Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 3774 (ALL)

Buggan v. Ghanshyam Das

2015-12-02

SUNITA AGARWAL

body2015
JUDGMENT Sunita Agarwal, J. Heard Sri Manzarul Islam, learned counsel for the petitioners and Sri Nitin Yasharth, learned counsel for the respondents. 2. The release application has been filed with regard to the suit premises for commercial purposes. The challenge to the orders of release passed by the Courts below is on the ground that the premises cannot be released for commercial purpose as it was a purely residential accommodation. The landlord has admitted the fact that the tenant is occupying and using the accommodation in question for residential purposes. 3. Both the Courts below have recorded a finding that the tenant has failed to establish that the accommodation in question is a residential accommodation as it lacks basic amenities of Kitchen, latrine and bathroom. The accommodation in question is one room in the front portion of the house which is of mixed use both commercial as well as residential. The tenant is doing business of sale of bangles from the disputed accommodation. Merely because they have started living in the disputed accommodation which was initially let out for the business purpose, it cannot be said that the dominant use of the tenented accommodation is residential. 4. Reliance has been placed upon a Division Bench of this Court in Dr. Bashir Uddin vs. District Judge Bulandshahar and others 1978 ARC 62, to submit that the Courts below have erred in not considering the dominant purpose for which the disputed accommodation was being used. The mere absence of amenities of Kitchen, latrine and bathroom cannot be a factor to determine that the disputed accommodation is commercial. 5. Having heard learned counsel for the parties and perused the record. The case of the landlord in the release application is that the disputed accommodation was given on rent for commercial purpose by their father. Over the period of time, the tenant had started living in the same besides using it for the sale of bangles. Further the tenant owns a residential house namely House No. 438, Krishan Nagar, Kydganj, Allahabad and he had shifted therein keeping the accommodation in question under lock and key. The tenant though averred that the residential House No. 438 has been sold to one Smt. Archana Sahu, but he has not been able to establish this fact. No sale deed has been brought on record. The tenant though averred that the residential House No. 438 has been sold to one Smt. Archana Sahu, but he has not been able to establish this fact. No sale deed has been brought on record. Only reliance has been placed upon the extract of Municipal Assessment Record of Nagar Nigam, Allahabad which pertains to House No. 636-B/438, Krishan Nagar, Kydganj, Allahabad in the name of Smt. Archana Sahu. 6. The said entry is not relatable to House No. 438, Krishan Nagar, Kydganj, Allahabad and as such this contention of the tenant has been disbelieved. Further the tenant has not been able to dispute that the disputed accommodation was given on rent for commercial purpose and that it does not contain the basic amenities of kitchen, latrine and bathroom so as to describe it a residential accommodation. 7. Admittedly the house in question of which the disputed accommodation is a part, is of a mixed use. A portion of the house is being used for commercial purpose and in the remaining portion at the first floor, the applicants are residing. The disputed accommodation lies at the front portion on the ground floor. Thus the dominant use of the disputed accommodation cannot be said to be residential merely because the tenant had started using it for residential purpose for a certain period. Further the tenant has not been able to dispute the specific stand taken by the landlord that he owns a residential house. 8. The need set up by the landlord to establish his son in an independent business has been found genuine and pressing by the Courts below. There is no infirmity in the finding recorded by both the Courts below. 9. Lastly learned counsel for the petitioners submits that the petitioners may be given a reasonable time to vacate the disputed premises. 10. To this submission, learned counsel for the respondents has no objection. It is, therefore, provided that : (I) The petitioners shall file an undertaking before the Court below within a period of three weeks that they shall vacate the disputed premises on or before 1st June, 2016. (II) In case the petitioners fail to file such an undertaking or vacate the disputed accommodation within the time given above, appropriate proceedings for their eviction may be initiated. The writ petition is dismissed.