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2017 DIGILAW 2930 (ALL)

Brij Mohan v. Rameshwari Saxena

2017-12-14

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard Sri Saurabh Srivastava, learned counsel for the petitioner and Sri Manish Tandon, learned counsel appearing for the respondent. 2. Present writ petition has been filed seeking quashing of the order dated 23.1.2016 passed by the II-Additional Civil Judge (Senior Division) Kanpur Nagar/Prescribed Authority, Kanpur Nagar in Rent Case No. 10/2006, Smt. Rameshwari Saxena Vs. Satpal & others and judgment dated 25.7.2017 passed by the Additional District Judge, Court No. 1, Kanpur Nagar in Rent Appeal No. 22 of 2016, Braj Mohan Versus Smt. Rameshwari Saxena & others filed as Annexures 12 and 14 to the writ petition. 3. The landlady filed a release application for need of her son Adesh Saxena who is stated to be a B.Tech and is unemployed and aged about 43 years of age. The same was contested by the tenant. Ultimately, the release application was allowed and the appeal filed by the tenant was allowed and the matter was remanded back to the trial court for decision afresh on the bonafide need, comparative hardship including the question of part release as the contention of the tenant was that the shop is big in size and is measuring 20 x 30 feet and after partition the shop available to the landlady would be 10 x 30 feet. 4. On matter being remanded back four issues were framed. 5. First Issue was regarding the landlord and tenant relationship and there being no contest on the same, the same was decided in affirmative. The second Issue was regarding partition as to whether the partition of the shop would serve the purpose and can be partitioned as proposed by the tenant. The third Issue was regarding bonafide need and the fourth Issue was regarding comparative hardship. 6. On issue no. 2 the landlady has stated that the measurement of the shop is 23 x 17.5 feet and the case of the landlady was that after partition the shop the size of the front would be reduced which would not be proper for carrying on ready-made garments business on a large scale as the front would be reduced to about 8 feets. It was further contended that Kamal Krishna son of the tenant is carrying on his business in General Ganj, Kanpur and therefore, the tenant has alternative option. It was further contended that Kamal Krishna son of the tenant is carrying on his business in General Ganj, Kanpur and therefore, the tenant has alternative option. It was further stated that the landlady is a widow lady whose husband died long back and when the shop was given on rent about 50 years back her husband was alive and they did not have any children and now her son Adesh Saxena is aged about 43 years and since he is unemployed therefore, for this reason the shop is required. It was submitted that although the provisions of Rule 16 (1) (d) of the Rules framed under Act 13 of 1972 are not applicable on a commercial accommodation, still even considering the facts of the case after partition the area available to the accommodation would not be sufficient for carrying on business on a large scale which is proposed on the shop in question. 7. All these facts were disputed by the tenant by submitting that Adesh Saxena is not unemployed and the landlady and her son have shifted to Delhi where Adesh Saxena is well established in a computer business and therefore, the need is not bonafide and genuine and in any case after partition the need can be satisfied. It was further submitted that refusal to offer of part release further demonstrates that the need of the landlady is not pressing, bonafide and genuine. 8. After considering the aforesaid contention, facts and evidence on record a finding was recorded that the landlady cannot be forced in this matter by the tenant as to how the landlady is to carry on her business and therefore, the issue of part release was decided against the tenant. 9. On bonafide need considering the same facts it was found that the son of the landlady is now 48 years of age and has got married three years back after filing of the release application and he is still unemployed and therefore, the need is pressing and bonafide. The need was disputed merely on the ground that the landlady and her son Adesh Saxena are living in Delhi and for this purpose few documentary evidence in the shape of R.C., copy of adhaar card etc. were filed. The need was disputed merely on the ground that the landlady and her son Adesh Saxena are living in Delhi and for this purpose few documentary evidence in the shape of R.C., copy of adhaar card etc. were filed. In support of his living at Kanpur apart from affidavits Adesh Saxena has filed electricity connection, bank account and gas connection documents wherein the address of Kanpur was given. The assertion of the landlady was that Adesh Saxena is unemployed. Although assertion regarding his engagement in computer business in Delhi was made by the tenant, however, no evidence could be produced by the tenant regarding employment of Adesh Saxena in Delhi or that he is doing computer business. Considering all the facts it was also considered by the trial court that even assuming that at present the landlady and her son Adesh Saxena are living at Delhi it cannot be said that the need for establishing business in Kanpur is not bonafide or genuine as since he is unemployed he has every right to establish his own business on the property owned by the landlady. On comparative hardship it was found that the tenant has not made any serious effort for searching out any other shop. It is an admitted fact that one son of the tenant has a shop in General Ganj, Kanpur and is doing his business there. The trial court again allowed the release application. 10. The appeal filed against the aforesaid judgment was also dismissed. After considering the evidence on record, the appellate court has also recorded a finding that the tenant was not able to establish that Adesh Saxena is employed and is engaged in computer business in Delhi. On issue of part release it was found that ready-made garments business cannot be established in 10 feet front as for this business space is an important factor. 11. Submission of learned counsel for the petitioner is that by cogent evidence it has been established by the tenant that the landlady and her son are living in Delhi and he is doing business. Much emphasis has been placed on electricity bills to indicate that even though they may be having accommodation in Kanpur but the consumption of electricity indicates that it cannot be said that they are not living in Kanpur. Much emphasis has been placed on electricity bills to indicate that even though they may be having accommodation in Kanpur but the consumption of electricity indicates that it cannot be said that they are not living in Kanpur. It was next submitted that Adesh Saxena has done B.Tech about 25 years back and it cannot be presumed that he is still unemployed whereas the assertion is that he is gainfully employed in some computer business. Much emphasis was given on part release of the shop and it was submitted that the shop is in fact 20 x 30 feet and the partition of the same can satisfy the bonafide need of the landlady. It was also submitted that the refusal to accept the part release of the shop also indicates that in fact the need is not bonafide as the assertion is that they are not living at Kanpur. It was further submitted that the courts below have wrongly assumed the size of the shop to be 23 x 17.5 feet whereas the contention of the tenant throughout is that the area of the shop is 70 Sq. yards therefore, it was the duty of the court below to verify the correct measurement of the shop. In support of his argument, learned counsel for the petitioner has placed reliance on the judgment of this Court rendered in the case of Narendra Pal Singh Vs. Ilam Chand Sharma 2008 (3) ARC 808 and the judgment of the Uttaranchal High Court in the case of Mangat Ram and others Vs. District Judge, Pauri Garhwal and others 2006 (2) ARC 448 and the judgment of the Hon'ble Apex Court in the case of Ramesh Chandra Kesharwani Vs. Dwarika Prasad and another 2002 (2) ARC 298 to contend that the Court has power to consider the part release of the shop and that in the facts and circumstances the part release should be permitted. During the course of argument, learned counsel for the petitioner states that even if the measurement of the shop is 20 x 17.5 feet, the tenant-petitioner is willing to offer 10 feet front to the landlady so that the need of the landlady for establishing her son may be satisfied. 12. During the course of argument, learned counsel for the petitioner states that even if the measurement of the shop is 20 x 17.5 feet, the tenant-petitioner is willing to offer 10 feet front to the landlady so that the need of the landlady for establishing her son may be satisfied. 12. Per-contra, Sri Manish Tandon, learned counsel for the respondent submitted that in so far as the question of employment of Adesh Saxena is concerned except oral argument no evidence whatsoever was produced by the tenant to prove that he is employed in Delhi and that even if it is assumed that the landlady and her son are apparently living in Delhi, it cannot be said that the need of unemployed son to establish his business in the shop in dispute is not bonafide or genuine. On the question of part release it was submitted that the measurement of the shop as noticed by the trial court is 23 x 17.5 feet only and in case the half of the same is partitioned not more than 8 feet front would be available to the landlady which is not sufficient enough to establish ready-made garments business on a large scale. 13. Answering the offer given by the learned counsel for the petitioner during course of argument that the tenant is willing to offer 10 feet front it was submitted that no business can be established in the shop of having 10 feet as ready-made garments shop requires big space for display where maniquin are to be placed and large varieties of goods are to be maintained. It was also submitted that the appellate court has even considered this aspect specifically on internal page 11 of the appellate court judgment wherein 10 feet front was not considered to be good enough for establishing ready-made garments business on a good/large scale. 14. I have considered the rival submissions and have perused the record. 15. From perusal of record, I find that initially the release application was allowed by the trial court by holding that there was bonafide need and comparative hardship is also in favour of the landlady. In appeal, the issue of part release of the shop was raised by the tenant and the matter was remanded back for re-consideration of bonafide need, comparative hardship as well as question of part release. In appeal, the issue of part release of the shop was raised by the tenant and the matter was remanded back for re-consideration of bonafide need, comparative hardship as well as question of part release. It is only after remand the trial court framed one additional issue regarding part release also. The concurrent finding of fact have been recorded on the issue of bonafide need and comparative hardship and even on remand the same were found to be fully established in favour of the landlady. The same cannot, therefore, be interfered by this Court and since the findings of fact are not perverse in nature and have been considered and reconsidered by the courts below on the basis of the documentary evidence available on record and they are not perverse in nature so as to warrant interference by this Court in so far as the question of bonafide need and comparative hardship are concerned. 16. On issue of bonafide need, it may also be noticed that even if it is assumed that at present the landlady and her son are living in Delhi it cannot be said that they do not have bonafide need and the son has no right to establish his own business on their own property available in a established market place particularly when no permanent nature of employment of Adesh Saxena could be established by the tenant to dislodge his bonafide need. Even if it is assumed that Adesh Saxena is engaged in some kind of computer business on casual basis this cannot be said to be a factor to dislodge his bonafide need to establish his own business on permanent basis. 17. Now coming to the question of part release of the shop, the tenant could not establish that the shop is 20 x 30 feet. He is the person who is in possession and he could have produced evidence to establish that the size of the shop if 20 x 30 feet. The landlady has given the measurement as 23 x 17.5 feet and in case that shop is partitioned the shop measuring 8 feet would be available to the landlady for establishing her son which according to her is not a good enough to establish any ready-made garments business which will not be having proper front which is required for establishing ready-made garments business. Even assuming that 10 feet as offered by the tenant during course of argument is available to the petitioner after part release, this fact has also been considered by the lower appellate court whereon, in view of the nature of business that is proposed to be carried on in the shop it was found that 10 feet front itself cannot be sufficient to establish a good show-room for ready-made garments business. It is nobody's case that the landlady is not financially sound to establish good showroom for having large scale ready-made garments business as is being proposed in the shop. 18. In so far as the contention of learned counsel for the petitioner that the area of the shop is 70 Sq. yards and therefore after partition 35 Sq. yards would be available to the landlady and her son for establishing shop of ready-made garments is concerned, assuming that the 70 Sq. yards is the total area available out of which after partition 35 Sq. yards would be available to the landlady, in view of the nature of the business of ready-made garments and the manner in which it is proposed to be established, the landlady cannot be forced to establish such business in half of the area as offered by the tenant. There is no quarrel with the rulings cited by the learned counsel for the petitioner however, facts of the each case has to be considered. On consideration of facts of the case I find that the question of part release has rightly been decided by the courts below which is based on material and evidence on record. The same requires no interference by this Court. This Court is also not inclined to interfere in the aforesaid findings. 19. This writ petition is devoid of merit and is, accordingly, dismissed. 20. 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. This writ petition is devoid of merit and is, accordingly, dismissed. 20. 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. 5,000/-per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.8.2017 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.