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2017 DIGILAW 2748 (ALL)

Khan Chand Singh v. Premawati

2017-11-27

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Som Narayan Mishra, learned counsel appearing for the respondents. 2. Present petition has been filed for quashing the judgment and order dated 27.7.2016 passed by the Prescribed Authority / Additional Chief Judicial Magistrate, Anoop Shahar, Bulandshahar in Rent Case No. 3 of 2012 (Smt. Premawati vs. Khanchand Singh) as well as impugned judgment and order dated 7.9.2017 passed by Additional District Judge, Anoopshahar, Bulandshahar in Rent Appeal No. 2 of 2016 (Khanchand Singh vs. Smt. Premawati). 3. The application filed by the landlady under Section 21(1)(a) of the Act 13 of 1972 was allowed. The appeal filed against the same by the tenant was also dismissed. The issues regarding bonafide need and comparative hardship were also decided against the tenant, which were affirmed in the appeal filed by the tenant. The suit was filed on the ground that the business of her husband is not faring well and her, who son is living separately is also doing his own business separately. One shop released in favour of the landlady has been handed over to grandson Manish for his business and one widow daughter is living with her and it was specifically asserted that the son of the tenant is owner of one school and his wife has one alternative shop on railway road and as such the tenant has alternative shop for shifting. The suit was allowed. The suit was contested by the tenant mainly on the ground that the landlady is an old ailing lady and she does not require the shop for her own purposes. She had several shops and even after the release of the other shops the same were not occupied and the sole object to somehow get the shop vacated and there is no bonafide need. However, it was not disputed by the tenant that the shop no. 295 belongs to his wife Smt. Indrawati, whereon business is also being carried. 4. Submission of learned counsel for the petitioner is that in the facts and circumstances of the case where it has been fully established that Premawati is an ailing lady and more than 70 years and is not living separate from husband and her son Ashok and grandson, therefore, it is very much clear that the need is not bonafide and other shops are suitable for carrying on their business. It was also not established that she has burden to maintain her widow daughter. Several documents were filed that the landlady is in possession of the many shops and in one of the shop released in her favour she has given to her grandson Manish and her need is not bonafide. 5. Per contra, learned counsel appearing for the respondent has submitted that a finding has been recorded that the petitioner has an alternative shop and is in possession and therefore, he cannot contest the bonafide need of the landlady and he has no right remain in possession of the shop in dispute. 6. I have considered the submissions and have perused the record. 7. It is not in dispute that one widow daughter is living with the landlady. It is also not in dispute that one shop is in the name of wife of the tenant, therefore, he has alternative place for shifting his business. In such view of the matter, I find that where the tenant has available alternative accommodation for shifting, he cannot challenge the claim of the landlady for release of the shop in question. Insofar as the other shops are concerned, the same has been dealt with and it was found that none of the shop is in possession of the landlady. Such findings are based on documentary evidence and has admission of the tenant that one alternative shop was acquired by his wife during the pendency of the litigation. The question of comparative hardship in this case, where the tenant has alternative accommodation available to him and he has not made any effort to search out any other alternative accommodation during litigation, has also been correctly decided by the court below against the tenant. 8. In such view of the matter, I do not find any legal infirmity or jurisdictional error in the orders impugned herein. Present petition is devoid of merits and is accordingly dismissed. 9. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. Present petition is devoid of merits and is accordingly dismissed. 9. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited. 10. 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 31.5.2018. (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. 1,000/-per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.5.2018 or till the date he vacates the premises, whichever is earlier and the landlord is 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.