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2017 DIGILAW 2646 (ALL)

Akhlaq Ahmad v. Jameel Ahmad

2017-11-15

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard Sri Rafiuddin Ansari, learned counsel for the tenant-petitioner and Sri Pradeep Kumar, learned counsel along with Sri Uma Nath Pandey, learned counsel for the landlord-respondent no. 2 and perused the record. 2. Present petition has been filed challenging the judgment and order dated 29.7.2016 passed by the Prescribed Authority/Civil Judge (Sr. Div), Amroha in P.A.Case No. 6 of 2013 (Jameel Ahmad and another vs. Akhlaq Ahmad and others) and the judgment and order dated 14.7.2017 passed by the Additional District Judge/Fast Track Court No. IInd, District Amroha in Rent Appeal No. 2 of 2016 (Akhlaq Ahmad vs. Jameel Ahmad and others). 3. By the impugned order dated 29.7.2016, the release application filed by the landlord (respondents herein) was allowed, and the appeal filed by the tenant (petitioner herein) was dismissed by the lower appellate court. Three issues were framed by the trial Court. The first issue was as to whether there is a relationship of landlord-tenant between the parties or not. The same was decided in affirmative holding that landlord-tenant relationship exists between the parties. The second issue was regarding bona fide need of the landlord and it was held that the need of the landlord is bona fide. The third issue regarding comparative hardship was also decided in favour of the landlord. All these finding were affirmed by the lower appellate Court. 4. Challenging the aforesaid judgment, submission of learned counsel for the tenant-petitioner is that the property was purchased by the present landlord jointly with respondents no. 3 and 4 vide registered sale deed dated 21.11.2008 but all the landlords have not joined the release application. It was next submitted that the landlords are practising Advocates and their need is not bona fide. The need of the wives, as set up by the landlords that the shop in question is required for the purpose of business by their wives for setting up a business of cosmetics and artificial jewellery, is not bona fide. It was next submitted that comparative hardship has also been wrongly decided, inasmuch as the landlord has huge property in possession whereon such business can be carried out. It was next submitted that comparative hardship has also been wrongly decided, inasmuch as the landlord has huge property in possession whereon such business can be carried out. It was further submitted that an application under Order 41 Rule 27 CPC was filed before the lower appellate Court with the assertions that the landlord has two houses in some other locality on the main road and therefore, the need of the wives as set up in the release application can be satisfied by opening the shop in the house available in the other locality. Submission is that such application remain undisposed and that the same was liable to be considered and decided either way, whether rejected or allowed. 5. In support of his arguments, learned counsel for the petitioner has placed reliance on the judgements of Hon'ble Apex Court rendered in the case of Malayalam Plantations Ltd. vs. State of Kerala and another, (2010) 13 SCC 487 and in Bishan Chand vs. V Addl. District Judge, Bulandshahr and another, 1982 ARC 440 as well as judgments of this Court rendered in the case of Hansraj vs. IInd Additional District Judge, Nainital and others, 1979 ARC 495; Ashok Kumar Chaudhary and others vs. The Ist Addl. District Judge, Allahabad and others, 1984 (1) ARC 636; and in Prakash Chandra and others vs. The District Judge, Fatehpur and others, 1984 (1) ARC 286. 6. Per contra, Sri Pradeep Kumar, learned counsel for the landlord-respondents while supporting the judgments of the Court below, has drawn attention to the order sheet of the lower appellate Court to highlight that constantly adjournments were being sought by the tenant and ultimately during the course of hearing an application under Order 41 Rule 27 CPC was filed merely to somehow linger on the case or to cause delay in disposal of the case. He further submitted that even otherwise assertions made in that application are absolutely vague. He further submits that concurrent findings of fact have been recorded and they do not require any interference by this Court. 7. I have considered the rival submissions and perused the record. 8. He further submitted that even otherwise assertions made in that application are absolutely vague. He further submits that concurrent findings of fact have been recorded and they do not require any interference by this Court. 7. I have considered the rival submissions and perused the record. 8. Insofar as the first argument of the learned counsel for the petitioner is concerned, it is the settled law that it is not necessary that all the landlord should join the release application or the case filed against the tenant and in case one or few of the landlords are pursuing the matter, it would meet the requirement of law. In such view of the matter, the first argument of learned counsel for the petitioner is liable to be rejected and is hereby rejected. 9. Insofar as the bona fide need as set up by the landlord is concerned, the concurrent findings of fact have been recorded by the courts below and in the modern time it cannot be said that wives are not coming forward to carry on business on their own and for this purpose affidavits were also filed in support of such bona fide need. As such, this deserves no interference by this Court. 10. Insofar as the issue of comparative hardship is concerned, it has come on record that the tenant never made any effort to search out alternative accommodation during the pendency of litigation and it is the settled law that under such circumstances this issue is liable to be decided against the tenant. 11. Insofar as the argument regarding the application filed Order 41 Rule 27 CPC and the documents filed therewith is concerned, the same were filed during the course of hearing and as such, apparently it was simply an attempt to somehow linger on the matter. Even otherwise, looking into the assertions made in the application, it is very much clear that the tenant wants to bring on record the documents relating to two houses available to the landlord in some different locality. The release is being sought for a shop and therefore, prima facie the documents relating to residential accommodation/house is not relevant for this purpose. Even otherwise, the landlord can not be directed by the tenant as to how and where he should carry on his business. 12. The release is being sought for a shop and therefore, prima facie the documents relating to residential accommodation/house is not relevant for this purpose. Even otherwise, the landlord can not be directed by the tenant as to how and where he should carry on his business. 12. Insofar as the argument of learned counsel for the petitioner that he is tenant for the last four decades is concerned, the bona fide need of the wives to set up a own business cannot be denied simply because the petitioner is an old tenant. The petitioner is carrying the cloth business in the shop in dispute and as such, it cannot be said that the goodwill so earned is such that it would outweigh the bona fide need of the landlords. 13. In such view of the matter, I do not find any legal infirmity in the findings so arrived at by the Courts below, therefore, the orders impugned herein are left without interference. 14. Present petition lacks merit and is accordingly dismissed. 15. At this stage, learned counsel for the petitioner-tenant prays that some time may be granted for vacating the house/shop in dispute. 16. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that: (1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 15.8.2018. (2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order; (4) The tenant-petitioner shall pay damages @ Rs. 1,500/-per month by 07th day of every succeeding month to the landlord and if he refuses to accept, continue to deposit the same in the Court below till 15.8.2018 or till the date he vacates the premises, whichever is earlier and the landlord shall be at liberty to withdraw the said amount; (5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute; (6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period; (7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. (8) In case the shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. No order as to costs.