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2016 DIGILAW 293 (ALL)

Kusum Kushwaha v. Rakesh Kumar Kohli

2016-01-21

SUNITA AGARWAL

body2016
JUDGMENT Sunita Agarwal, J. – Supplementary Rejoinder Affidavit filed today be taken on record. 2. The petitioners are owners and landlady of the shop in question which exists at the ground floor of the House No.53-A/1, Meerapur, Allahabad. The release application was filed under Section 21(1)(a) by Nanku Lal Kushwaha in the year 1994 with the assertion that he and his daughters who were living with him required the shop in question to start a business. 3. An affidavit was filed by Nanku Lal Kushwaha, the applicant landlord in support of his assertion that he required the shop for his business. 4. A written statement was filed on 02.02.1996, the need of Nanku Lal Kushwaha, the applicant-landlord was contested on the ground that another shop in the same house was vacant but was given on rent to one Preetam Gupta, @ Rs. 450/- on 12.05.1994. In case the applicant wanted to start his business, he could have used that shop which was in his vacant possession. The need of the applicant-landlord, therefore, was not bona fide but a mere desire to evict the tenant. 5. It appears that during the pendency of the release, the applicant-landlord died and his two daughters filed affidavits before the Prescribed Authority that they needed the shop in question. In one of the affidavit filed by Smt. Kusum Kushwaha @ Guddi, elder daughter of the landlord, she stated that she wanted to start a business to meet out her daily expenses and to look after his parents. She had no other source of income. In a joint affidavit of two daughters namely Smt. Kusum Kushwaha and Smt. Manju filed on 28.5.2002, it was stated that both the daughters were living in the house in question since the lifetime of their father. They wanted to start their business in the shop in question. The release application was decided by the Prescribed Authority on 30.4.2008 and the need of both the daughters of the applicant-landlord was found to be genuine. 6. So far as the shop which was given on rent to Sri Preetam Gupta, is concerned, it was found that this fact would not make any difference as the shop was given on rent by father prior to filing of the release, it would not frustrate the need of the daughters who had filed their affidavits. 6. So far as the shop which was given on rent to Sri Preetam Gupta, is concerned, it was found that this fact would not make any difference as the shop was given on rent by father prior to filing of the release, it would not frustrate the need of the daughters who had filed their affidavits. The landlord was hard pressed as he had no other source of income apart from rental income. 7. The daughters also had to sell a portion of their house under financial constraint. While considering the need of elder daughter and the widow, the wife of the landlord, it was held that they had no other source of income, only a sum of Rs. 16,00/- could be earned by them towards rental income. The objection of the tenant that the daughters do not come within a family was rejected on the ground that there was no dispute about the fact that the elder daughter was deserted by her husband and was living with her parents. 8. On comparative hardship, it was found that a specific stand was taken by the landlady that the shop in question has been handed over to one Ramveer and the tenant himself was not doing business in the shop in question as he was employed in ITI Naini, Allahabad. 9. The contention of the tenant is that the shop was being run by his wife was considered and it was found that the tenant could not deny the specific assertion that the business was being run by another person, Ramveer, by leading cogent evidence. This apart, it was found that no effort was made by the tenant to get another shop. 10. The Appellate Court on the other hand, has rejected the release on the ground that the applicant-landlord did not require the shop in question. In case, he needed the shop for his business, he would not have given other vacant shop on rent to another tenant on 12.05.1994, barely five months prior to the filing of the release. This shows that after eviction of the sitting tenant, he would again let out this shop. 11. So far as the need of the daughters is concerned, it has not been considered by the Appellate Court at all. This shows that after eviction of the sitting tenant, he would again let out this shop. 11. So far as the need of the daughters is concerned, it has not been considered by the Appellate Court at all. The affidavits filed by the daughters before the Prescribed Authority categorically narrating their need has been rejected on the ground that the applicant-landlord had let out another shop. 12. Another contentions of the daughters that they needed the shop in question to use a portion thereof for access to their residential house was also rejected on the ground that no amendment was sought in the release application. The need in the release application was to start a business and not for access to the residential portion of the building. 13. Challenging these findings, the contention of learned counsel for the petitioner is that the petitioners i.e. the daughters of the applicant-landlord were substituted after the death of their father during the pendency of release. The Prescribed Authority after consideration of the need of the daughters found that they required the shop in question for their livelihood. It was found that the petitioners had no other source of income except the meagre rental income from two shops which was insufficient to meet the expenditures of the family. It was also found that one of the daughters of the applicant-landlord was deserted by her husband and was living with him. All these aspects of the matter have been totally ignored by the Appellate Court while rejecting the release application. The release application has been rejected without upsetting the findings recorded by the Prescribed Authority that the daughters of the applicant landlord had no other source of income. The need has been rejected for an act of the applicant-landlord for which the daughters cannot be held responsible. 14. On the other hand, learned counsel for the respondents submits that one shop was available to the landlord when he filed the release application in the year 1994. The documents on record make it evident that the applicant landlord did not need the shop for his business. The daughters also sold a portion of the residential house and in case the shop in question is vacated they would again sell the entire property and will not use it for their business. 15. Having heard learned counsel for the parties and perused the record. The daughters also sold a portion of the residential house and in case the shop in question is vacated they would again sell the entire property and will not use it for their business. 15. Having heard learned counsel for the parties and perused the record. Admittedly, the release application was filed for the need of the applicant-landlord and his daughters. The applicant-landlord died during the pendency of the release application. Both the daughters filed their affidavits to assert that they were living with the landlord and needed the shop in question for their own livelihood. This fact could not have been ignored by the Appellate Court in absence of any other evidence on record to establish that the daughters were engaged elsewhere. 16. The finding of the Prescribed Authority that the elder daughter of the landlord was deserted by her husband and was living with the widow i.e. wife of the landlord in the house in question and she had no other source of income except the rental income was not upset by the Appellate Court. 17. There cannot be two opinion about the fact that a daughter who is living with the landlord or is dependent upon him can maintain the release application for her need. The need of daughter could not have been rejected on the ground that the father, the applicant-landlord gave one shop on rent prior to filing of the release in-stead of using it for his business. 18. Moreover, it has come up on record that after the death of their father, the daughters had to sell a portion of their residential house under financial constraint. They had to sell out another shop to the sitting tenant namely Preetam Kumar Gupta by way of a sale deed dated 16.07.2015. The sale deed narrates that they were constrained to sell this property as they were facing financial crisis, needed money for their livelihood, and for payment of taxes and personal debts. 19. The lower Appellate Court, therefore, had erred in upsetting these finding on surmises and conjunctures. The judgment and order passed by the Appellate Court cannot be sustained and is hereby set aside. 20. 19. The lower Appellate Court, therefore, had erred in upsetting these finding on surmises and conjunctures. The judgment and order passed by the Appellate Court cannot be sustained and is hereby set aside. 20. At this juncture, learned counsel for the respondent submits that the factum of sale of another shop in favour of the sitting tenant by the petitioners would, however, frustrate their need as it is established that they do not intend to do any business in the shop in question. 21. This argument of the learned counsel for the respondent is misconceived inasmuch as it is evident that another shop in the premises in question was not in vacant possession of the petitioners and was sold on account of the fact that the petitioners were in dire need of money. 22. No other point has been pressed. 23. Lastly, learned counsel for the respondent submits that a reasonable time may be provided to the respondents to shift to another place. 24. To this submission no objection has been taken by the learned counsel for the petitioners. 25. It is, therefore, directed that the respondents shall file an undertaking within a period of four weeks before the Court below that they shall vacate the shop in question on or before 01.02.2017. Further, they shall pay the current rent regularly to the petitioners till the date of vacation of the shop in question. 26. In case the respondents fail to furnish the undertaking or vacate the shop in question within the time given above or make a default in payment of rent, proceedings for their eviction may be initiated. 27. With the above observations and directions, the writ petition is allowed. Petition allowed.