landlord is concerned, the same is hereby rejected. 8. Under section 21 (1) (a) of the Act No.XIII of 1972, the premises can only be released in favour of the landlord if the Prescribed Authority comes to the conclusion that the landlord has established bonafide need and thereafter comparative hardship has to be seen. 8. Under section 21 (1) (a) of the Act No.XIII of 1972, the premises can only be released in favour of the landlord if the Prescribed Authority comes to the conclusion that the landlord has established bonafide need and thereafter comparative hardship has to be seen. What constitutes the bonafide need and what constitutes the comparative hardship is something which has a settled judicial meaning. Undoubtedly these have to be appreciated on the basis of facts of each case. The fact that the landlord is a retired person who wants to make good use of his time and engage himself in a business so that he can earn some extra money and that he has an unemployed son and a young daughter who is to be married are always his bona fide needs for release of the premises. Therefore, no fault can be found to the order of the lower appellate court wherein the bona fide need of the landlord has been established. 9. As far as the plea of comparative hardship is concerned, it is again in favour of the landlord, inasmuch as, it has come on record that adjacent to the shop where the present tenant resides, he has also a shop in his father’s name who has now passed away and therefore at least 50% rights would devolve on him. Therefore, on comparative hardships as well the claim of landlord is at better footing. 10. At this stage, the learned senior counsel for the petitioner Mr. B.P. Nautiyal has asserted that after the appeal of the landlord was allowed, he filed a review application wherein he stated that after the decision of the lower appellate court the landlord shifted to Delhi where he purchased a residential accommodation and two shops, thereby trying to build up a case that there is no bona fide need at all. However, this plea was not accepted by the lower appellate court and in view of this Court it was rightly rejected by the lower appellate court. This is for the reason that the Hon’ble Apex Court in the case of Gaya Prasad Vs. Pradeep Shrivastava, AIR 2001 SC 803 (1) it has been held that all subsequent developments should not be taken into account for establishing bonafide need, as then these would be no end to litigation. (3). Appellant is the tenant of a shop building situate at Khalsa Gali, Agra. Pradeep Shrivastava, AIR 2001 SC 803 (1) it has been held that all subsequent developments should not be taken into account for establishing bonafide need, as then these would be no end to litigation. (3). Appellant is the tenant of a shop building situate at Khalsa Gali, Agra. In 1978, the respondent-landlord filed an application under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short ‘the U.P. Act’) on a twin need. One is that his son who passed his medical examination wanted to carry on medical practice and this building was needed for housing his clinic. The other is, the landlord himself had just retired from Railway service and he too did not want to waste his time, talent and energy and hence he wanted to start a radio repairing which he thought could be performed by using a portion of the building. The first forum, called Prescribed Authority, where the application was filed, found the claim bonafide and ordered eviction on 25.03.1982. It was further found by the said authority that the tenant has alternative accommodation in the same city for doing his business. (6) The appellant who lost at all levels and yet succeeded during all these years by keeping the order of eviction at bay, lately discovered that the landlord’s son, for whom the eviction was sought, joined the Provincial Medical Service after 12 years of the institution of the lis. On that premise appellant ventured to move the same High Court once again, and this time for a review of the order. However, the review petition was dismissed by the High Court as per its order which is also impugned now. (10) We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.” 10. In view thereof, the writ petition has no merit. It is hereby dismissed. No order as to costs. 11. At this stage learned counsel for the petitioner says that in case he has to vacate the shop in question immediately, he will be facing a lot of hardships. In view of this Court, therefore, six months time can be given to the tenant/petitioner to vacate the premises, which is also acceptable to the landlord, subject to the petitioner giving an undertaking before the Prescribed Authority. The petitioner, therefore, should vacate the premises in question within six months i.e. on or before 17th October, 2015, provided he gives a written undertaking to this effect before the Prescribed Authority within 15 days from the date of receipt of certified copy of this order.