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2016 DIGILAW 1340 (ALL)

Guchhan v. Jiya Ullah Khan

2016-04-11

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard Sri Arvind Srivastava, learned counsel for the petitioners and Sri Kumar Ajit, learned counsel for the respondents. 2. The release application has been filed with a categorical assertion that the shop in question is needed by the landlord who had retired on 31.1.2011. 3. In paragraph 4 of the release application, it is specifically stated by the landlord that he has two sons and still has the liability of his younger son who is studying in B.Com. 4. So far as another son is concerned, it is stated that he is running a Gym in one of the portion of the house in question. Only access to the Gym is the shop lying at one side of the disputed shop in question which is being used as the passage to the Gym being run by his son. 5. In paragraph 5 of the Written Statement, the tenant denied the assertion of the landlord that the shop at the Southern side of the disputed shop is being used as a passage to the Gym. He states that the said shop is vacant and can be used by the landlord for satisfying his need. 6. It appears that before the Prescribed Authority, this is the only point pressed by the tenant to contest the need of the landlord. The Prescribed Authority after consideration of the pleadings came to the conclusion that the ground of challenge to the need of the landlord is without any substance. The tenant has not been able to dispute that the only access to the Gym being run by the son of the landlord is the shop existing at the southern side of the shop in question. The same view has been expressed by the Appellate Court. 7. Challenging this finding, submission of learned counsel for the petitioners is that both the Courts below have erred in coming to the conclusion that the tenant did not deny the existence of passage from the shop which lies at the southern side of the disputed premises. 8. This submission of the learned counsel for the petitioners is found misconceived looking to the averments of the tenant in paragraph 5 of the Written Statement. 8. This submission of the learned counsel for the petitioners is found misconceived looking to the averments of the tenant in paragraph 5 of the Written Statement. It is apparent that no other alternative passage has been suggested by the tenant which could be or is being used as a passage to the Gym, admittedly being run by the son of the landlord in the premises in question. 9. No other point has been pressed. 10. In view of the above noted reason, no interference is required in the concurrent finding of fact recorded by both the Courts below on the basis of relevant and admissible evidence on record. 11. Lastly, learned counsel for the petitioners submits that the petitioners may be given a reasonable time to vacate the shop in question so that they may make alternative arrangement. 12. To this submission, learned counsel for the respondents has no objection. 13. The present writ petition is, therefore, dismissed with the directions as follows: - "(i) The petitioner shall file his undertaking within a period of three weeks to vacate the premises in question on or before 15.4.2017. (ii) The petitioner shall continue to pay the regular rent. (iii) In case of any default in the above noted conditions, the protection granted herein above shall automatically stand vacated and the order passed by the Courts below shall become executable forthwith."