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2015 DIGILAW 3116 (ALL)

Ram Adhar Verma v. Rajesh Kumar Nathani

2015-10-01

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard Sri Rajesh Kumar Dubey, learned counsel for the petitioner and Sri H.P. Mishra, learned counsel for respondent no. 1. 2. The release application has been filed by respondent no. 1 Sri Rajesh Kumar Nathani on the ground that the shop in question is needed with the shop of another tenant who was impleaded as defendant no. 1. A compromise has been reached between defendant no. 1 and the applicant, which was accepted by the Court on 25.3.2009 and the release application against defendant no. 1 has been decided on the basis of said compromise. The vacant possession of the shop in the occupancy of defendant no. 1 was handed over to the applicant pursuant to the compromise. 3. The petitioner had contested the need of the applicant on the ground that the need set up by him is a mere desire. The applicant is residing in Hata, District Kushinagar and is already doing cloth business in the name of 'Ambe Vastra Bhandar' in his ancestral house. The need set up by the applicant that he wants to shift to Gorakhpur and start Jewellery business in the shop in question is not genuine. 4. The contention of the applicant that he is residing with his family in Gorakhpur in the house of one Shiv Kumar Tulasyan owing to a dispute between the applicant and his brother and has to travel to Hata Bazar for doing the cloth business has been denied. The applicant on the other hand had filed affidavit of Shiv Kumar Tulasyan to prove that he is tenant at the monthly rent of Rs. 1000/- in the residential house. 5. It was further stated that the measurement of the shop which has been vacated by defendant no. 1 Keshav Prasad is only "7 ft. X 11 ft.". The shop in which the defendant no. 2 is sitting tenant is "11 ft. X 11 ft.", if both the shops are vacated the applicant would merge them and would be able to open a Showroom for the Jewellery business. 6. The Prescribed Authority found that the shop which was vacated by defendant no. 1 Keshav Prasad is only "7 ft. X 11 ft." and is not sufficient to start the Jewellery business. Both the shops are adjacent to each other and lie in Sarafa Bazar which is the most appropriate place for the business. 6. The Prescribed Authority found that the shop which was vacated by defendant no. 1 Keshav Prasad is only "7 ft. X 11 ft." and is not sufficient to start the Jewellery business. Both the shops are adjacent to each other and lie in Sarafa Bazar which is the most appropriate place for the business. Moreover, the landlord is the best judge to decide as to where and in what manner he wants to do his business. 7. On comparative hardship, it was found by the Prescribed Authority that four shops are being run by the defendant and his family members in Gorakhpur city. The tenant has not been able to dispute this submission of the applicant made on affidavits and on the basis of evidences filed by him therein. 8. In the appeal by means of an application and the affidavit, amendment was sought disputing the ownership of the applicant to the shop in question. It was stated therein that Smt. Savitri Devi was the original owner of the premises in question and her only son Shiv Kumar Tulasyan has inherited it. These are entries in the municipal records in the name of Shiv Kumar Tulasyan who is brother-in-law of the applicant. The petitioner had tendered rent to the applicant believing wrong information given by the applicant about his ownership. Upon a dispute created by the applicant, later, he had deposited rent under Section 30 of the Rent Control Act. The applicant, therefore, cannot maintain the release application. 9. During the course of hearing of the appeal, on the question as to whether the petitioner can dispute the title of the applicant as owner or the relationship of landlord and tenant it was held that indisputably the petitioner had tendered rent to the applicant from the year 1996. A notice of demand of rent and eviction was sent through his Advocate by the applicant and the petitioner had started depositing rent under Section 30 of the U.P. Act No. 13 of 1972 in the name of the applicant. The basis of the amendment sought in the appeal is that the name of Shiv Kumar Tulasyan is entered in the municipal record, however, there is no documentary evidence on record to substantiate this plea. 10. Moreover, in view of the admission of the factum of tendering rent to the applicant, the landlord tenant relationship cannot be denied. 11. The basis of the amendment sought in the appeal is that the name of Shiv Kumar Tulasyan is entered in the municipal record, however, there is no documentary evidence on record to substantiate this plea. 10. Moreover, in view of the admission of the factum of tendering rent to the applicant, the landlord tenant relationship cannot be denied. 11. Challenging these findings, learned counsel for the petitioner vehemently submits that the question as to whether the applicant was owner of the shop in question incidentally fell for determination in the present proceeding. Earlier rent was being given to Smt. Savitri Devi. After her death, the name of Shiv Kumar Tulasyan has been entered in the Municipal assessment list as the only son of Smt. Savitri Devi and as such the appellate court has erred in law in deciding against the petitioner. 12. The submission is that the definition of "landlord" under Section 3(j) of the Rent Control Act speaks of only a person to whom the rent is "payable" and it does not include a person to whom the rent has actually been paid. As the applicant is not the owner of the property in question, the factum of payment of rent to him would be of no consequence. 13. Further submission is that one shop has already been vacated, which is adjacent to the shop in question. The landlord had no intention to do the Jewellery business otherwise he would have started the business in the shop already released in his favour. 14. Both the contentions of learned counsel for the petitioner are not acceptable for the reasons given hence forth. 15. So far as the submission that the ownership of the property in question would be relevant to decide the relationship of the landlord and tenant, it may be seen that admission of the petitioner is otherwise. The Appellate Court below has recorded that the tenant has not been able to establish from any cogent evidence that the shop in question is in the ownership of Shiv Kumar Tulasyan. Moreover, the factum of tendering rent to the applicant is admitted. The averments made by the tenant in the amendment application have categorically been denied by the applicant landlord by filing his own affidavit. 16. Moreover, the factum of tendering rent to the applicant is admitted. The averments made by the tenant in the amendment application have categorically been denied by the applicant landlord by filing his own affidavit. 16. The Appellate Court has rightly held that the dispute raised by the tenant regarding the title of the landlord is contrary to the admissions made by him in the affidavit filed earlier in the present proceeding. The title of the landlord has been disputed by the tenant at the stage of appeal with an ulterior motive to delay the proceedings. 17. Further on the bonafide need, it is recorded by both the courts below that the adjacent shop which was released by Keshav Prasad the then sitting tenant is only "7 ft. X 11 ft." which is not sufficient to do the Jewellery business. The shop in question is needed by the landlord for opening a showroom for the Jewellery business. Whether the landlord would shift to Gorakhpur or continue with the cloth business at Hata, is the sole choice of the landlord and the tenant cannot be a guide to him in this matter. 18. The findings recorded by both the Courts below are based upon the evidence on record. The judgments relied upon by the learned counsel for the petitioner are distinguishable in the facts and circumstances of the case. 19. No interference is record. 20. However, in view of the request made by the learned counsel for the petitioner that a reasonable time may be given to vacate the shop in question in order to settle his belongings, it is provided that: - (i) The petitioner shall file an undertaking within three weeks alongwith the certified copy of this order before the Court below that he would vacate the shop in question on or before 1st June, 2016. (ii) In case the petitioner fails to file the undertaking or vacate the shop in question within the time given above, appropriate proceedings for his eviction may be initiated in accordance with law. 21. The writ petition is dismissed.