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2017 DIGILAW 241 (ALL)

Salim Khan v. Nafis Ahmed

2017-01-17

MANOJ MISRA

body2017
JUDGMENT Manoj Misra, J. -- Heard learned counsel for the petitioner and perused the record. 2. By the present petition, the petitioner has challenged the orders dated 13.12.2016 and 05.10.2011 passed by the Additional District Judge/Special Judge (E.C. Act) in Rent Control Appeal No. 39 of 2011 and the Prescribed Authority/Judge, Small Causes, Jhansi in P.A. Case No. 51 of 2010 respectively. 3. A perusal of the record would go to show that the respondent-landlord filed an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 for release of the accommodation in possession of the petitioner-tenant being part of House No. 114/26 (New No. 201) situate outside Saiyar Gate, Jhansi. The residential need for the accommodation was set up by the landlord-respondent by claiming that his family consisted of six members and they had only one room, kitchen, bathroom, latrine and a courtyard on the first floor. 4. The reDlease application was inter alia contested by the petitioner by claiming that the landlord had about five shops on the ground floor and on the first floor he had a huge hall 30 ft by 12 ft in addition to kitchen, bathroom, latrine and courtyard in his possession which was sufficient for his residential need. 5. The courts below found that the accommodation in possession of the landlord-respondent, considering the size of his family, was not sufficient and even assuming that the landlord had a hall of 30 ft by 12 ft in his possession that did not satisfy residential need of five members in the family. Moreover, the landlord cannot be forced to partition the hall to convert it into several rooms. Further, the courts below observed that from the documentary evidence, the extent and the size of the hall as alleged to be in possession of the landlord-respondent was not 30 ft by 12 ft feet but appeared to be 16 feet by 10 feet. 6. After considering that the landlord-respondent had bonafide need of the accommodation in dispute, the comparative hardship was also assessed and it was found that the same was greater for the landlord if the premises in question was not released in his favour than the hardship which the tenant would suffer if he was required to vacate the premises. 6. After considering that the landlord-respondent had bonafide need of the accommodation in dispute, the comparative hardship was also assessed and it was found that the same was greater for the landlord if the premises in question was not released in his favour than the hardship which the tenant would suffer if he was required to vacate the premises. While returning the aforesaid finding, the court below observed that there was no material on record to show that the tenant had made efforts to search for an alternative accommodation after institution of the release application. 7. The findings which have been returned by the courts below are based on appreciation of evidence on record and there is no apparent legal error committed by the courts below while returning those findings. 8. Learned counsel for the petitioner has submitted that one of the members of the landlord-respondent family, namely, mother-in-law of the landlord, had expired during the pendency of the proceeding and that during the pendency of the appeal, an application was also filed by the petitioner for bringing on record certain photographs which was not accepted by the appellate court. 9. In so far as the death of the mother-in-law of the landlord-respondent is concerned that would not make a material difference because excluding the mother-in-law, the family of the landlord-respondent consisted of five members and the accommodation in possession of the landlord-respondent was certainly not sufficient for five members in the family. In so far as the submission that additional evidence was not taken by the courts below is concerned, the order dated 01.11.2013 by which the application 27-C2 for bringing on record additional evidence, was rejected, filed as Annexure 6 to the petition, has been perused. 10. A perusal of the order dated 01.11.2013 would go to show that the photographs which were sought to be brought on record were already existing on record and the relevance of those photographs was not disclosed. The affidavit of Izhar Khan, who is son of the petitioner, through whom the photographs were sought to be placed on record of the proceeding, has been filed as Annexure 5 to the petition. A perusal of the affidavit does not show of which house the photograph was being submitted and as to how that house was in possession of the landlord-respondent. 11. A perusal of the affidavit does not show of which house the photograph was being submitted and as to how that house was in possession of the landlord-respondent. 11. Under the circumstances, the order of the appellate court refusing to accept the photographs on record cannot be faulted. The findings returned by the courts below are based on appreciation of evidence on record and nothing has been shown as to how those findings are vitiated which may warrant interference under Article 226 of the Constitution of India. 12. For the reasons mentioned above, this Court finds no good reason to interfere with the orders passed by the courts below. 13. At this stage, learned counsel for the petitioner prayed that some reasonable time may be allowed to vacate the premises. 14. Considering the facts and circumstances, this Court is of the view that the interest of justice would be served if the petitioner is allowed time up to 30th April, 2017 to vacate the premises and handover possession to the landlord-respondent by then. 15. This petition is therefore disposed of by holding that no good ground has been shown to set aside the judgment and orders passed by the courts below. However,it is provided that the petitioner shall not be evicted from the premises in dispute pursuant to the release order provided the petitioner by 15.02.2017 furnishes an undertaking along with an affidavit in the Court of Prescribed Authority, Jhansi that he shall handover vacant and peaceful possession of the premises in question to the landlord-respondent on 01st May, 2017. 16. It is made clear that if by 15th February, 2017 the aforesaid undertaking is not furnished before the Court of Prescribed Authority, Jhansi then the release order shall become executable forthwith. It is also made clear that if by 01st May, 2017 the petitioner fails to handover vacant and peaceful possession of the premises in question to the landlord-respondent despite undertaking, it would not only be open to the landlord-respondent to execute the release order but he may also initiate proceeding against the petitioner for contempt of Court.