Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 16 (ALL)

Teekamgarh Wali Vidhwa v. Prescribed Authority

2018-01-03

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard Sri Brij Raj Singh, learned counsel for the defendants petitioners/tenants. 2. This petition under Article 226 of the Constitution of India has been filed praying for a writ, order or direction in the nature of certiorari to quash the impugned order dated 19.01.2013 in P.A. Case No. 106 of 2010 passed by the Prescribed Authority/Judge Small Cause Court, Jhansi and the judgment dated 20.09.2017 in Rent Control Appeal No. 06 of 2013, Smt. Teekamgarh Wali Vidhwa and Others v. Smt. Mithla Devi passed by the Additional District Judge, Court No. 1, Jhansi. 3. Facts in brief are that the plaintiff-respondent No. 3/landlady had purchased a House No. 133, Bahar Saiyar Gate, Jhansi by a registered sale deed dated 28.02.1978 in which husband of the defendant petitioner No. 1 and father of the defendants-petitioners No. 2 and 3, was a tenant occupying a shop situate in the front portion of the aforesaid house. According to the plaintiff-respondent No. 3/landlady, an intimation was given to the aforesaid original tenant namely Sri Balkishan Rajak regarding purchase of the house. At the time of purchase of the house, sons of the plaintiff-respondent No. 3/landlady were minor. Now they have attained majority. The second son of the plaintiff-respondent No. 3/landlady namely Sri Chanchal @ Sudhir Sahu aged about 32 years, has been married and he has one daughter. The aforesaid P.A. Case No. 106 of 2010 was filed on the ground of bona fide need for start of business by him in the disputed shop. The plaintiff-respondent No. 3/landlady has set up a case that she is in bona fide need of the disputed shop for his son Sudhir Sahu to start his own business. It was pleaded that the petitioners/tenants have their own shop near Kalari at Bahar Saiyar Gate, Jhansi. It was also pleaded that the respondent No. 3/landlady is ready to pay two years' rent also to the defendants- petitioners/tenants. Evidences were led by the parties which were considered by the Prescribed Authority while passing the impugned order dated 19.01.2013. The Prescribed Authority recorded finding of fact that the plaintiff-respondent No. 3/landlady is in bona fide need of the disputed shop. He also found the comparative hardship in favour of the plaintiff-respondent No. 3/landlady. Evidences were led by the parties which were considered by the Prescribed Authority while passing the impugned order dated 19.01.2013. The Prescribed Authority recorded finding of fact that the plaintiff-respondent No. 3/landlady is in bona fide need of the disputed shop. He also found the comparative hardship in favour of the plaintiff-respondent No. 3/landlady. Aggrieved with the aforesaid order of the Prescribed Authority dated 19.01.2013, the defendants petitioners/tenants filed Rent Control Appeal No. 06 of 2013, which has been dismissed by the impugned order dated 20.09.2017. The Appellate Court considered in detail the submissions and the evidences as well as findings recorded by the Prescribed Authority, and, found no error therein. Aggrieved with the aforesaid two judgments and orders, the defendants-petitioners/tenants have filed the present writ petition under Article 226 of the Constitution of India. 4. Submission of the learned counsel for the petitioners is that husband of the plaintiff-respondent No. 3/landlady is aged about 71 years who is running his business in a shop and therefore, it cannot be said that there is any bona fide need of the disputed shop for the second son namely Sri Chanchal @ Sudhir Sahu. He submits that the aforesaid Sri Chanchal is doing a private job and thus, it cannot be said that he is unemployed. He, therefore, submits that both the impugned judgments are legally unsustainable inasmuch as the plaintiff-respondent No. 3/landlady has failed to establish her bona fide need for the disputed shop. 5. I have carefully considered the submissions of the learned counsel for defendants- petitioners/tenants and perused the record before me. 6. There is no dispute with respect to landlord and tenant relationship between the plaintiff- respondent No. 3/landlady and the tenants petitioners. There is also no dispute that the son of the plaintiff respondent No. 3/landlady, namely Sri Chanchal @ Sudhir Sahu is doing a petty private job, who is married and has one daughter as on the date when the Prescribed Authority decided the release application. Under the circumstances, I do find any error in the findings of fact recorded by the Prescribed Authority as well as by the Appellate Court that the plaintiff-respondent No. 3/landlady is in bona fide need of the disputed shop to enable her son to start business in the disputed shop. 7. Under the circumstances, I do find any error in the findings of fact recorded by the Prescribed Authority as well as by the Appellate Court that the plaintiff-respondent No. 3/landlady is in bona fide need of the disputed shop to enable her son to start business in the disputed shop. 7. While deciding the issue No. 3, the Prescribed Authority noted the averments of affidavit of the plaintiff-respondent No. 3/landlady being paper No. 12-A-2 and 13-A-2 and the evidence of the witness Mahesh being affidavit paper No. 15-A-2 in which it has been stated that the defendants-petitioners/tenants have two houses being House No. 592 and House No. 500 Bahar Saiyar Gate, Jhansi and in House No. 500, there are two shops in which the defendants-petitioners are carrying on business. The contents of the aforesaid affidavit have been replied by the defendant Sri Ashok vide affidavit being paper No. 33-A-1 in which it has been stated that House No. 500, Bahar Saiyar Gate, Jhansi is completely a residential house and there is no shop in the said house. Thus it is admitted to the defendants petitioners that they possess two houses. 8. On the facts as briefly noted above, the findings recorded by the Prescribed Authority and the Appellate Court regarding bona fide need of the plaintiff-respondent No. 3/ landlady and comparative hardship to be in her favour, cannot be said to suffer from any error of law. The findings recorded in the impugned judgments are findings of fact based on consideration of evidences and relevant material on record. Under the circumstances, these findings cannot be interfered with in writ jurisdiction under Article 226 of the Constitution of India. 9. In view of the aforesaid, I do find any merit in this writ petition. Consequently, the writ petition fails and is hereby dismissed. 10. After this order was dictated in the open Court, learned counsel for the defendants- petitioners/tenants states on the basis of instructions that the defendants-petitioners/tenants undertake to vacate the disputed shop on or before 30.04.2018 and therefore, till then they may be dispossessed. It is further stated that on or before 30.04.2018, the defendants- petitioners/tenants shall handover vacant and peaceful possession of the disputed to the plaintiff-respondent No. 3/landlady. 11. Learned counsel for the respondent-plaintiff/landlady opposes the aforesaid request. 12. It is further stated that on or before 30.04.2018, the defendants- petitioners/tenants shall handover vacant and peaceful possession of the disputed to the plaintiff-respondent No. 3/landlady. 11. Learned counsel for the respondent-plaintiff/landlady opposes the aforesaid request. 12. Considering the undertaking of the defendants-petitioners/tenants before this court as afore-noted, it is provided that the defendants-petitioners/tenants shall submit an undertaking to the aforesaid effect before the concerned court below/Prescribed Authority within three weeks from today along with a certified copy of this order and thereupon for a period till 30.04.2018 he shall not be dispossessed. On or before 30.04.2018, he shall vacate the disputed shop and handover its vacant and peaceful possession to the plaintiff respondent No. 3/landlady. In case of failure to submit the undertaking or to vacate and handover peaceful and vacant possession of the disputed shop as aforesaid, the plaintiff- respondent No. 3/landlady shall be entitled to take all steps for dispossession of the defendants petitioners/tenants from the disputed shop and also to initiate proceedings for contempt. 13. For occupying the disputed shop, for a period till 30.04.2018, the defendants- petitioners/tenants shall pay a sum of Rs. 1500/- per month on the last day of the every month till 30.04.2018. In case of nonpayment of the amount as aforesaid, the protection as provided above shall automatically stand vacated. 14. The writ petition is dismissed subject to the observations made above.