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2015 DIGILAW 4015 (ALL)

Vinod Kumar v. Azmatullah

2015-12-16

SUNITA AGARWAL

body2015
JUDGMENT Sunita Agarwal, J. – Heard learned counsel for the parties. 2. The concurrent findings recorded by both the Courts below on bona fide need and comparative hardship in the release proceedings filed under Section 21(1)(a) are under challenge in the present writ petition. 3. The ground of challenge is that the landlord is in occupation of two houses namely House No.88 and House No.88A Faithfulganj, Kanpur Nagar in the Cantonment Area. He has ample accommodation for residence of his family and hence the need set up in the release application is illusory. 4. It is, further, stated that the landlord has not come up with the clean hands as he had concealed the fact that he was in possession of House No.88, Faithfulganj, Kanpur Nagar. On this point, the Prescribed Authority has recorded the finding that the petitioner had raised this objection during the course of argument that the landlord was in possession of two houses namely House No.88A and House No.88, Faithfulganj, Kanpur Nagar but he has not been able to establish from the records. Rather in the affidavits filed by the tenant before the Prescribed Authority dated 30.01.2014, it is stated that the landlord is owner of house No.88 Faithfulganj, Kanpur Nagar rather than House No.88A and this fact is recorded in the voter list of the year 2007. This averment in paragraph 12 of the affidavit filed on 30.01.2014, appended as Annexure No.9 to the writ petition, could not be disputed by the learned counsel for the petitioner. 5. As per the admission of the tenant that the landlord possesses only one house. Whether it is House No.88 or House No.88A would be of no relevance in view of the fact that the extent of available accommodation in the house in which landlord is residing is not disputed. The petitioner though stated that the landlord had not disclosed the correct details of the residential accommodation in his possession but has also not been able to establish that this house is solely owned by the petitioner. Mere assertion in the pleadings or the affidavit, which has been categorically rebutted by the landlord, are not sufficient to accept the pleadings of the tenant. 6. Mere assertion in the pleadings or the affidavit, which has been categorically rebutted by the landlord, are not sufficient to accept the pleadings of the tenant. 6. In a feeble submission, learned counsel for the petitioner states that the wife of the petitioner had purchased the house in question by way of a registered agreement to sell in the year 2001 and the petitioner being the owner of the house in question, the release could have been proceeded against him at the instance of the respondent. A suit for specific performance of the agreement has been filed in the year 2014. In view of the pendency of the civil suit, release application could not have been allowed. 7. Admittedly, the house was purchased in the year 2006 by the respondent-landlord and the release application was filed in the year 2010. In paragraph 2 of the written statement, the petitioner had admitted ownership of the respondent-applicant. This plea raised by the petitioner herein was sought to be added at the stage of appeal by moving an Impleadment Application filed by the wife of the petitioner. The Impleadment Application was rejected by the order dated 03.02.2015 and the writ petition challenging the said order was also dismissed on 27.04.2015. The pendency of the suit for specific performance which was filed in the year 2003 in view of the pleadings on record is of no consequence. The relationship of landlord and tenant is not denied as the fact of tendering rent to the respondents is admitted. 8. No other point has been pressed. 9. No interference is required in the concurrent findings recorded by both the Courts below on the basis of evidence on record. 10. The writ petition is devoid of merit and hence dismissed. 11. Lastly, learned counsel for the petitioner submits that the petitioner may be given a reasonable time to vacate the house in question so that he may settle his belongings. To this submission learned counsel for the respondent has no objection. 12. It is, therefore, directed that the petitioner shall file an undertaking within a period of three weeks before the Prescribed Authority that he will vacate the house in question on or before 01.07.2016. In case the petitioner fails to file the undertaking or vacate the house in question within the time given above, proceedings for his eviction may be initiated. Petition dismissed.