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2016 DIGILAW 3445 (ALL)

Awadh Kumar Agarwal v. Krishan Kumar Rajat Kumar

2016-10-07

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. -- I have heard Sri Manish Tandon, learned counsel for the petitioner and Sri Ramendra Asthana, learned counsel for the respondent No.2. 2. The dispute is about two shops on the ground floor of the building No. 55/122, Generalganj, Kanpur Nagar. 3. The aforesaid two shops are under tenancy of the respondents No. 1 and 2 separately at a rent of Rs.4,275.50 per month and Rs.5,000/- per month respectively. 4. The petitioner applied for the release of the above shops under Section 21(1(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as the Act) for the need of the law chambers of his son Manish Kumar Agarwal, who is said to be a practicing lawyer. 5. The release application was contested by the respondent No.1 by accepting himself to be the tenant for the last 50 years. He alleged that the son of the petitioner is not practicing. He is sitting with his mother on a Boutique shop. The petitioner has one another shop on the ground floor in the same building at Generalganj, which is kept locked. He has one another room on the first floor of the said building. Therefore, the need as set up by him is not bona fide. 6. The respondent No.2 contested the release application alleging that the son of the petitioner is having an office at G-18, City Center, 63/2, The Mall, Kanpur and his need for the office as alleged is merely an eyewash. 7. The release application was allowed by the Prescribed Authority vide judgement and order dated 05.10.2012 holding that the respondents have admitted the relationship of landlord and tenant. The petitioner has proved his bona fide need for establishing a law chamber of his in the shop in dispute and that he would suffer more in case the release application is rejected. 8. The Prescribed Authority held that the family of the petitioner consist of him, his wife Smt. Usha, son Manish Agarwal, his wife and his daughter. The petitioner is enrolled with the U.P. Bar Council and is registered with the Kanpur Bar Association in respect whereof sufficient evidence including enrollment and registration with the Bar Council and Bar Association to establish that he was practicing as a lawyer was on record. The petitioner is enrolled with the U.P. Bar Council and is registered with the Kanpur Bar Association in respect whereof sufficient evidence including enrollment and registration with the Bar Council and Bar Association to establish that he was practicing as a lawyer was on record. He had practicised as a junior to one Shri Sundar Lal Goyal, Advocate since 2004, who has filed his personal affidavit certifying him to be a practicing lawyer. 9. The Prescribed Authority held that the one room said to be available on the first floor of the building No. 55/122, Generalganj, Kanpur Nagar is not suitable for any commercial or professional purposes as staircase to it is very narrow and it is part of the residential accommodation of the petitioner and the other co-owners. 10. In respect to the one shop alleged to be available on the ground floor of the aforesaid building, it was held that the petitioner himself is using it for doing cloth business there from and is not suitable for the chamber of the petitioner's son as it is very small in size. 11. The Prescribed Authority further dealt with the office place alleged to be available with the son of the petitioner in the City Center, The Mall at Kanpur and considering the entire evidence on record including that of the documents relating to case No.857 of 2009 before the District Consumer Forum came to the conclusion that it is not an office but a Boutique shop of the wife of the petitioner and it is small in size which is not suitable for office purposes. 12. The respondents aggrieved by the aforesaid judgement and order of the Prescribed Authority preferred separate appeals under Section 22 of the Act. 13. The aforesaid appeals have been decided by common judgement and order dated 03.04.2014. The order of release passed by the Prescribed Authority has been set aside and the release application has been rejected. 14. The Appellate Court below held that the son of the petitioner is having office accommodation in the City Center, The Mall at Kanpur and therefore, the need as set up for him is not bona fide. The order of release passed by the Prescribed Authority has been set aside and the release application has been rejected. 14. The Appellate Court below held that the son of the petitioner is having office accommodation in the City Center, The Mall at Kanpur and therefore, the need as set up for him is not bona fide. The petitioner is only a co-owner of the shops in dispute and as there are other co-owners who have not been joined in filing the release application and have not been arrayed as the respondents it means they are not interested in getting the shops released rather they want to continue with the respondents as the tenants. 15. There is no dispute that the release application has been filed by the petitioner alone. No one else has joined him in filing it as the co-owners and no person who is the co-owner has been arrayed as the respondent. 16. There was no issue before the Prescribed Authority regarding the joint ownership of the shops in dispute. The petitioner had claimed himself to be the owner and had applied for the release of the shops wherein the respondents admitted themselves to be the tenant. Therefore, only obvious issue was regarding relationship of landlord and tenant which on the basis of the pleadings itself was decided in favour of the petitioner by the Prescribed Authority. It was only at the stage of the appeal that an objection in this connection was raised and it came on record that the application for the impleadment of the other co-owners was rejected meaning thereby that alleged co-owners were not considered to be the necessary or proper party to the proceedings for the release of the two shops. 17. In such a situation the issue of non-joinder of the co-owners if any was put to quietus. 18. The Full Bench of this court in Gopal Das and another Vs. Ist Additional District Judge, Varanasi and others connected matters vide 1987 (1) ARC 281 held that the release application filed by one of the co-owners and signed by him is maintainable even if the other co-owners are not impleaded. 19. 18. The Full Bench of this court in Gopal Das and another Vs. Ist Additional District Judge, Varanasi and others connected matters vide 1987 (1) ARC 281 held that the release application filed by one of the co-owners and signed by him is maintainable even if the other co-owners are not impleaded. 19. In view of the aforesaid Full Bench the appellate court could not have found faulty with the release application but the situation appears to be slightly different as it has come on record the other co-owners were opposed to the release of the shops. The impact of such an opposition vis-a-vis the aforesaid Full Bench decision which has not been considered and referred to by the Appellate Court requires to be dealt with on the basis of the evidence on record. 20. In addition to the above it is also part of the record that respondent No.2 had acquired a property 48/225-A, Generalganj which fact does not appear to have been disputed. 21. The impact of such an acquisition of property by the respondent No.2 has not been considered by the appellate court in which case probably there would not have been any difficulty for maintaining the order of release passed by the Prescribed Authority in respect of the shop occupied by him. 22. The evidence and the findings recorded by the Prescribed Authority established that Manish Kumar, son of the petitioner is a practicing lawyer. The petitioner had set up need for his chamber alleging that he requires one big room for himself, one for his clerk, one for the purposes of library and the other for keeping the files etc. 23. The Prescribed Authority has found that the shop No. G-18, City Center, The Mall, Kanpur measures only about 10' 9" x 12" which hardly would have satisfied the need of the petitioner's son. The said shop is being used by the petitioner's wife as her Boutique. 23. The Prescribed Authority has found that the shop No. G-18, City Center, The Mall, Kanpur measures only about 10' 9" x 12" which hardly would have satisfied the need of the petitioner's son. The said shop is being used by the petitioner's wife as her Boutique. The mere filing of a complaint by the son of the petitioner for the purposes of claiming compensation due to fire in the said shop against the Electricity Board alleging himself to be the holder of on Air Conditioner office therein does not mean he is running his Chamber there from particularly when the registration of the said shop and other documents clearly established that a Boutique is being run therein by the petitioner's wife wherein his son may be sitting as alleged but such a complaint is not a conclusive proof of the fact that he is the owner or the person running his law chamber there from. 24. The finding to this effect recorded by the Appellate Court without setting aside the finding in this regard recorded by the Prescribed Authority on the face of it appears to be faulty and requires re-appreciation of the entire evidence. 25. In view of the aforesaid facts and circumstances, the impugned order of the Appellate Court dated 03.04.2014 is unsustainable and is hereby quashed with the direction to the Appellate Court to re-decide the matter in the light of the observations made hereinabove. It is expected that the Appellate Court would proceed and decide the matter most expeditiously curtailing all unnecessary adjournments and fixing short dates keeping in mind the mandate of Rule 15 of the Rules frame under Act which also applies to appeals arising out of release proceeding. 26. The writ petition is allowed accordingly.