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2018 DIGILAW 1453 (ALL)

Dev Asre Shukla v. Ram Lakhan Singh (Dead)

2018-07-02

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. 1. Supplementary affidavit filed today is taken on record. 2. Heard learned counsel for the petitioner and perused the record. 3. Present petition has been filed for setting aside the judgment and order dated 30.5.2016 passed by the Prescribed Authority/JSCC Court in Rent Case No. 22 of 2012, Ram Lakhan Singh vs. De Asre Shukla and also sent aside the judgment and order dated 23.5.2018 passed by the Additional District Judge, Court No. 24 in Rent Appeal No. 72 of 2016, Dev Asre Shukla vs. Ram Lakhan Singh (dead). 4. By the impugned judgment and order dated 30.5.2016, the prescribed authority has allowed the release application filed by the landlord (respondent herein) under Section 21(1)(a) of the UP Act 13 of 1972 holding that the need of the landlord is bona fide. The aforesaid judgment was upheld in appeal by the lower appellate Court. The release application was filed on the ground that the landlord has purchased the property in question being house no. 119/172 old and new house no. 119/393-A Om Nagar, Darshanpurwa, District Kanpur Nagar by registered sale deed dated 23.11.2003; the house in question is old and the rent control Act is applicable; the defendant (petitioner herein) is tenant of one room, varandah and common latrine on first floor on a monthly rent of Rs. 14.00, which includes water and sewerage taxes; the tenant is living alone and is doing private service and is not making payment of rent and is not vacating the premises. It was claimed that the landlord in his family has himself, wife, one son aged about 30 years and two daughters aged about 27 and 24 years and they have no other residential accommodation within the limits of Kanpur Nagar and landlord is living on the ground floor with two rooms, one kitchen and latrine bathroom, which is not sufficient to meet out his personal requirement. It was further pointed out that that son of the landlord has started legal practice and therefore, more space is required apart from the space required for his personal use. 5. It was further pointed out that that son of the landlord has started legal practice and therefore, more space is required apart from the space required for his personal use. 5. Earlier the landlord had filed one release application under Section 21(1)(a) of the Act 13 of 1972 on 5.2.2007 wherein pleadings were exchanged and evidence was produced but due to serious illness of the landlord, he prayed that the release application may dismissed as not pressed, which was dismissed as not pressed on 10.11.2009. After a gap of three years, this release application under Section 21(1)(a) of the Act 13 of 1972 was filed. Three issues were framed by the trial Court: (1) as to whether there is relationship of the landlord and tenant; (2) the bona fide need; and (3) regarding comparative hardship. 6. Issue no. 1 was decided on the basis of admitted position that there is a landlord-tenant relationship between the parties. Issue no. 2 was decided in favour of the landlord holding that the landlord has purchased the house after taking loan for residential purposes and is in possession of two rooms, one kitchen and latrine bathroom on the ground floor and the tenanted accommodation is required as his family is large and his son is a practising Advocate, two adult unmarried daughters are preparing for competitive examinations and landlord is a teacher and it was also found that the wife of the tenant (petitioner herein) seldom comes to the tenanted accommodation and it is not proved that the son and daughter of the tenant are residing in the tenanted premises. Issue no. 3 regarding comparative hardship was found in favour of the landlord. 7. While dismissing the appeal, finding of the trial Court was upheld and it was noticed that although earlier rent case no. 4 of 2007 was dismissed as withdrawn and that the tenant never made any effort to search out alternative accommodation and therefore, the appeal was also dismissed. 8. Submission of the learned counsel for the petitioner is that the lower appellate Court has not considered the grounds taken in the appeal and it has also not considered that family of the respondent is living Rai Bareilly and they have no need of tenanted accommodation and perverse finding has been recorded by the Courts below by misinterpreting the oral and documentary evidence. It was further submitted that the petitioner was not given any notice before filing the release application. 9. I have considered the submissions and perused the record. 10. It is not in dispute that legal notice dated 9.7.2006 was given to the petitioner and thereafter earlier rent case no. 4 of 2007 was filed against the tenant (petitioner herein). Record also reflects that both the parties have placed on record various documents and affidavits were also filed by the landlord. Both the parties have placed on record the evidence given in the earlier suit of the year 2007, which was dismissed as not pressed and therefore, the same evidence was placed before the Court below in this case also and reliance was placed on the record. Finding of fact regarding the bona fide need of the landlord was was found by the trial Court and was affirmed by the lower appellate Court. It is also not in dispute that tenant never made any efforts to search out any accommodation. It is also clear that residential accommodation was purchased by the landlord for his own need for residential purposes and this release application was filed. 11. In such view of the matter, present petition is devoid of merits and is accordingly dismissed. 12. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of 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. 13. At this stage, learned counsel for the petitioner prays that some time may be granted to vacate the premises. 14. 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 31.12.2018. 14. 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 31.12.2018. (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) Since the petitioner has already deposited the rent upto December, 2018, therefore, he need not deposit the damages. (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 premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. 14. There shall be no order as to costs.