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2018 DIGILAW 1820 (ALL)

Natthu Lal v. Gopal

2018-08-20

VIVEK KUMAR BIRLA

body2018
JUDGMENT : 1. Heard Sri P.K. Jain, learned Senior Counsel assisted by Sri Manish Tandon and Sri Manas Bhargava, learned counsel for the landlord-petitioner and Sri Jamvant Maurya, learned counsel appearing for the contesting tenants-respondents nos.1 and 4, who are stated to be in possession of the shop in dispute. 2. Present petition has been filed for quashing the order dated 23.1.2016 passed by appellate court in Rent Control Appeal No. 118 of 2012 (Natthu Lal vs. Gopal and others) as well as order dated 12.7.2012 passed by Prescribed Authority / Ivth Civil Judge, Senior Division, Varanasi in P.A. Case No. 27 of 2006. 3. Release application was filed by the landlord-petitioner herein against the tenant-respondent in the year 2006 on the ground of need of his son Kanhaiya Lal and his daughter-in-law, Meenakshi also as she also wants to do her individual business and as such the need of the family has increased. The aforesaid release application was rejected by the prescribed authority vide order dated 12.7.2012 making an observation that the son of the landlord and his daughter-in-law both are educated and can do some other business also, and therefore, the need of the landlord is not bonafide. It was further found that the shop in possession of the landlord is a very big shop and therefore, if his son wants to have a separate business he can divide the shop and can establish his business in one shop. The appeal filed by the landlord-petitioner was also dismissed by the lower appellate court. It may be relevant to note that both the courts below have taken into consideration the earlier litigation regarding release of the shops, which was rejected and the appeal against the same was also rejected and thereafter, the writ petition filed before this court was also dismissed, however, the rent was enhanced to Rs. 500/-by the Court. The said release application was filed in the year 1989. 4. To appreciate the facts correctly, it would be appropriate to take note of the previous litigation. House No. D-46/6 Manihari Tola, Luxa, Varanasi belonged to one Smt. Kutara devi, who executed registered Will deed dated 19.3.1982 in favour of present petitioner Natthu Lal and entire property came to the petitioner and his wife Radha Devi; disputed shop was taken on rent by late Salikram, father of tenant-respondent, on a rent of Rs. House No. D-46/6 Manihari Tola, Luxa, Varanasi belonged to one Smt. Kutara devi, who executed registered Will deed dated 19.3.1982 in favour of present petitioner Natthu Lal and entire property came to the petitioner and his wife Radha Devi; disputed shop was taken on rent by late Salikram, father of tenant-respondent, on a rent of Rs. 20/-per month; in the year 1983 the earstwhile owner Kutara Devi, mother of the petitioner initiated P.A. Case No. 170 of 1983 against the tenant-respondent for the said shop and sought its release. Another similar proceeding initiated i.e. P.A. Case No. 169 of 1983 by Smt. Kutara Devi against Sahdeo for another adjoining shop under Section 21(1)(a) of the Act. In the previous proceedings initiated by Kutara Devi for need of her son (petitioner herein). The said release applications were allowed on 4.3.1986 (in both the cases of 1983). At that time Kutara Devi was alive. Tenant-respondent Gopal and others filed Rent Appeal No. 98 of 1986. Tenant of adjoining shop namely Sahdeo had also filed Rent Appeal No. 97 of 1986. Both the appeals were consolidated and during pendency of the said rent appeals Kutara Devi died and in her place the petitioner was substituted; on 12.5.1989 both the rent appeal nos. 97 of 1986 and 98 of 1986 were allowed by VIIth Additional District Judge, Varanasi; the petitioner Natthu Lal filed Civil Misc. Writ Petition No. 14893 of 1989 before this Court, which was decided only on 4.7.2005. Another Writ Petition No. 14895 of 1989, which was preferred in respect of rent appeal of adjoining shop belonging to Sahdeo. Since, Sahdeo had subsequently vacated the shop, therefore, Writ Petition No. 14895 of 1989 was not pursued and accordingly the same was dismissed in default on 5.5.2005. Insofar Writ Petition No. 14893 of 1989 is concerned, looking to the subsequent development i.e. adjoining shop was vacated by Sahdeo during pendency of the petition, the need which was originally set up for the petitioner in the year 1983 was taken as satisfied to a great extent after 22 years and therefore, on 4.7.2005 the petition was dismissed, however, rent was enhanced to the tune of Rs. 500/- per month. 5. The trial court framed two issues regarding bonafide need and comparative hardship. Issue no. 500/- per month. 5. The trial court framed two issues regarding bonafide need and comparative hardship. Issue no. 1 regarding bonafide need was decided against the landlord after considering the previous litigation and by observing that the son and the daughter-in-law of the landlord are both educated and therefore, apart from running the shop they can also do some other job, therefore, the need does not appear to be bonafide and is only imaginary and since the shop in possession of the landlord was made by joining two shops, therefore, if his son wants he can carry on business in one shop. Under such circumstances, the need was not found to be bonafide. Comparative hardship was also found in favour of the tenant by holding that the tenant has no alternative commercial accommodation in his possession. 6. The appeal was also rejected after taking into account that in the previous litigation, recording a finding that Kanhaiya Lal son of the landlord is helping his father in his shop, and is practically conducting the business and therefore, he is not unemployed and only artificial need of son and daughter-in-law has been projected by the landlord. The comparative hardship was also found in favour of the tenant on the ground that although it is admitted to the tenant that some of them are doing business in some other places, but they are not doing any alternative business separately and therefore, the comparative hardship is also not in favour of the landlord. 7. Submission of learned counsel for the petitioner is that the previous litigation has been incorrectly taken into account by both the courts below. In his arguments he has taken this Court though the findings that have already taken note of by this Court in previous paragraphs of this judgment and are thus, the same are not being repeated. 8. Further, submission is that now even the children of Kanhaiya Lal are major and the bonafide need of the family still exists and therefore, the rejection of release application is absolutely illegal and perverse. It was further submitted that if a separate shop is not available to the son and if he is doing business or helping his father, the landlord, it cannot be said that he is not entitled for carrying on his own business separately. It was further submitted that if a separate shop is not available to the son and if he is doing business or helping his father, the landlord, it cannot be said that he is not entitled for carrying on his own business separately. It was further submitted that the law is too well settled on this issue and it has been held that the need of the son to do separate business is a bonafide need. It was further submitted that indisputably, during this long drawn litigation, the sons of Kanhaiya Lal are also now major and therefore, it cannot be said that the need is not bonafide as now they also require a shop for business. It was also submitted that in any view of the matter both the courts below have considered only the need of Kanhaiya Lal only and need of daughter-in-law for a separate business has not at all been considered. In support of his argument learned counsel for the petitioner has placed reliance on judgments in the cases of Arvind Kumar Mishra vs. Jitendra Kumar Gupta and others 2016 (1) ARC 634 , Mukesh Kumar and others vs. Gurpreet and another 2017 (2) ARC 663, Bhagwat Sharan Agrawal vs. Om Prakash Bhardwaj 2012 (2) ARC 311 and Sushil vs. IInd Additional District Judge, Banda and others 2003 (1) ARC 256. 9. Per contra, learned counsel for the respondent submitted that concurrent findings of facts have been recorded by both the courts below that bonafide need has not been established. He pointed out that in the earlier litigation regarding release of the present shop as well as the shop in possession of the other tenant namely, Sahdeo was dismissed and since Sahdeo has vacated the shop on the basis of compromise, now two shops are available to the petitioner, which have been deliberately joined by removing the intervening wall to create artificial need. He further submitted that once the release application against the tenant-respondent stood dismissed by this Court by enhancing the rent, there is no illegality in the orders impugned therein. 10. He further submitted that once the release application against the tenant-respondent stood dismissed by this Court by enhancing the rent, there is no illegality in the orders impugned therein. 10. He further pointed out that for one more reason it is established that need is not bona fide and for this purpose he pointed out that before disposal of the release application the landlord has filed an application for enhancement of the rent before the prescribed authority, which was ultimately rejected on 05.05.2005 and immediately thereafter on 10.7.2005, during the pendency of the Writ Petition No. 14893 of 1989, an application for enhancement of rent was filed by the landlord on 05.05.2005, which indicates that the need of the landlord was not bonafide. He further pointed out that the release application was filed on 10.07.2006 and therefore, the release application is clearly mala fide and was rightly rejected. He further submitted that the photographs showing Kanhaiya Lal working on the provisional store of Natthu Lal, the landlord herein, clearly demonstrate that he is already doing business and his need is not bonafide. He submitted that the issue of comparative hardship has already been rightly decided by both the courts below. Learned counsel for the respondent has placed reliance on a judgment of Hon'ble Apex Court in the case of Maqboolunnisa vs. Mohd. Saleha Quaraishi 1998 (2) ARC 567. 11. In the rejoinder arguments learned counsel for the petitioner submitted that once release application was pending therefore, the petitioner was not debarred from making an application for enhance of rent in the meantime and therefore, it cannot be said that on this ground the release application is liable to be rejected. Submission is that, therefore, the argument of learned counsel for the respondent has no substance. It was further pointed out that in the release application a replication was filed by the petitioner clearly stating therein that the shop vacated by Sahdeo about 12 years back was only 4 x 8 ft and even after joining that shop with the shop of the landlord as on date the shop in possession of the landlord is only 8 x 10 ft and has two doors by itself is small. In paragraphs 24 and 29 it was specifically stated that tenant has other alternative accommodation in his possession and it was further specifically stated that even the grand-daughters is now major and the other children of Kanhaiya Lal and Meenakshi Devi have also grown up. This replication was filed in January, 2008. By now, 10 years have passed and therefore, now even the children of Kanhaiya Lal i.e. the grand children of the landlord-petitioner are major and therefore, their need has developed, which is liable to be taken into consideration, which was illegally not considered by the courts below, particularly by the lower appellate court. 12. I have considered the rival submissions and have perused the record. 13. On perusal of record I am of the view that the previous litigation, which had started in the year 1989 was on the ground of need of the present landlord-petitioner himself, Natthu Lal, and the present release application was filed by his mother Kutara Devi. Present release application was filed in the year 2006 by Natthu Lal himself for the need of his son and daughter-in-law both. Now, as on date even the grand children of Natthu Lal are major and their need is also existing. In other words, the need of the family is still existing. This need was also existing before the decision of the lower appellate court and was also pleaded by the landlord before the courts below. Further, it appears that need of daughter-in-law to set independent business was also not considered. 14. Under such circumstances, it is clear that the litigation of earlier release application filed by Kutara Devi or even by Natthu Lal against the present tenant-respondent has lost its relevance inasmuch as subsequent need has been set up in the present release application. 15. Under such circumstances, this court is of the opinion that the issue of bona fide need and comparative hardship have been decided by the courts below illegally and the same are perverse in nature. Accordingly, the impugned orders dated 23.1.2016 passed in Rent Controal Appeal No. 118 of 2012 and 12.7.2012 passed in P.A. Case No. 27 of 2006 are not sustainable in the eyes of law and are hereby set aside. Accordingly, the impugned orders dated 23.1.2016 passed in Rent Controal Appeal No. 118 of 2012 and 12.7.2012 passed in P.A. Case No. 27 of 2006 are not sustainable in the eyes of law and are hereby set aside. However, since the release application was filed about 12 years back, it would not be appropriate to remand the matter back to the trial court and since the lower appellate court is the final court on facts, therefore, the matter is remanded back to the lower appellate court for decision afresh, who shall decide the same on its own merits. 16. Both the parties are at liberty to amend their pleadings and file any evidence, if the need so arise, before the lower appellate court. The lower appellate court shall apply its own mind on the release application independently. 17. Since the release application is pending for last about 12 years, it is provided that the lower appellate court shall decide the case as expeditiously as possible by granting short dates and without granting any unnecessary adjournment to the parties preferably within a period of nine months from the date of production of a certified copy of this order before the learned appellate court. 18. With the aforesaid observations, present petition stands allowed. 19. There shall be no order as to costs.