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2015 DIGILAW 3856 (ALL)

Mohd. Ibrahim v. Abdul Aziz

2015-12-07

SUNITA AGARWAL

body2015
JUDGMENT Sunita Agarwal, J. – Vakalatnama filed today by Sri Virendra Kumar on behalf of the petitioner is taken on record. 2. By means of the present writ petition, the petitioner is challenging the findings of fact recorded by both the Courts below on the bona fide need of the landlord and comparative hardship of the parties. 3. Learned counsel for the petitioner is not challenging the findings on bona fide need of the landlord rather the assertion is that an alternative accommodation was offered by the landlord during the pendency of the release application in an affidavit filed on 4.7.2013 before the Prescribed Authority. This offer was accepted by the tenant before the lower appellate court in his reply affidavit dated 5.10.2015 but the appellate court below had illegally recorded that the shop no. 483, Mohalla Khatriwara Sikandarabad, Bulandshahr offered to the petitioner is being used as a godown by the applicant landlord. As such it cannot be made available to the petitioner tenant. 4. A perusal of paragraph 4' of the affidavit dated 4.7.2013 indicates that the municipal entry of existence of shop in House No. 483, Mohalla Khatriwara, Bulandshahr was denied by the landlord. The specific assertion is that the said premise is a residential house which became dilapidated. After necessary repairs, the place suggested is being used as a godown by him. However, simultaneously it is averred that in case it could be used as a shop, the applicant would have offered it on rent. It was also stated in the same paragraph by the landlord that the opposite party nos. 1 and 2 were not doing business in the shop in question. There was no reply to this affidavit for a period of two years and only on 5.10.2015, the tenant stated that he was ready to shift in the shop in Premises No. 483, Mohall Khatriwara, Bulandshahr. 5. The appellate Court recorded that this affidavit of the tenant was disputed by the landlord. Further in view of his categorical assertion that the alleged shop was being as a godown it cannot be offered to the tenant. 6. Indisputably the petitioner tenant has not been able to dispute that the shop no. 483, Mohalla Khatriwara, Bulandshahr is being used as a godown by the respondent landlord. 7. Further in view of his categorical assertion that the alleged shop was being as a godown it cannot be offered to the tenant. 6. Indisputably the petitioner tenant has not been able to dispute that the shop no. 483, Mohalla Khatriwara, Bulandshahr is being used as a godown by the respondent landlord. 7. In view thereof, this Court does not find any justification to interfere in the findings recorded by the lower appellate court in paragraph 15' of the judgment and order dated 19.10.2015. 8. No other point has been argued by the learned counsel for the petitioner. 9. Lastly learned counsel for the petitioner submits that the petitioner may be given a reasonable time to vacate the shop in question so that he may shift to other place. 10. Learned for the respondent though objected to the prayer made by the petitioner, however, in view of the fact that disputed accommodation is a non-residential accommodation, it is provided that: - (i) The petitioner shall file an undertaking before the Court below within three weeks that he would vacate the shop in question on or before 10th December, 2016. (ii) In case the petitioner fails to furnish the undertaking or vacate the shop in question within the time given above, appropriate proceedings for his eviction may be initiated against the petitioner. 11. The writ petition is dismissed. Petition dismissed.