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2017 DIGILAW 2747 (ALL)

Jitendra Kumar Verma v. Ashok Kumar Verma

2017-11-27

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard Sri Ramendra Asthana, learned counsel for the petitioner-tenant and Sri Raj Kumar Kesari, learned counsel for the respondent no. 1-landlord and perused the record. 2. Present petition has been filed challenging the judgment and order dated 31.10.2017 passed by the Additional District Judge, Agra dismissing Rent Control Misc. Appeal No. 89 of 2014 (Jitendra Kumar Verma vs. Ashok Kumar Verma and another) and the judgment and order dated 13.10.2016 passed by the learned Prescribed Authority No. 2/Additional Civil Judge (Senior Division) Court No. 6, Agra allowing release application registered as P.A. Case No. 61 of 2011 (Ashok Kumar Verma vs. Jitendra Kumar Verma and another). 3. The release application was filed by the landlord-Ashok Kumar Verma (respondent no. 1 herein) under Section 21(1)(a) of the UP Act 13 of 1972 (hereinafter referred to as the 'Act') regarding shop no. 12/106/1-2 Katra Hathishah, Nai Ki Mandi, Agra on the basis of his bona fide need himself that he is retired bank employee and for establishing a business for his unemployed son Pawan Kumar Verma on part of the shop and for having one garage on part of the shop. It was asserted in the release application that defendant no. 2-Devendra Kumar Verma is having his own shop in the name and style of M/s. Bishan Swaroop Devendra Kumar Jewellers, Namak Mandi, Agra and as such, the defendants have alternative accommodation in possession. The suit was contested on the ground that the son of the landlord Pawan Kumar Verma is employed and landlord has several shops in his possession and specifically one shop in possession of Ramesh Chaddha was released during pendency of the litigation, which is in possession of the landlord and one shop is still lying closed and vacant. 4. The bona fide need was considered in details after considering the assertions made by both the parties and it was found that the defendant no. 2-Devendra Kumar Verma is having one shop in the name and style of M/s. Bishan Swaroop Devendra Kumar Jewellers, Nai Ki Mandi, Agra, which is not in dispute and as such, the need of the landlord was found to be genuine and bona fide. It was also found that it is not in dispute that the shop in question can be used partly for garage and partly for commercial purpose for the business of son of the landlord. It was also found that it is not in dispute that the shop in question can be used partly for garage and partly for commercial purpose for the business of son of the landlord. Such findings were affirmed in appeal by the lower appellate Court. 5. Submission of the learned counsel for the tenant-petitioner is that findings of the trial Court with regard to bona fide need is incorrect, inasmuch as several shops are in possession of the landlord. It is next submitted that one shop in possession of Ramesh Chaddha has been released in favour of the landlord and one shop is lying vacant and closed by putting shutter on the same and therefore, the need of the landlord is not bona fide and genuine. It was further submitted that it is a case where the shop in question is a big shop and therefore, the question of part release is liable to be considered, which although was not raised before the court below and can be considered by this Court as it is settled law that this question can be considered by this Court also. Attention was drawn to the provisions of Section 21 (1) of the Act as well as the Rule 16 of the Rules framed under the Act. It was submitted that the question of part release is liable to be considered by this Court. 6. Per contra, learned counsel for the landlord-respondents has supported the judgments impugned herein and submitted that since the shop is required for the purpose of bona fide need of his unemployed son, no interference is required in the impugned judgments. It is next contended that the question of part release in the present case in view of the need that has been set up before the Court below, does not arise. It was pointed out that son of the landlord is only an apprentice and is getting very minimum remuneration per month. It was also pointed out that the shop in possession of Ramesh Chaddha was got released on the basis of requirement of Rahul Soni and therefore, the same is not vacant. Insofar as the one shop existing on property no. It was also pointed out that the shop in possession of Ramesh Chaddha was got released on the basis of requirement of Rahul Soni and therefore, the same is not vacant. Insofar as the one shop existing on property no. 12/106/1-2, which is lying vacant and closed, is concerned, they are not shop but the same is being used as store room and temple and a Well on which a shutter has been put for safety and as such, it cannot be said that it is a shop. 7. I have considered the rival submissions and perused the record. 8. I find that the concurrent findings have been recorded on the issues dealing with each and every documents and also making reference to each and every shop/property that are in possession of the landlord and it was found that no shop is lying vacant. The shop in possession of Ramesh Chaddha was got released for the purpose of Rahul Soni and not for the requirement of Pawan Kumar Verma. Apart from that, the fact that the landlord is retired bank employee and wants to establish a business himself along with his son Pawan Kumar in part of the shop and the part of the shop is to be used as garage, therefore, the personal need of the landlord is genuine and bona fide. 9. Insofar as the comparative hardship is concerned, admitted fact is that the defendant no. 2-Devendra Kumar Verma, who has not come forward to challenge the release of the shop, is having business in Nai Ki Mandi, Agra and therefore, the petitioner herein also has alternative accommodation available to him and as such, the question of comparative hardship also requires no interference. 10. Insofar as the question of part release is concerned, much emphasis was given by the learned counsel for the petitioner that the need of the landlord can be satisfied by part release of the shop as it is a big shop. There is no quarrel about the law that this Court can also consider the question of part release while deciding the case. There is no quarrel about the law that this Court can also consider the question of part release while deciding the case. In the present case, although the dimensions of the shop have not been given, however it is not in dispute that it is a two door shop, however, specific case of the landlord in the release application is that he wants to use part of the shop as garage and in rest of the space he wants to establish business for his unemployed son Pawan Kumar Verma. 11. It is not in dispute that the landlord is retired bank employee, therefore, he has a right to carry on some business after his retirement. For the purpose of part release, it is also relevant that the defendant no. 2 is having his shop where business of jewellery is being carried on. In such view of the matter, the petitioner has alternative space to establish his business or shift his business. As such, in the light of provisions of Section 21 (1) of the Act and Rule 16 of the Rules framed thereunder, a suitable accommodation is available with the tenant to which he can shift his business without substantial loss and therefore, I do not find it to be a fit case for part release. 12. 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. 13. Present petition lacks merit and is accordingly dismissed. 14. At this stage, learned counsel for the petitioner-tenant prays that some time may be granted for vacating the house/shop in dispute. 15. 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 28.5.2018. (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. 2,000/-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 28.5.2018 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.