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2016 DIGILAW 1716 (ALL)

Ram Kishan Swarnkar v. Nirmal Kumar Jain

2016-05-04

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – The supplementary affidavit filed today is taken on record. 2. Heard learned counsel for the parties and perused the record. 3. The findings on bona fide need and comparative hardship recorded by two Courts below are challenged on the ground that the landlord is a man of sufficient means, he possess several other accommodations, in which he can run his lawyer's chamber, moreover he is having his chamber in a joint family property which has now been devolved upon him through a will dated 17.07.1998. 4. The release application was initially filed with the assertion that the shop in question was needed for expansion of the stair case. The shop was released partly by the Prescribed Authority vide judgement and order dated 29.05.2007, an amendment application, thereafter, was filed before the Appellate Court for amending the need, thus pleading a new case. This amendment application was allowed and the matter was remanded to the Prescribed Authority to decide afresh. However, the order allowing amendment application was not challenged by the petitioner. 5. The trial Court proceeded and recorded fresh finding that the landlord needed the shop in question for establishing his Advocate's chamber. This finding was challenged in Appeal no. 20/2008 which was also allowed. Challenging the order in appeal, the landlord had approached this Court in writ petition, which was allowed on 19.09.2014 and the matter was remanded to the Appellate Court to decide a fresh. After remand, fresh findings have been arrived by the Appellate Court vide judgement and order dated 21.03.2016 which is under challenge in the present petition. 6. Learned counsel for the petitioner elaborating her submission states that the applicant/landlord was registered as an Advocate in the year 1988 by the U.P. Bar Council, Allahabad, according to him he is engaged in legal profession since thereafter. Admittedly he is running his chamber in a joint family accommodation which has now been devolved upon him. The release application was initially filed for the need of expansion of stair case and having lost before the trial Court, the landlord amended the release application setting up new need for establishment of Advocate chamber. This fact itself reflects that the need is not bona fide but is a mere desire of the landlord to evict the petitioner. 7. The release application was initially filed for the need of expansion of stair case and having lost before the trial Court, the landlord amended the release application setting up new need for establishment of Advocate chamber. This fact itself reflects that the need is not bona fide but is a mere desire of the landlord to evict the petitioner. 7. This apart, there are other vacant accommodations in possession of the landlord which could be used for the need set up in the release application. One shop in House no. 155/59-D is in vacant state and has been kept closed by the landlord. Photographs of this shop in closed state were brought before the Appellate Court by means of an affidavit filed in additional evidence on 24.02.2016. The Appellate Court has erred in concluding that the said shop was not available to the landlord. 8. On the other hand learned counsel for the respondent has invited attention of the Court to page no. 191 of the paper book which is the affidavit filed by the applicant/landlord in reply to the affidavit dated 24.02.2016 filed by the petitioner in additional evidence. With the support of this document it is urged by learned counsel for the respondent that the alleged shop is not available to him, it is not in his possession. The house in which the alleged shop exists is a joint family residential house which was devolved upon him jointly along with his brothers and sisters through a will executed by his mother. The alleged shop is in possession of his elder brother namely Sri Harish Chand Jain. It is also stated therein that no portion in the said joint house or any shop therein is in his vacant possession. These averments made in paragraph no.6 of the affidavit of the landlord have not been repelled by the petitioner/ tenant. As no alternative place in vacant state is available to the landlord, the findings arrived by the Courts below cannot be interfered. 9. Dealing with these submissions of the learned counsel for the parties having perused the record, it is reflected from paragraph no.5 of the release application, that it is stated by the landlord that he required the shop in question for establishing Advocate chamber. Though this need was not set up initially, however, by way of amendment, the specific need for establishing lawyer's chamber was set up. Though this need was not set up initially, however, by way of amendment, the specific need for establishing lawyer's chamber was set up. The order amending the plaint was not challenged and has become final between the parties. Both the Courts below have recorded categorical findings of fact that the landlord is running his chamber in a joint family residential property. The shop in question lies in a property which is exclusively owned by the applicant/landlord. 10. The shop suggested by the tenant, allegedly being in vacant state, also exists in the joint family residential property jointly owned by the brothers and sisters of the landlord including him. These fact are admitted to the petitioner. Even if it is accepted for a moment that the alleged shop which exists in a joint family property is lying closed from a perusal of the photographs placed on records, it cannot be said that the said shop is in vacant exclusive possession of the landlord. 11. It is specifically stated by the landlord in an affidavit filed before the Appellate Court that the said shop is occupied by his elder brother and is not available to him. Apart from the photographs of the said building, the will dated 17.07.1998 of mother of the applicant/landlord regarding the joint property namely House no. 155/59-D and the affidavits of the tenant, no other evidence has been brought on record to establish that the said shop is available to the landlord in vacant state. Moreover, the said property being a joint family property, the Court cannot ask the landlord to impress upon his brother to vacate and give possession of the shop or a portion in the joint property to run his chamber. The inconvenience caused to the landlord while using the said joint family property for running his lawyer's chamber has been narrated and is writ large on the face of the record. 12. At this stage learned counsel for the petitioner in rejoinder submits that the petitioner did not get an opportunity to dispute the assertions of the landlord regarding possession of the vacant shop as this affidavit was filed at the time of final disposal of the appeal. 12. At this stage learned counsel for the petitioner in rejoinder submits that the petitioner did not get an opportunity to dispute the assertions of the landlord regarding possession of the vacant shop as this affidavit was filed at the time of final disposal of the appeal. This fact would not make any difference for the simple reason that the petitioner was contesting the release application since the beginning with the assertion that alternative places are available to the landlord in vacant state to satisfy his need for lawyer's chamber. The landlord on the other was disputing this assertion since the beginning. It was, therefore, incumbent upon the petitioner to bring cogent evidence to establish his contention. This has not been done. 13. All the evidences available on record have been examined by both the Courts below and a finding of fact has been arrived at. This Court in exercise of power under Article 226 of the Constitution of India is not inclined to interfere. 14. Lastly learned counsel for the petitioner submits that the petitioner is an old tenant and is running a business of “Chandi Kalai (melting of silver)” in the market which is predominantly occupied for similar business. He has to fetch another place in the same vicinity and in the event of change of place of business he would suffer loss in terms of money, the prayer is to grant time to vacate. 15. To this submission only objection raised by Sri Komal Mehrotra learned counsel for the respondent is that the petitioner is occupying the shop for a meagre rent of Rs.40/- per month. In case, the Court is granting time to vacate, the rent of the shop may be increased. 16. Having considered the submissions of learned counsel for the parties in this regard. It is provided that;- 1. The petitioner shall file an undertaking before the Court below within six weeks that he shall vacate the shop in question on or before 31.12.2017. 2. An amount of Rs. 1000/- per month towards rent shall be paid by the petitioner to the landlord. This amount would be payable from May 2016 and the payment for the said month shall be made on 20.05.2016. The tenant shall continue to pay regular rent by 10th of each month till the date of vacation of the shop in question. 17. 1000/- per month towards rent shall be paid by the petitioner to the landlord. This amount would be payable from May 2016 and the payment for the said month shall be made on 20.05.2016. The tenant shall continue to pay regular rent by 10th of each month till the date of vacation of the shop in question. 17. In case of default of any of the above conditions, the release order shall become executable forthwith. 18. Dismissed.