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2017 DIGILAW 387 (ALL)

Akhilesh Kumar Gupta v. Shanti Devi

2017-01-31

MANOJ MISRA

body2017
JUDGMENT Manoj Misra, J. -- Heard learned counsel for the petitioner and Sri B.N. Agarwal for the landlord respondent. 2. The present petition has been filed against the judgement and order dated 22.10.2016 passed by District Judge, Jalaun at Orai in Rent Appeal No. 3 of 2015 by which the appeal of the tenant petitioner against the release order dated 18.3.2015 passed by the Prescribed Authority in P.A. Case No. 2 of 2013, has been dismissed and the order of the Prescribed Authority has been upheld. The petitioner has also challenged the order dated 18.3.2015 passed by the Prescribed Authority in P.A. Case No. 2 of 2013. 3. A perusal of the record would go to show that the release application under section 21(1)(a) of the U.P. Act No. 13 of 1972 was filed by the landlord respondent for release of a shop of which the petitioner was claimed to be a tenant. According to the landlord, the shop in dispute was required for employment of landlord's second son, namely Madan Mohan Tiwari, who was stated to be an unemployed graduate. The shop in dispute was sought for setting up book shop. The release application was contested by alleging that the landlord is a moneyed person and that the second son of the landlord was having income from agency of post office and therefore shop in question was not required. It was also suggested that there was another alternative accommodation available with the landlord at another place. The petitioner also claimed that he had no settled employment and therefore shop in question was used as a clinic as well as a medical store which was being run by his wife as Pooja Medical Store. 4. The Prescribed Authority found that the second son of the landlord did not have any settled employment and that from the tax return certificate, the income shown from agency was meagre not sufficient to hold that the landlord's son was gainfully employed. It was found that the other accommodation which was suggested was not suitable because it was in an area where it was difficult to run book shop whereas the accommodation in question was suitable for book shop purpose. It was found that the other accommodation which was suggested was not suitable because it was in an area where it was difficult to run book shop whereas the accommodation in question was suitable for book shop purpose. On question of comparative hardship, the court below found that the tenant was working on contract basis under the NRHM Scheme and otherwise also he had a house at Mohalla Gopalganj, near which, several doctors were residing and therefore the clinic business could also be run from that house. Moreover, the tenant had not disclosed that after filing of the release application, he had made efforts to search for alternative accommodation therefore the issue of comparative hardship was also decided in favour of the landlord. With aforesaid findings, the release application was allowed. Against the order passed by the Prescribed Authority, the petitioner filed an appeal which has been dismissed by the impugned order. 5. Learned counsel for the petitioner has assailed the orders passed by the courts below on the ground that a specific plea was taken by the petitioner that the shop in dispute was being used for running Pooja Medical Store which was on a license given to his wife therefore his wife was a necessary party and since the release application was filed without impleading petitioner's wife, the same was liable to be dismissed. The other ground which has been taken is that the landlord's son was gainfully employed and therefore there was no bonafide need. The third ground taken is that the question of partial release of the shop was not considered in spite of tenant's statement that he was prepared to surrender a part of the shop in favour of the landlord. 6. Learned counsel for the respondent has supported the judgement passed by both the courts below and has submitted that the courts below have returned well considered findings of fact which calls for no interference. 7. I have considered the rival submissions. 8. In respect of the first contention that the release application was bad for non joinder of necessary party it is found that in paragraph 1 of the release application it was specifically stated that the landlord respondent was the owner of the shop in question and in paragraph 2 thereof, it was specifically stated that the opposite party, namely, Dr. In respect of the first contention that the release application was bad for non joinder of necessary party it is found that in paragraph 1 of the release application it was specifically stated that the landlord respondent was the owner of the shop in question and in paragraph 2 thereof, it was specifically stated that the opposite party, namely, Dr. Akhilesh Kumar Gupta (petitioner herein), was tenant at the rate of Rs. 350/- per month with additional liability to pay water tax. Both paragraphs 1 and 2 of the release application were admitted in the written statement filed by the petitioner, which is at page 106 of the paper book. Even otherwise there is no specific plea in the written statement that the release application was bad on account of non joinder of necessary party. Under the circumstances, the first contention raised by the petitioner deserves to be rejected. 9. In so far as the second contention that the bonafide need was not established is concerned, suffice to say that both the courts below have found that the affidavits filed disclosed that the landlord's second son was not having any gainful employment and that the income which he received from post office agency was a meagre amount. Learned counsel for the petitioner has not been able to demonstrate that as to how this finding was perverse and against the law. Accordingly, the second submission of the petitioner also does not deserve acceptance and is accordingly rejected. 10. In so far as the third ground of attack is concerned, which relates to partial release of the accommodation in question, the court below has dealt that aspect in detail and found that tenant neither filed any map nor any drawing to show that the disputed shop could be divided in two parts which may enable the landlord as well as the tenant carry out their respective businesses. Accordingly, the court below rejected the plea of partial release. 11. Learned counsel for the petitioner has not assailed the correctness of the observations that the map and the drawing of the shop in question was not brought on record before the court below. In fact, in paragraphs 24 and 25 of the petition, it has been alleged that there can be division of the shop because the shop is having frontage of 9 feet and depth of 18 feet. 12. In fact, in paragraphs 24 and 25 of the petition, it has been alleged that there can be division of the shop because the shop is having frontage of 9 feet and depth of 18 feet. 12. This Court finds that if frontage of the shop is 9 feet and the depth is 18 feet, then dividing the shop in two parts would leave frontage of only 4 and 1/2 feet on either side making it impossible to have book shelves, etc and giving the shop shape of a tunnel thereby rendering it useless for both the persons. Accordingly, I do not find any good reason to interfere with the orders passed by the courts below on the grounds taken and urged before this Court. 13. At this stage, learned counsel for the petitioner has submitted that some time to vacate the premises may be provided to the petitioner. 14. To the said request, Sri B.N. Agarwal, learned counsel for the respondent has submitted that he has no objection if reasonable time is provided to the petitioner to vacate the premises upon taking an undertaking that he shall vacate the premises after expiry of the time so provided. 15. In view of above, the petition is disposed of by observing that no good ground has been made out for interfering with the orders passed by the courts below therefore prayer to set aside the impugned orders is rejected. However, considering the facts and circumstances of the case, it is hereby provided that the petitioner shall not be evicted from the premises in dispute till 31.5.2017 provided he submits an undertaking that he shall handover vacant and peaceful possession of the accommodation in dispute by 1.6.2017. Such undertaking shall be submitted by 15.2.2017 in the court of Prescribed Authority, Jalaun. In case, no such undertaking is filed by 15.2.2017, the orders passed by the courts below shall be executable forthwith. In case, the petitioner files an undertaking and the premises is not vacated in terms of the undertaking then, apart from having a right to execute the orders of the courts below, the landlord would also have a right to initiate contempt proceeding against the petitioner.