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2016 DIGILAW 1568 (ALL)

Abdul Kadir v. Samshad Ali

2016-04-26

DEVENDRA KUMAR UPADHYAYA

body2016
JUDGMENT Devendra Kumar Upadhyaya,J. Heard Shri Deepanshu Dass, learned counsel for the petitioner and Shri Yogesh Kesharwani, who has put in his appearance on behalf of opposite party, who had earlier lodged caveat. These proceedings under Article 227 of the Constitution of India have been instituted by the petitioner-tenant assailing the validity of the judgment and order dated 16.12.2015, passed by the prescribed authority, whereby the application moved by the opposite party-landlord under Section 21(1)(a) of U.P. Act No.13 of 1972 (hereinafter referred to as 'the Act') has been allowed. 2. The petitioner also challenges the order dated 27.02.2016 passed by the Additional District Judge, Lucknow whereby the appeal preferred by the petitioner under Section 22 of the said Act against the order dated 16.12.2015 has been dismissed. 3. The opposite party appears to have purchased the property through a registered sale-deed on 16.12.1981. The premises in question is a shop situate in House No.108/394, Dr. Motilal Bose Road, Machhali Mohal, Police Station-Kaisar Bagh, Lucknow. The opposite party preferred the application under Section 21 (1)(a) of the Act with the prayer to release the tenanted shop and direct the petitioner to hand over vacant possession thereof to him on the ground that he is doing business of sale and purchase of old (secondhand) electronics items, namely, television, washing machine and refrigerator and does repair work in the shop situated in the same building. It was also averred by the opposite party in the said application that his son, Sartaj Ali is unemployed and he does not have any shop in Lucknow from where he can do his business. The opposite party also stated in the application that he has a large family comprising of 12 members and further that his son though has good experience of work of sale and purchase of hardware goods but in absence of any space available for the said business, the opposite party needs the shop under the tenancy of the petitioner for his bona fide needs. It was further stated in the said application that the petitioner, in fact, is a government servant and he does not do any business in the shop in question; rather a tailoring shop is being run by his wife and considering all these facts, it was averred by the opposite party in the application moved under Section 21(1)(a) of the Act that on consideration of comparative hardship also the shop in question is liable to be released in his favour. 4. The said application was contested by the petitioner by filing a written statement wherein, inter alia, it was stated by the petitioner that in September, 2004, the petitioner entered into an agreement/compromise with the opposite party wherein it was agreed that the petitioner shall retain the shop as a tenant on a monthly rent of Rs. 300/- for a period of five years and he shall again be retaining the shop in question on an enhanced rent of Rs. 350/- per month for a further period of five years. The said compromise, it has been averred by the learned counsel for the petitioner, was entered into between the parties after the suit filed by the opposite party for eviction, arrears of rent and damages for use and occupation of the premises in question was dismissed in the year 2003. It has, thus, been submitted that the period of the compromise during which the petitioner was entitled to retain the shop ended only in September, 2014, as such during currency of the compromise, no application under Section 21(1)(a) of the Act could either have been filed or entertained as the said application was moved in the month of February, 2014 i.e. before expiry of the period of ten years as stipulated in the compromise. He has further submitted that while moving the application under Section 21(1)(a) of the Act, the opposite party did not disclose the fact concerning the compromise and also the fact hat during pendency of the said proceedings, the opposite party, in fact, had broken the dividing wall between two shops to establish that he is doing business and he is in possession of only two shops whereas the fact is that opposite party has all along been in possession of three shops and by breaking the wall between two shops, he attempted to establish that he is in possession of two shops. 5. 5. Shri Deepanshu Dass, learned counsel for the petitioner, has vehemently submitted that the aforesaid facts, firstly not disclosing the factum of compromise and secondly breaking the common wall between two shops to establish his case for bona fide need does not entitle the opposite party to seek any relief in the proceedings under Section 21(1)(a) of the Act for the reason that the said provision envisages that the prescribed authority will consider the bona fide need and comparative hardships of the landlord and the tenant on equitable considerations. His submission is that since the opposite party did not approach the prescribed authority with clean hands, as such he is not entitled to seek any equitable relief from the prescribed authority. 6. Per contra, Shri Yogesh Kesharwani, learned counsel representing the opposite party, has opposed all the pleas taken by the learned counsel for the petitioner and has submitted that on a consideration of entire facts and circumstances and also the material and evidence available on record, the prescribed authority has given a clear finding that the shop in question is needed by the petitioner and needs to be released for bona fide need of the petitioner which has rightly been inferred by the prescribed authority on the ground that the son of the opposite party needs the said shop to set up the business of hardware. His further submission is that in view of the entire facts and circumstances of the case, the judgment passed by the courts below do not call for any interference by this Court. 7. Having considered the submissions made by the learned counsel appearing for the respective parties and having gone through the record, I am of the view that the judgment and order passed by the learned courts below are not liable to be interfered with by this Court. 8. Submission of learned counsel for the petitioner that opposite party was not entitled to seek any equitable relief for the reason that the application moved under Section 21(1)(a) of the Act he did not disclose the factum of compromise, in my considered opinion, is of no avail to the petitioner for two reasons. 8. Submission of learned counsel for the petitioner that opposite party was not entitled to seek any equitable relief for the reason that the application moved under Section 21(1)(a) of the Act he did not disclose the factum of compromise, in my considered opinion, is of no avail to the petitioner for two reasons. Firstly, when the application was filed, the petitioner was given an opportunity to controvert the facts narrated in the application by filing written statement, which opportunity the petitioner did avail while filing the written statement and secondly even presuming that the application was moved during the currency of period of ten years of the compromise, the application by the prescribed has been allowed after expiry of the said period. 9. I may further point out that the circumstances prevailing in September, 2004 might have necessitated the compromise, however, that in itself would not, in my considered opinion, dilute the bona fide needs of the shop in question for use of son of opposite party, who intends to do a hardware business. 10. As regards the submissions made by the learned counsel for the petitioner that during the pendency of the proceedings the common wall between two shops was dismantled by the opposite party, it is to be seen that the inference regarding bona fide need and comparative hardship is to be considered taking into account the overall facts and circumstances in a given case. Even if it is presumed that common wall between two shops was broken, that will not increase the total area which could be said to be available for the use by the opposite party. The learned trial court has given a categorical finding that the opposite party was able to establish a case for bona fide need and the consideration regarding comparative hardship also weighs in favour of the opposite party. 11. The findings recorded by the learned prescribed authority have been affirmed by the learned appellate court below and the petitioner has not been able to establish that the said findings are perverse so as to call for any interference by this Court in this petition. 12. Accordingly, the petition is hereby dismissed. 13. 11. The findings recorded by the learned prescribed authority have been affirmed by the learned appellate court below and the petitioner has not been able to establish that the said findings are perverse so as to call for any interference by this Court in this petition. 12. Accordingly, the petition is hereby dismissed. 13. Learned counsel for the petitioner, at this juncture, has submitted that the petitioner is to retire within two years from government service and therefore, he may be given sometime so that he can make arrangements for an alternate space to establish tailoring business of his family. 14. Accordingly, looking into the aforesaid prayer, which is not being opposed by Shri Kesharwani, the petitioner is permitted to retain the shop in question for a further period of nine months from today. However, the petitioner shall pay the entire rent and monthly rent regularly as and when the same accrues. 15. It is further directed that the petitioner after vacating the shop in question, shall hand over the vacant and peaceful possession thereof to the opposite party on or before 30.01.2017. 16. Any disobedience or non-compliance of this order will render the petitioner liable for contempt of this Court. Costs made easy.