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2017 DIGILAW 3037 (ALL)

Satya Prakash Alias Satto v. Rajendra Kumar

2017-12-22

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard Sri Pramod Kumar Jain, learned Senior Counsel assisted by Sri Abu Bakht, learned counsel for the tenants-petitioners and Sri Raj Kumar Kesari, learned counsel for the landlord-respondent and perused the record. 2. At the very outset, Sri Raj Kumar Kesari, learned counsel for the respondent stated that he does not want to file any counter affidavit and therefore, the matter was heard finally. 3. Present petition has been filed challenging the order dated 10.8.2017 passed by the lower Appellate Court in Rent Control Appeal No. 4 of 2015. 4. The release application was filed by the landlord (respondent herein) under Section 21(1)(a) of the Act No. 13 of 1972 (hereinafter referred to as the 'Act') for release of three shops in possession of three defendants, which was rejected by the trial Court. The appeal filed by the landlord was allowed and all the three shops in possession of the defendants were released in favour of the landlord. 5. Facts, in brief, of the present case are that the plaintiff is the landlord of the building no. 190/190(1) Mohalla Arya Nagar, Delhi Road, District Ghaziabad (now District Hapur). The release application was filed by the landlord on the ground that on the first and second floor of the building, he has residential accommodation for use of his own family and on the ground floor in shop no. 3, the defendant no. 1-Satya Prakash is a tenant on monthly rent of Rs. 750/- per month, the shop no. 4 is under tenancy of defendant no. 2-Suresh Chand Tyagi at the rate of Rs. 335/-per month and shop no. 7 is in possession of the defendant no. 3-Dinesh Kumar at the rate of Rs. 315/- per month. The shops no. 5 and 6 are in the possession of the landlord whereon the landlord is carrying on a general store. The entire property was shown by means of three maps whereby the position on the ground floor, first floor and second floor was displayed. On the first floor, a beauty parlour is being run by Vikas (son of the landlord). 5 and 6 are in the possession of the landlord whereon the landlord is carrying on a general store. The entire property was shown by means of three maps whereby the position on the ground floor, first floor and second floor was displayed. On the first floor, a beauty parlour is being run by Vikas (son of the landlord). It was asserted that Vikas has done beautician course from Delhi and since the shop is not vacant on the ground floor, therefore, he has been forced to carry on his beauty parlour on the first floor whereon there exists one room and a lobby and that the lobby is being used as waiting area. On the second floor there exists one room, one lobby, one kitchen, one toilet wherein one room is being used by his son as bedroom and the lobby is being used by the landlord and his wife as room and the family consists of the landlord himself, his wife, son, daughter-in-law and one unmarried daughter Km. Khushi Mittal @ Khushbu, who is aged about 16 years and lives with the landlord. It was alleged that the wife of the landlord suffered from gout (gathiya) and she has been advised not to climb the stairs. The total area of the building is around 38.94 sq. meters and on the first and second floor the stair case is very inconvenient for use and that privacy of the ladies coming to the beauty parlour face extreme difficulty and in the beauty parlour his son is not able to run his shop properly and that the family members are also finding it difficult to carry on life in the available residential area, which is very small. It was, therefore, asserted that the shops in question on the ground floor are required for shifting the beauty parlour to the ground floor wherein proper facilities may be provided to the customers and the first and second floor would be used as a residential area. Regarding the defendants, it was asserted that the defendant no. 1 is having its own business of motor garage in the name of National Motors at Surya Vihar, Hapur and he does not need the shop, which is usually lying closed. The defendant no. 2 is having business of motors part and mobil-oil and he too has alternative accommodation of his own available nearby and the defendant no. 1 is having its own business of motor garage in the name of National Motors at Surya Vihar, Hapur and he does not need the shop, which is usually lying closed. The defendant no. 2 is having business of motors part and mobil-oil and he too has alternative accommodation of his own available nearby and the defendant no. 3 is running a general merchandise shop of a very small scale. 6. The suit was contested by the defendant no. 1 by asserting that Km. Khushi Mittal @ Khushbu is not the daughter of the landlord and in fact she is daughter of landlord's brother-in-law and therefore, is not included in the family of the landlord. It was next asserted that the need was not bona fide as on the two shops the landlord and his son are running business on ground floor and they are earning handsome amount per month. It was further asserted that there is no difficulty in carrying on beauty parlour business on the first floor and that in fact the space on the first floor is more than the space that may be available after release of all the three shops on the ground floor and that proper residential accommodation is available on the second floor. It was asserted that since the defendant no. 1 is involved in motor garage profession, therefore, shop of defendant no. 2 whereon he is doing business of motor parts and mobil-oil, is running because of his motor garage. It was also asserted that there are 18 family members of the defendant no. 1 and therefore, his need is greater than the landlord. The defendants no. 2 and 3 have filed their written statement and put forth the same defence as taken by the defendant no. 1. It was further asserted that it is because of the business of the defendant no. 1, the business of the defendants no. 2 and 3 is running and they have also a large number of family members to support. 7. Various documents and evidence were filed before the trial Court. The trial Court framed three issues. Issue No. 1 regarding the relationship of tenant-landlord was decided in affirmative. Issue No. 2 whether the need of Vikas (son of the landlord) is bona fide in nature or not was decided by the trial Court against the landlord holding that the need is not bona fide. The trial Court framed three issues. Issue No. 1 regarding the relationship of tenant-landlord was decided in affirmative. Issue No. 2 whether the need of Vikas (son of the landlord) is bona fide in nature or not was decided by the trial Court against the landlord holding that the need is not bona fide. Issue No. 3 regarding comparative hardship, in the facts and circumstances of the case and for the reason that the issue of bona fide need was decided against the landlord by the trial Court too was decided against the landlord. In appeal filed by the landlord, findings of the trial Court were reversed on these two issue and both issues regarding bona fide need and comparative hardship were decided in favour of the landlord. 8. Submission of Sri Pramod Kumar Jain, learned Senior Counsel appearing for the tenants-petitioners is that the need of the landlord is not bona fide as sufficient residential accommodation is available to the landlord as he has purchased a property during the pendency of the litigation and as such, in any case the need of the landlord is satisfied, therefore, the same has wrongly been decided by the lower appellate Court. He has drawn attention of this Court to the map of the property in dispute. Attention was also drawn to the sale deed of the residential house purchased by the landlord in the year 2005. Attention was also drawn to Rule 16 of the Rules framed under the Act to submit that the same have not been followed by the Court below. It was submitted that once it is proved that the alternative accommodation is available to the landlord and he has shifted to the new accommodation, more accommodation would be available to the son of the landlord for carrying on business of beauty parlour on the first floor and second floor of the building and it has, in any case, satisfied the need, if any, of the landlord. Advancing the arguments, it was submitted that the space on the first floor is much more than the space that may be available to the landlord on the ground floor. It was lastly submitted that the question of part release was not considered by the Court below and, in any view of the matter the law is settled that this question may still be considered by this Court. 9. It was lastly submitted that the question of part release was not considered by the Court below and, in any view of the matter the law is settled that this question may still be considered by this Court. 9. In support of his submissions, learned counsel for the petitioners has placed reliance on the judgments of Hon'ble Apex Court rendered in the cases of Smt. Raj Rani Mehratra vs. IInd Addl. District Judge and others, 1980 ARC 311 and Ramesh Chandra Keshwarwani vs. Dwarika Prasad and another, 2002 (2) ARC 298 and judgments of this Court rendered in the cases of Satish Chand Tyagi vs. Rajendra Kumar Sharma, 2006 (4) ARC 589 and Pratap Narain Tandon vs. Abdul Mukatadir, 2005 (1) ARC 555 . 10. Per contra, Sri Raj Kumar Kesari, learned counsel appearing for the landlord-respondent submits that the release application was not filed solely for residential purpose but the same was also filed for expansion of business of his son Vikas and therefore, although it is categorically denied that alternative residential accommodation is available to the landlord, even assuming that some residential property has been purchased by the landlord, the same does not satisfied the bona fide need of his son Vikas for shifting or for expansion of his beauty parlour business, which he wants to shift to the ground floor so that more space and proper facility is available to the customers. Attention was drawn to the affidavit filed by the landlord to the effect that the property purchased by him is in residential area and cannot be used for commercial purpose and the certificate of the Co-operative Societies was also placed on record that it cannot be used for commercial purpose. It was submitted that property has one hall room and one latrine and the rest is open, which cannot be used for residential purpose either. It was also submitted that during long period of occupation and after filing of the release application, there is nothing on record to show that any effort was made by the tenants to search out their alternative accommodation and therefore, the issue of comparative hardship is against the tenants. It was also submitted that during long period of occupation and after filing of the release application, there is nothing on record to show that any effort was made by the tenants to search out their alternative accommodation and therefore, the issue of comparative hardship is against the tenants. It was submitted that it is the discretion of the landlord to use his property in his own way as he desires and in the present case it is not in dispute that his son Vikas and his wife both are expert beauticians and have obtained degree from reputed institute and Chanchal, wife of his son has also obtained degree from London and for this purpose, certificate and copies of Viza and passport etc. were also filed to prove that wife of his son has done the course from London. Submission, therefore, is that the need is bona fide for residential as well as for business shifting and expansion purposes, the space at the ground floor is required. It was also pointed out that by renovating little open space on the fist floor in front of balcony (chhajja), it cannot be said that sufficient space is available to the landlord. It was also submitted that the defendant no. 1 has his own business in the name and style of National Motors at Surya Vihar, Hapur whereon he is carrying on his business and therefore, defendant no. 1 has admitted that when he is no able to repair any vehicle quickly in his shop, then the vehicle is sent to the garage at Surya Vihar, Hapur, which is run by his brother and son. It was pointed out that defendants no. 2 and 3 claims that their business is running because of the shop of defendant no. 1. The defendant no. 2 is having a shop of motor parts and mobil-oil and he has a property at a distance of about 200 yards where he has own shop and godown and the total area of that property is 140 square yards. Submission, therefore, is that the defendant no. 2 has also sufficient place to shift his business. Regarding the defendant no. 3, it was stated that nothing has come on record that he has made any effort to search out any alternative accommodation for the last 11 years of litigation. Submission, therefore, is that the defendant no. 2 has also sufficient place to shift his business. Regarding the defendant no. 3, it was stated that nothing has come on record that he has made any effort to search out any alternative accommodation for the last 11 years of litigation. Submission, therefore, is that no interference is warranted in the findings recorded by the lower appellate Court. In support of his arguments, learned counsel for the respondent has placed reliance on a judgment of Hon'ble Apex Court rendered in the case of Bhupinder Singh Bawa vs. Asha Devi, (2016) 10 SCC 209 as well as judgment of this Court in the case of Suresh Chand Sharma vs. Nand Kumar Kamal, 2013 (3) ADJ 484 . 11. I have considered the rival submissions and perused the record. 12. From perusal of the record, I find that voluminous evidence was given by both the sides in the present case and was appreciated by the Courts below. The question is that as to whether the appellate Court has rightly appreciated the evidence and as to whether the findings recorded by the lower appellate court are so perverse so as to attract interference by this Court. The lower appellate Court is the Court of fact and law and has, therefore, appreciated every piece of evidence in detail. The findings given by the trial Court were specifically revered by the lower appellate Court. 13. It is not in dispute Km. Khushi Mittal @ Khushbu, who is living with the landlord, is the daughter of brother-in-law of the landlord, however he has asserted that he has adopted her and even in the school the name of landlord and his wife is written as parents of Km. Khushi Mittal @ Khushbu. It is not in dispute that wife of his son Chanchal has done the course of beautician treatment and advance make-up from Delhi and has also obtained the certificate of training from London and both of them are expert beauticians. Khushi Mittal @ Khushbu. It is not in dispute that wife of his son Chanchal has done the course of beautician treatment and advance make-up from Delhi and has also obtained the certificate of training from London and both of them are expert beauticians. There is no dispute about the fact that they have employed few persons and are carrying on their beauty parlour business on the first floor, however, the accommodation, as noticed above, is a small place to carry on this business and as already noticed, on the first and second floor the residential accommodation for five persons is much less, which consists only one room, one lobby, kitchen and toilet, out of which lobby is being used by the landlord and his wife along with his alleged adopted daughter as bedroom. It has been disputed that Km. Khushi Mittal @ Khushbu is not the family member of the landlord, however, the record reflects that she is living with the landlord. 14. Much emphasis has been given on the space available on the first floor for carrying this beauty parlour business and it has been asserted that most of the beauty parlours in the city are being run on the first and second floor and therefore, the same can be easily carried on as is now being carried on by the son and daughter-in-law of the landlord. There is no doubt about the fact that renovation had taken place during the pendency of the litigation but this alone by itself cannot dislodge the claim of the landlord for need of space on the first floor. The landlord has specifically described the property available on the ground, first and second floor, therefore, renovation by itself would not affect the bona fide need of the landlord. On the contrary, renovation reflects that business of beauty parlour is running well and the need of the landlord for the ground floor appears to be more bona fide. It is settled law that in this regard the tenant cannot guide the landlord as to how and on which place he should run his business. It is the discretion of the landlord. 15. It is settled law that in this regard the tenant cannot guide the landlord as to how and on which place he should run his business. It is the discretion of the landlord. 15. Insofar as the property purchased by the landlord in Awas Nav Jyoti Sahkari Samiti, Hapur for residential purpose is concerned, it has come on record that there is no permission to use that property for commercial purpose and as such, the same cannot be used for shifting the beauty parlour business. It was also pointed out that another residential accommodation stated to be in possession of the landlord was disputed by the landlord and documentary evidence was produced by him that the owner of the said property is the mother-in-law of his son Vikas and the landlord has no connection with the said property. Against the same, no evidence was given by the defendants. 16. The bona fide need of the landlord was considered from another angle by the appellate court by framing issue as to whether the son of the landlord is competent to run the beauty parlour shop on the ground floor and as to whether the space available on the first floor for running beauty parlour as well as the residential accommodation available is sufficient or not. It was found that son Vikas and his daughter-in-law Chanchal are expert beauticians and have also employed 3-4 ladies for this purpose. No evidence to the contrary was given by the defendants. The space available to the landlord and space available on the ground floor was specifically considered by going into each and every detail of the same by the appellate Court and every evidence in the shape of affidavits was also considered and by considering the question as to whether by raising construction over balcony (chhajja) one room is now available to the landlord, it was found that nothing has come on record that substantial space is increased so as to fulfill the bona fide need of the landlord. The allegations regarding residential accommodation on the first floor was specifically considered and it was found that the defendants have failed to prove their assertions that on the first floor the landlord has three rooms, two store and on the second floor he has three rooms, kitchen and store by giving any evidence except accepting the aforesaid facts. The allegations regarding residential accommodation on the first floor was specifically considered and it was found that the defendants have failed to prove their assertions that on the first floor the landlord has three rooms, two store and on the second floor he has three rooms, kitchen and store by giving any evidence except accepting the aforesaid facts. It was found that there is nothing to prove that two rooms are available for residential purpose on the first floor and beauty parlour is being run only in one room and it was also found that on the first floor beauty parlour is being run and the landlord has residential accommodation only on second floor in the shape of room, kitchen, lobby and toilet, which cannot be said to be sufficient for residential purpose of five persons. Km. Khushi Mittal @ Khushbu may not be the family member but it has been established that she is permanently living with the landlord and in school the name of the landlord and his wife is shown to be her parents. 17. Under such circumstances, the findings recorded by the lower appellate Court on the strength of judgments relied on by the lower appellate Court, I do not find any illegality in the findings recorded by the lower appellate Court regarding bona fide need of the landlord whereby it has been held that although on the ground floor the landlord himself is running two shops available but the need of his son is bona fide and after the beauty parlour shop is shifted to ground floor, the first floor can be used by the landlord for residential purpose. The personal problem of wife of the landlord will have also some respite. On the comparative hardship, admitted fact is that the defendant no. 1 is having its own business and running a motor garage in the name of National Motors at Surya Motors, Hapur, which he constantly used. Insofar as the defendant no. 2 is concerned, it is also not in dispute that defendant no. 2 is having own property at a distance of 200 yards wherein he has one shop and godown apart from other accommodation, therefore, he also has alternative accommodation. So far as the defendant no. 3 is concerned, he runs a very small general merchandise shop and therefore, question of goodwill would not arise in the present case. 2 is having own property at a distance of 200 yards wherein he has one shop and godown apart from other accommodation, therefore, he also has alternative accommodation. So far as the defendant no. 3 is concerned, he runs a very small general merchandise shop and therefore, question of goodwill would not arise in the present case. Apart from that nothing has come on record that defendants have made any effort so as to search out any alternative accommodation throughout 11 years of the pendency of litigation. 18. Insofar as the question of part release is concerned, there is no quarrel that law is settled that even this Court can consider the question of part release, however, in the facts and circumstances of the case as discussed above and in view of the fact that the release of the shops in question is being sought on the ground that the first and second floor of the building in question are not sufficient for the purpose of beauty parlour business as well as residential accommodation and the need of proper residential accommodation can be satisfied only on shifting of beauty parlour business on the ground floor, therefore, the need is overall need of the landlord and as such, he requires more space for both the purposes. Apart from that, it is not in dispute that total area of the property in dispute is 38.94 sq. meter and therefore, the area itself is not so big so as to tilt the question of part release in favour of the tenants-petitioners. The need so set up on the basis of all the three shops is required to satisfy the bona fide need. As such, I do not find it to be a fit case for part release insofar as the prayer for part release is concerned. 19. In such view of the matter, the findings recorded by the lower appellate Court are finding of fact, which is not perverse in nature and requires no interference by this Court. 20. Present petition lacks merit and is accordingly dismissed. 21. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the tenant-petitioners before the Court below, it is provided that: (1) The tenant-petitioners shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.6.2018. 20. Present petition lacks merit and is accordingly dismissed. 21. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the tenant-petitioners before the Court below, it is provided that: (1) The tenant-petitioners shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.6.2018. (2) The tenant-petitioners 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-petitioners 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-petitioners shall pay damages @ Rs. 1500/-(petitioner no. 1), Rs. 700/-(petitioner no. 2) and Rs. 700/- (petitioner no. 3) per month by 07th day of every succeeding month directly to the landlord, for which the landlord may supply his bank account details to the tenant-petitioners. If the landlord refuses to accept the same, they shall continue to deposit the same in the Court below till 30.6.2018 or till the date they vacate the premises, whichever is earlier and the landlord shall be at liberty to withdraw the said amount; (5) In the undertaking the tenant-petitioners shall also state that they 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-petitioners 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 petitioners, they shall also be liable for contempt.