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2017 DIGILAW 2778 (ALL)

Krishna Swaroop v. Krishan Mohan

2017-11-30

VIVEK KUMAR BIRLA

body2017
JUDGMENT : Vivek Kumar Birla, J. Heard Sri Rajiv Gupta, learned counsel along with Sri Rahul Pandey, learned counsel for the petitioner and perused the record. 2. Present petition has been preferred challenging the order dated 15.11.2017 passed by the Prescribed Authority/Civil Judge (Senior Division), Ghaziabad passed in P.A. Case No. 2 of 2016 (Krishna Mohan v. Krishna Swaroop). 3. Undisputed facts of the present case are that the petitioner is tenant of two shops owned by the landlord (respondent herein) on a consolidated rent of Rs. 300 per month. Initially two different suits were filed for rent and eviction in respect of two shops. Both the suits were consolidated and were decided finally in the year 1995 wherein it was observed that both the shops were on the rent of Rs. 300/- per month. Against the same, the landlord filed two revisions, which were consolidated and dismissed by the lower revisional Court. Thereafter the same were challenged by filing two petitions being Writ Petitions No. 39786 and 39787 of 1996 before this Court in the year 1996. Ultimately in the year 2012 both the petitions were dismissed in default. During the pendency of the said petitions, the landlord filed a release application under Section 21 (1)(a) of the Act 13 of 1972 (hereinafter referred to as the 'Act') for release of one shop for the need of his son. An application under section 11 CPC was filed by the tenant for staying the release proceedings, which was rejected by the trial Court. Thereafter a writ petition being Writ Petition No. 50649 of 2003 was filed by the tenant, which was dismissed with the observations that the findings recorded by the Courts below will operate as res-judicata. The release application filed by the landlord was allowed on 13.8.2004. The appeal filed by the tenant was subsequently allowed vide judgment and order dated 9.5.2008. Thereafter the writ petition being Writ Petition no. 40606 of 2008 filed by the landlord was allowed by this Court vide judgment and order dated 16.12.2015 and the release application was allowed. A review application filed by the tenant-petitioner in the writ petition on the ground that the tenancy cannot be bifurcated in the proceedings under Section 21(1)(a) of the Act was rejected vide order dated 15.7.2016. 40606 of 2008 filed by the landlord was allowed by this Court vide judgment and order dated 16.12.2015 and the release application was allowed. A review application filed by the tenant-petitioner in the writ petition on the ground that the tenancy cannot be bifurcated in the proceedings under Section 21(1)(a) of the Act was rejected vide order dated 15.7.2016. Thereafter the petitioner filed a SLP before Hon'ble Apex Court being SLP No. 14977 of 2016, which was dismissed vide order dated 16.8.2016, however three months time was granted to vacate the premises subject to filing of a usual undertaking in the registry within four weeks from the date of the order i.e. 16.8.2016. 4. It is not in dispute that the undertaking was not given by the tenant-petitioner. In the meantime, the landlord filed an application under Section 23 of the Act on 1.4.2016 wherein the petitioner filed his objections to the effect that the findings recorded in JSCC suit was liable to operate as res-judicata. Subsequently the petitioner filed another application dated 21.10.2016 under Order 46, Rule 1 CPC stating therein that there is contradiction in the order dated 18.12.2003 and hence a reference be sent to the High Court for clarification. The prescribed authority by the impugned order dated 15.11.2017 rejected the objections filed by the tenant and has allowed the application filed by the landlord under Section 23 of the Act. 5. Submission of the learned counsel for the petitioner is that the executing Court was under obligation to specify as to which shop is to be released in favour of the landlord and that the findings in JSCC suit is to operate as res-judicata, therefore, the impugned order is liable to be quashed. 6. I have considered the submissions and perused the record. 7. On perusal of the judgment and order of the trial Court dated 13.8.2004 I find that it has been clearly mentioned that there is bona fide need of shop no. 2 measuring 5 fit X 11.5 fit, which is required for the son of landlord Mr. Tushar Gaurav. Details of other shop including the shop no. 5, which too is in possession of the tenant has been specifically given. The operative portion of the judgment clearly mentions shop number and the size. 2 measuring 5 fit X 11.5 fit, which is required for the son of landlord Mr. Tushar Gaurav. Details of other shop including the shop no. 5, which too is in possession of the tenant has been specifically given. The operative portion of the judgment clearly mentions shop number and the size. The operative portion of the said judgment and order dated 13.8.2004 is quoted as under:- ^^izkFkhZ dk izkFkZuki= Lohdkj fd;k tkrk gSA foi{kh fookfnr nqdku la[;k 330 u;k uEcj 557 lkbZt 5 fQV x 11-5 fQV mRrjh eq[kh dks ,d ekg ds vUnj [kkyh djds mldk dCtk n[ky izkFkhZ dks ns ns vU;Fkk iqfyl }kjk dCtk fnyk;k tk;sxkA izkFkhZ dks okn O;; Hkh fnyk;k tk;sA izkFkhZ vU; fdlh vuqrks"k dks izkIr djus dk vf/kdkjh ugha gSA** 8. It would be relevant to note three paragraphs of the judgment and order dated 16.12.2015 passed by this Court in Writ Petition No. 40606 of 2008, which also specifies the shop in dispute. The same are quoted as under: "By means of the present writ petition, the order of the Appellate Court below in rejecting the release application is under challenge. The release application has been filed for the need of the landlord and his son. It is categorically stated in paragraph no. 2 of the release application that there exist 5 shops on the ground floor of the premises in question out of which two shops namely shop no. 2 and shop no. 5 are in the tenancy of the respondent (Krishna Swaroop). Initially shop no. 2 was given on rent but later on shop no. 5 was also leased out to the respondent. With the passage of time, the petitioner's sons have grown up and his third son Tushar Gaurav wanted to start his business in the shop in question the prayer was made to release one shop of smaller area of 5'x 11.5' shop no. 2 in the tenancy of the respondent. Another shop no. 5 measuring 7'x 10.5' will still be under his tenancy. There is no dispute about the area of two shops. The release application was allowed by the Prescribed Authority with the finding that the petitioner needed the shop in dispute namely shop no. 2 for his son Tushar Gaurav. 2 in the tenancy of the respondent. Another shop no. 5 measuring 7'x 10.5' will still be under his tenancy. There is no dispute about the area of two shops. The release application was allowed by the Prescribed Authority with the finding that the petitioner needed the shop in dispute namely shop no. 2 for his son Tushar Gaurav. The contention of the respondent that the petitioner's son was doing accountancy work was repelled and it is recorded by the Court below that the respondent has not been able to establish that the son of the landlord was engaged in any business." 9. It would be very pertinent to note the order dated 15.7.2016 passed by this Court on review application filed by the petitioner taking specific grounds that two shops have been given on rent to the tenant and it was common tenancy on a consolidated rent at the rate of Rs. 300/-. The said application was rejected. The order dated 15.7.2016 is quoted as under:- "Heard Sri Virendra Kumar Jaiswal, learned counsel for the review-applicant and Sri Shubham Agarwal, holding brief of Sri Pankaj Agarwal, learned counsel for the respondent. The review application has been filed on the ground that the two shops have been given on rent to the respondent-tenant and it was one common tenancy at the consolidated rent of Rs. 300/- p.m. The release application was filed under Section 21(1) (a) of the U.P. Act No. 13 of 1972 with respect to one shop measuring 5 ft. x 11.5 ft. The release application with respect to one shop (Shop No. 2) was allowed by the Prescribed Authority on the ground that the landlord needed the said shop to establish his son. The submission is that the tenancy cannot be splited and bifurcated in proceeding initiated under Section 21(1)(a) of the U.P. Act No. 13 of 1972 and the Court below as well as this Court had erred in not taking into consideration this aspect of the matter. The release order passed by the Prescribed Authority was wrongly affirmed by this Court. Admittedly, the point which is being raised by means of the present review application was not raised nor has been taken note of by the two courts below nor was raised in the writ petition. The release order passed by the Prescribed Authority was wrongly affirmed by this Court. Admittedly, the point which is being raised by means of the present review application was not raised nor has been taken note of by the two courts below nor was raised in the writ petition. It was not argued by the learned counsel for the respondent-applicant at the time of hearing of the writ petition. This plea has been taken in the review application for the first time. This means that in the garb of review, the applicant is seeking rehearing in the matter which is not permissible in view of the strict principles enshrined in Order-47 Rule 1 C.P.C. Moreover, records do indicate that two shops were given on rent to the applicant-respondent by the landlord at two different point of time and as such the contention of the applicant who was in tenancy of the two separate shops that it was one tenancy and, therefore, the release for one shop was not maintainable is absolutely incorrect. The review application is misconceived. Dismissed as such." 10. The order passed by the Hon'ble Apex Court in SLP No. 14977 of 2016 dated 16.8.2016 is also quoted as under: "Delay condoned. The special leave petition is dismissed. However, three months' time is granted to the petitioner to vacate the premises subject to filing of a usual undertaking in the Registry within a period of four weeks from today." 11. It would also be pertinent to note that in the aforesaid SLP, apart from the judgment passed on main petition the order rejecting review application was also under challenge. All such facts and all these objections that are being taken before this Court were taken note of by the executing court and application filed by the landlord under Section 23 of the Act has been allowed by the impugned order. Further, it may also be noticed that specific ground taken under Order 47, Rule 1 CPC was also considered by this Court while rejecting the review application. 12. In such view of the matter, all such objections that are being taken before this Court for challenging the impugned order have also been considered by this Court and challenge to the same before the Hon'ble Apex Court also failed. 13. Under such circumstances, I do not find any legal infirmity or jurisdictional error in the order impugned herein. 14. In such view of the matter, all such objections that are being taken before this Court for challenging the impugned order have also been considered by this Court and challenge to the same before the Hon'ble Apex Court also failed. 13. Under such circumstances, I do not find any legal infirmity or jurisdictional error in the order impugned herein. 14. Present petition lacks merit and is accordingly dismissed. No order as to costs.