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2017 DIGILAW 2749 (ALL)

Akbar Hussain v. Nazma Begum

2017-11-27

VIVEK KUMAR BIRLA

body2017
JUDGMENT : VIVEK KUMAR BIRLA, J. 1. Heard learned counsel for the petitioner. 2. Present petition has been filed for quashing the order dated 28.9.2017 passed by the District Judge, Moradabad in Rent Control Appeal No. 23 of 2015 (Akbar Hussain vs. Smt. Nazma Begum) under Section 22 of the U.P. Act 13 of 1972 and order dated 23.5.2015 passed by Prescribed Authority / Civil Judge (J.D.), Sambhal under Section 21(1)(a) of the U.P. Act 13 of 1972 in P.A. Case No. 1 of 2009. 3. By the impugned judgment and order dated 23.5.2015 the release application filed by the landlady-respondent under Section 21(1)(a) of the Act 13 of 1972 was allowed. The appeal against the same by the tenant-petitioner was also dismissed. The findings of bonafide issue and comparative hardship were decided against the tenant. In the plaint the case was that the original landlord Zamiruddin died and thereafter the suit was filed by his widow Nazma Begum on the ground that she had two sons and three daughters, out of which elder son died in an accident and younger son is aged about 8 years and the daughters, who are carrying on tailoring job needs the shop for carrying on some business to sustain her family. The suit was contested by the tenant on the ground that other co-sharers have not joined the plaint and therefore, the suit itself was not maintainable and one Javed, who is nephew of the landlady is helping the family and there is no bonafide need of the landlady in the present case and her younger son is minor and daughters are earning well from tailoring job, which they are doing from the residence. It was also pointed out that she has two other shops occupied by the other tenants and therefore, she has sufficient income. The bonafide need was found to be in favour of the landlady and it was also noticed that the facts asserted by the landlady that during pendency of the litigation the tenant has purchased one shop, which he never tried to get the shop vacated, which is occupied by his real Phupha and therefore, the tenant has alternative shop for carrying on his business, whereas the landlady has no shop for the purpose of carrying on the business. It was also found that during the pendency of the litigation the tenant did not make any effort to search out any other shop. The comparative hardship was also found in favour of the landlady and the appeal was also dismissed upholding such findings. 4. Submission of learned counsel for the petitioner is that since the other co-sharers have not joined as plaintiff, therefore, the suit was not maintainable. It was further submitted that finding of bonafide need is also incorrect inasmuch as the landlady is pardanashi and her daughters are earning well from tailoring job and since her son is still minor, who cannot carry on business and the findings regarding the other shop purchased by the tenant is also incorrect and he does not have any shop. 5. I have considered the submissions and have perused the record. 6. It is not in dispute that other two shops are in possession of the other tenants. It is also not in dispute that the daughters of the landlady are doing tailoring job from their residence only and by now her youngest son must be aged about 16 years and the rent of the shop is also only Rs. 50/-and therefore, it cannot be said that the need of the landlady is not bonafide. Such concurrent finding of facts does not require any interference. Much emphasis was given to the fact that the landlady is a pardanashi lady hence shop is not needed. In the modern days particularly landlady and her daughters are carrying on life by doing tailoring job from their residence and son is also becoming of age to assist them or do something on his own, it can be said that shop is not needed or the need is not bonafide. Insofar as the comparative hardship is concerned, there is nothing on record to indicate that the tenant ever tried to search out any alternative accommodation, whereas the suit was filed in the year 2009. 7. 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. 8. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of 9. Hindustan Petroleum Corporation Ltd. Vs. 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. 8. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of 9. 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 31.8.2018. (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. 2,000/-per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.8.2018 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.