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2016 DIGILAW 677 (ALL)

SHAMSHAD HUSSAIN v. AMRISH KUMAR

2016-02-25

SURYA PRAKASH KESARWANI

body2016
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri M.A. Qadeer, learned Senior Advocate assisted by Sri M.H. Qadeer, learned counsel for the defendant-petitioner and Sri Rajiv Joshi, learned counsel for the plaintiff-respondent. 2. Learned counsel for the defendant-petitioner submits as under : (i) The defendant No. 1 Smt. Anwari Begam was the tenant. She died during the pendency of the appeal. She had vacated the premises and thereupon the defendant-petitioner who was defendant No. 2 in the P.A. Case No. 3 of 2005 before the Prescribed Authority, unauthorizedly occupied the tenanted premises and as such provisions of Section 21 of U.P. Act No. 13 of 1972 were not applicable and consequently, the application filed by the plaintiff-respondent/landlord before the Prescribed Authority itself was not maintainable. The provisions of Sections 12 and 16 were applicable for release, which provides a different forum and authority for adjudication. (ii) The Prescribed Authority passed the order dated Ist January, 2006, which order was recalled by order dated 19.8.2006, yet the Prescribed Authority proceeded to decide the P.A. Case. (iii) The Appellate Court has not recorded any finding on the bona fide need but merely returned finding on the comparative hardship and as such the order of the Appellate Court is legally unsustainable. (iv) The Amendment application of the defendant-petitioner was allowed by the Appellate Court vide order dated 24th December, 2010 incorporating the amendment in the pleadings that six months notice is required under Section 21(1) (a) of the Act was not given, yet no finding has been recorded on this point by the Appellate Court. (v) The Appellate Court has wrongly held that the defendant-petitioner (defendant No. 2) being an unauthorized occupant has no right to hold the tenanted premises. 3. Sri Rajiv Joshi, learned counsel for the respondent vehemently argued as under : (i) The plaintiff-respondent purchased the shop in question by registered sale-deed dated 16.5.2001 from one Sri Gajendra Prasad Sharma and in the said shop Smt. Anwari Begam was continuing as a tenant. After expiry of three years, a notice was given to her on 2nd December, 2004, which was returned by refusal. Consequently, second notice dated 6th December, 2004 was sent which was not received back and yet the plaintiff-respondent issued a third notice dated 4.1.2005 to the defendants which was duly served on them on 10.1.2005. The case was filed before the Prescribed Authority on 1.7.2005. Consequently, second notice dated 6th December, 2004 was sent which was not received back and yet the plaintiff-respondent issued a third notice dated 4.1.2005 to the defendants which was duly served on them on 10.1.2005. The case was filed before the Prescribed Authority on 1.7.2005. Thus, despite the fact that there was no requirement of giving any notice for moving an application under Section 21(1)(a) of the Act after three years of purchase of the shop in question, yet the notices were duly given by the plaintiff-respondent, which were duly served upon the defendants. In the case of Anwar Hasan Khan v. Mohd. Shafi and others, (2001) 8 SCC 540 (Para-10), Hon’ble Supreme Court laid down the law that there is no requirement to give six months notice if the release application under Section 21(1) (a) is filed after expiry of three years of the purchase of property. (ii) In paragraph-1 of the release application, the plaintiff-respondent has clearly stated that he is the owner and landlord of the shop in question, which fact was admitted in her written statement dated 19.4.2008 by the defendant No. 1 (Smt. Anwari Begam) who was the tenant. Thus, it is undisputed that the plaintiff-respondent is the owner and landlord of the shop in question, while the defendant No. 1 Smt. Anwari Begam was the tenant. That apart during the pendency of appeal the defendant No. 2 who is the petitioner in the present writ petition and son of the defendant No. 1 has filed a substitution application after the death of her mother, which was allowed by the Appellate Court and the name of the petitioner-defendant was substituted. However, in the writ petition, the petitioner-defendant has not disclosed whether he has filed the writ petition as a tenant or an illegal occupant. (iii) If the writ petition has been filed in the capacity as tenant by the petitioner-defendant No. 2 by entering into the shoes of the defendant No. 1 then the entire controversy is concluded by finding of fact recorded by Prescribed Authority as well as Appellate Court on the point of bona fide need as well as comparative hardship. (iii) If the writ petition has been filed in the capacity as tenant by the petitioner-defendant No. 2 by entering into the shoes of the defendant No. 1 then the entire controversy is concluded by finding of fact recorded by Prescribed Authority as well as Appellate Court on the point of bona fide need as well as comparative hardship. The plaintiff-respondent has purchased the said property for doing business and he is in bona fide need of the said shop for the reason that adjacent to the shop in question he has taken a shop on rent and has been continuously harassed by his landlord. The restoration application for recall of the order dated 13.1.2006 to proceed ex parte was filed only by Smt. Anwari Begam (defendant No. 1) and the said order was recalled by the Prescribed Authority by order dated 19th August, 2006 only with respect to the defendant No. 1 (Smt. Anwari Begam) and not with respect to the defendant No. 2 (the present petitioner). (iv) The second Amendment application filed by the petitioner-defendant was rejected by the Appellate Court by order dated 2nd July, 2011, which attained finality. The third application under Order 41 Rule27 for additional evidence moved by the present petitioner was also rejected by the Appellate Court by order dated 25.7.2012, which was accepted by the present petitioner. (v) Sections 12 and 16 of the Act No. 13 of 1972 are not applicable in view of the submissions made above and facts of the present case. (vi) The findings recorded by the Prescribed Authority as well as by the Appellate Court are based on consideration of relevant evidences and materials on record. The findings so recorded being findings of fact, no interference can be made in view of the law laid down by Hon’ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, 2014 (107) ALR 697. (vii) In the case of Krishna Kumar Rastogi v. Sumitra Devi, (2014) 9 SCC 309 , Hon’ble Supreme Court held that the landlord was running his business in a rented accommodation, then it could not be said that he was not in bona fide need of the disputed shop. 4. (vii) In the case of Krishna Kumar Rastogi v. Sumitra Devi, (2014) 9 SCC 309 , Hon’ble Supreme Court held that the landlord was running his business in a rented accommodation, then it could not be said that he was not in bona fide need of the disputed shop. 4. In reply to the submissions of Sri Rajiv Joshi learned counsel for the respondent, Sri M.A. Qadeer, learned Senior Advocate submits that since the present petitioner was substituted on the death of the defendant No. 1 and has stepped into the shoes of defendant No. 1 and as such the present writ petition has been filed by him in the capacity as tenant. 5. I have carefully considered the submissions of learned counsel for the parties. 6. Briefly stated facts of the present case are that the disputed shop situate at Bahjoi Road, Alamsarai, Sambhal was purchased by the plaintiff-respondent by registered sale-deed dated 16.5.2001 from Sri Gajendra Prasad Sharma, who was the owner and landlord of the said shop, in which the defendant No. 1 Smt. Anwari Begam was the tenant. After expiry of three years the plaintiff-respondent issued three notices namely the notice dated 2nd December 2004, 16th December 2003 and 4.1.2005 to the defendant demanding arrears of rent and to vacate the premises on account of his bona fide need of the shop. Since the shop was not vacated by the defendant and as such the plaintiff-respondent filed P.A. Case No. 03 of 2005 on Ist July, 2005 before the Prescribed Authority, Sambhal. In paragraph-1 of the release application dated Ist July, 2007, the plaintiff-respondent stated himself to be the owner and landlord of the disputed shop. In paragraph No. 1 of the written statement dated 19.4.2008 the defendant No. 1 accepted the averment that the plaintiff-respondent is the owner and landlord of the disputed shop. In paragraph-16 of the written statement she accepted that the notice dated 4.1.2005 was given by the plaintiff which was received by her on 10.1.2005. Thus, the fact of issuance of notice by the plaintiff-respondent and service thereof on the defendant No. 1 as well as the fact that the plaintiff-respondent is the owner and landlord of the disputed shop of which defendant No. 1 was tenant, are wholly undisputed. 7. Thus, the fact of issuance of notice by the plaintiff-respondent and service thereof on the defendant No. 1 as well as the fact that the plaintiff-respondent is the owner and landlord of the disputed shop of which defendant No. 1 was tenant, are wholly undisputed. 7. By order dated 13.1.2006 the Prescribed Authority directed the case to be proceeded ex parte, since none appeared on behalf of the defendant. An application to recall this order was moved only by the defendant No. 1 Smt. Anwari Begam and by order dated 19.8.2006 the order to proceed ex parte was recalled only with respect to the defendant No. 1 Smt. Anwari Begam. The Prescribed Authority clearly mentioned in the order that the order dated 13.1.2006 to proceed ex parte has been set aside only with respect to defendant No. 1. It further appears that in the proceeding before the Prescribed Authority the defendant No. 2 who is the present petitioner has not filed any written statement. The Prescribed Authority considered the evidences filed by the parties and on consideration of the facts of the case, the Prescribed Authority passed the judgement dated 5.6.2010 allowing the application of the plaintiff-respondent. In the said judgement, the Prescribed Authority considered the question of bona fide need and comparative hardship and recorded findings of fact in favour of the plaintiff-respondent/landlord. The defendant No. 2 was held to be unauthorized occupant. 8. Aggrieved with the said judgement of the Prescribed Authority, the defendant Nos. 1 and 2 both preferred Rent Control Appeal No. 06 of 2010 (Smt. Anwari Begam and another v. Amresh Kumar). During the pendency of the aforesaid appeal Smt. Anwari Begam died on 6.10.2010. Thereafter the defendant No. 2 (the present petitioner) filed an amendment/substitution application dated 4.11.2010, which was allowed and accordingly, in the array of parties against the name of defendant-appellant No. 1 (dead), the name of defendant No. 2 was substituted. A new paragraph was allowed to be added after para-11 of the memo of appeal by amendment that the appellant No. 1 has left behind her five sons and two daughters but the appellant No. 2 who is the real son of the appellant No. 1 was doing business in the disputed shop alongwith appellant No. 1 and as such he is now the only tenant of the disputed shop. At this point, it is relevant to note that in her written statement while replying to the contents of the release application the defendant No. 1 Smt. Anwari Begam has not made any such averment that the defendant No. 2 is doing business in the disputed shop alongwith her. 9. Thereafter, another amendment application was moved by the appellant-defendant No. 2/petitioner for amendment in the written statement regarding notice under Section 21 and the non-applicability of U.P. Act No. 13 of 1972 but the said amendment application was rejected by detailed/reasoned order dated 2.7.2011 passed by the Appellate Court. No paper has been brought on record in this writ petition to show that this order was either set aside or modified by any competent authority or Court. Thus, the order dated 2.7.2011 has also attained finality. Thereafter, the petitioner-defendant moved a third application before the Appellate Court under Order 41 Rule 27 of C.P.C. being Paper No. 36-C1 for adducing additional evidences, which application was rejected by the Appellate Court by a detailed and reasoned order dated 25.7.2012. Nothing has been brought on record of this petition to show that the order dated 25.7.2012 was modified or set aside by any competent Court of law. 10. It is wholly undisputed that the plaintiff-respondent is doing business in a rented premises adjacent to the disputed shop and has purchased the disputed shop to carry on his business. The bona fide need of the plaintiff-respondent of the disputed shop as well as comparative hardship was considered by the competent authority as well as by the appellate Court on the basis of relevant evidences and materials on record and concurrent findings of fact have been recorded that the plaintiff-respondent is in bona fide need of the disputed shop and comparative hardship is in his favour. In the case of Krishna Kumar Rastogi (supra) Hon’ble Supreme Court considered the bona fide need of the landlord when his son was running his business in a rented premises and relying upon the decision in the case of Mohd. Ayub and another v. Mukesh Chand, (2012) 2 SCC 155 (Para 15), Rishi Kumar Govil v. Maqsoodan and others, (2007) 4 SCC 465 (para-19) and in the case of Ragavendra Kumar v. Firm Prem Machinery and Company, (2000)1 SCC 679 , held bona fide need of the landlord as under: “15. Ayub and another v. Mukesh Chand, (2012) 2 SCC 155 (Para 15), Rishi Kumar Govil v. Maqsoodan and others, (2007) 4 SCC 465 (para-19) and in the case of Ragavendra Kumar v. Firm Prem Machinery and Company, (2000)1 SCC 679 , held bona fide need of the landlord as under: “15. Another fact relied by the High Court pertains to the fact that elder son of the appellant was running a business as a tenant in a shop opposite to the disputed shop. Had it been found that the son for whom the landlord needed the shop had already got his own shop, it could have been said that the need for the landlord is not genuine, but in the present case if one of the sons was running his business that too in a rented accommodation, it cannot be said that the need of the landlord was not bona fide. The sons of the appellant are not supposed to starve on street till the shop is actually vacated for them.” 11. In the present set of facts it is undisputed that the plaintiff-respondent is running his business in a rented accommodation and has purchased the disputed shop for running his business and as such it cannot be said that he was not in bona fide need of the disputed shop. 12. The submission of learned counsel for the petitioner that no notice was given or the provisions of Section 21(1)(a) has not been complied with prior to the institution of the case before the Prescribed Authority, deserves to be rejected on the facts of the present case. This Court has already noted the facts with regard to the purchase of disputed shop by the plaintiff-respondent by registered sale-deed dated 16.5.2001 and issuance of notice to the defendants by him on 2nd December, 2004, 6th December 2004 and 4.1.2005. In his written statement the defendant has categorically admitted the receipt of notice dated 4.1.2005 on 10.1.2005. Thus, the requirement of giving notice under Section 21 was complied with by the plaintiff-respondent. 13. The proviso to Section 21(1) of the Act is a protection to tenant against eviction from building for three years in case of change of ownership of the building. Thus, the requirement of giving notice under Section 21 was complied with by the plaintiff-respondent. 13. The proviso to Section 21(1) of the Act is a protection to tenant against eviction from building for three years in case of change of ownership of the building. This view taken by me is supported by the law laid down by Hon’ble Supreme Court in the case of Nirbhai Kumar v. Maya Devi, (2009) 5 SCC 399 (Para 5) overruling the earlier judgement in the case of Anwar Hasan Khan (supra). 14. The findings recorded by the Prescribed Authority as well as Appellate Court with regard to the bona fide need and comparative hardship of the plaintiff-respondent are findings of fact based on consideration of the relevant materials on record and as such the findings so recorded cannot be interfered with in writ jurisdiction under Article 226 of the Constitution of India unless it is shown that the findings are per-verse. Nothing has been brought on record and nothing has been pointed out that the findings so recorded are per-verse. 15. The submission of the learned counsel for the petitioner that the petitioner-defendant is tenant since he has stepped into the shoes of the defendant No. 1 being her son, also does not help the petitioner in any way. This is for reason that firstly; the petitioner has never set up his claim as tenant before the Court below and secondly; even if he is presumed to be a tenant being the son of the defendant No. 1, yet it is evident from record that the petitioner contested the appeal and was heard and the Appellate Court after considering the facts of the case, evidences and the submissions made by the parties, recorded the findings of fact with regard to the bona fide need of the plaintiff-respondent/landlord. The view taken by the Court below on the question of bona fide need also finds support from the law laid down by Hon’ble Supreme Court in the case of Krishna Kumar Rastogi v. Sumitra Devi, (2014) 9 SCC 309 , in which in paragraphs No. 12, 13 and 14 it was held as under : “12. The view taken by the Court below on the question of bona fide need also finds support from the law laid down by Hon’ble Supreme Court in the case of Krishna Kumar Rastogi v. Sumitra Devi, (2014) 9 SCC 309 , in which in paragraphs No. 12, 13 and 14 it was held as under : “12. In the present case, on going through the papers on record we find that the High Court has given too much emphasis to the affidavit filed by the witness Vijay Pratap Singh that the appellant attempted to sell disputed shop to him. It is relevant to mention here that the said fact was denied by the appellant. In our opinion, merely for the reason that some witness has stated that the landlord attempted to sell the property his statement cannot be said to be reliable, as has been believed by the High Court or the Appellate Court, unless such fact is supported with documentary proof. There appears no document on record to support the bald statement of the witness Vijay Kumar Singh to dislodge the case of bona fide requirement of the shop claimed by the appellant for his son who was unemployed. 13. Another fact relied upon by the High Court pertains to the fact that the elder son of the appellant was running a business as a tenant in a shop opposite to the disputed shop. Had it been found that the son for whom the landlord needed the shop had already got his own shop, it could have been said that the need for the landlord is not genuine, but in the present case if one of the sons was running his business that too in a rented accommodation, it cannot be said that the need of the landlord was not bona fide. The sons of the appellant are not supposed to starve on the street till the shop is actually vacated for them. 14. For the reasons as discussed above, we are of the view that the High Court has erred in law in dismissing the petition of the appellant. We further find that the Appellate Court has allowed the appeal of the tenant against the weight of the evidence on record. We concur with the view taken by the trial Court /Prescribed Authority. Accordingly, we allow these appeals and set aside the orders challenged before us. We further find that the Appellate Court has allowed the appeal of the tenant against the weight of the evidence on record. We concur with the view taken by the trial Court /Prescribed Authority. Accordingly, we allow these appeals and set aside the orders challenged before us. However, considering the facts and circumstances of the case, we allow the respondent/tenant to vacate the premises by 31st December, 2014 whereafter the landlord/appellant shall be at liberty to get executed the order dated 21st September, 1999 passed by the Prescribed Authority/Additional Civil Judge (S.D), Nagina. However, there is no order as to costs.” 16. In view of the above discussions, I do not find any merit in the writ petition. The writ petition lacks merit and therefore, deserves to be dismissed. 17. In result, writ petition fails and is hereby dismissed. 18. After the judgement was dictated in the open Court, learned counsel for the petitioner prayed that two months time may be allowed to the petitioner-defendant to vacate the disputed shop on payment of appropriate amount of damages. He submits that the petitioner undertakes to vacate the disputed shop within two months. 19. Considering the prayer so made, petitioner is permitted to give the aforesaid undertaking before the Prescribed Authority before 20.4.2016 and shall deposit within the same period damages for two months @ Rs. 1,500/- per month. If an undertaking as aforesaid is given and amount of damages for two months is deposited by the petitioner-defendant within the stipulated time before the Prescribed Authority, then the petitioner-defendant shall not be evicted till 30th April, 2016.