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2018 DIGILAW 1823 (ALL)

Abdul Sattar v. Abdul Haj

2018-08-20

VIVEK KUMAR BIRLA

body2018
JUDGMENT : V.K. Birla, J. 1. Heard Sri Saurabh Srivastava, learned Counsel for the tenant-petitioner and Sri Ramendra Asthana alongwith Sri M.L. Maurya, learned Counsel appearing on behalf of landlord-respondent. Present petition has been filed seeking quashing of the impugned order dated 27.9.2013 passed by the Additional District Judge/Special Judge, E.C. Act, Kanpur Nagar. 2. Release application filed by the landlord-respondent on the ground of personal need of his son was rejected. Appeal filed by the landlord-respondent against the same was allowed. Present petition has filed against the judgment and order of the lower Appellate Court. The release application was filed on the ground that the applicant is carrying on his business of sale of shoes in premises No. 44/308 Machhli Tola, Kanpur Nagar in the name and style of Mohd. Hazi Hayi as proprietor thereof. At the time of filing of the release application in the year 1999, his family consisted of 19 members. One of his son Abdul Rashid was carrying on his independent business in shop No. 42/145 Bisati Bazar in the name and style of M/s. Right Way Traders as the proprietor thereof. His two sons namely Mohd. Sharif and Abdul Latif engaged in sale supplying of shoes. It was specifically averred that since they have got no shop to carry on their business, therefore, under compelling circumstances after procuring orders from the parties and supply goods to them from godown and for this purpose, they are having their godowns in premises No. 145/155, Bakar Mandi, Kanpur. One son Abdul Khaliq is assisting him in his business but on account of differences and strained relationship between applicant and his son and daughter-in-law, his son wants to carry on his independent business separately. It was further asserted that the defendants are having alternative accommodation 44/236 and 44/226 Machhli Tola, Kanpur, where they can carry on their business. Hence, the release of the shop in premises No. 42/145 Bisati Bazar, Kanpur was sought. 3. The prescribed authority rejected the release application on the ground that since in property No. 44/155 sons of the landlord have three godowns on rent, therefore, one of the godowns can be used by Mohd. Khaliq for his independent business and therefore, the need was not bona fide and comparative hardship was also recorded against the landlord. 4. Challenging the same an appeal was filed by the landlord. Khaliq for his independent business and therefore, the need was not bona fide and comparative hardship was also recorded against the landlord. 4. Challenging the same an appeal was filed by the landlord. During pendency of appeal the landlord died. The appeal was allowed by the lower Appellate Court on the ground that the three godowns that have been taken note of by the prescribed authority are the godowns on rent and the landlord cannot be forced to carry on business in godown. Further, one son cannot be forced to carry on business in the premises taken on rent by another son and therefore, the need is bona fide and the finding recorded by the Prescribed Authority is incorrect. Noticing the argument of the tenant that since the landlord had already died, therefore, now the need of his son Mohd. Khaliq had extinguished and the release application was liable to be rejected by the Court below, this contention was rejected by the lower Appellate Court on the ground that the number of family members as stated in the release application is not in dispute and other member of the family is entitled to carry on his own independent business and as such, it cannot be said that the need of the sons to carry on independent business has vanished or extinguished. 5. Challenging the lower Appellate Court's order submission of learned Counsel for petitioner is that the learned Appellate Court has committed grave error of law in not reversing the specific findings on alternative accommodation recorded by the prescribed authority. The landlord admittedly died on 10.11.2011 during pendency of the appeal but the release application was not amended for setting up the need of other family members by the respondents, therefore, the lower Appellate Court has committed a grave error in considering the need of the family. In support of his argument learned Counsel for the petitioner has placed reliance on Judgment of Hon'ble Apex Court in the case of Jai Prakash Gupta (dead) through L.Rs. v. Riyaz Ahmad and another, 2009 (77) ALR 622 (SC) : 2009 (84) AIC 218. He further submitted that even as per the evidence on record one godown in the campus 44/155 Bakar Mandi is available and therefore, there was no justification in allowing the appeal. 6. v. Riyaz Ahmad and another, 2009 (77) ALR 622 (SC) : 2009 (84) AIC 218. He further submitted that even as per the evidence on record one godown in the campus 44/155 Bakar Mandi is available and therefore, there was no justification in allowing the appeal. 6. Per contra, learned Counsel for the respondent submitted that due to the subsequent event the need of the other legal heirs, who have been impleaded in the appeal, has also come up and the Court below has rightly allowed the appeal. It was further submitted that even otherwise the need of the family still remains and drawing attention to paragraph 7 of the release application it was further pointed out that the other two sons namely Mohd. Sharif and Abdul Latif were doing their business under compulsion only from the godowns as they do not have any shop available to carry on their business. He submits that in view of the assertions already made in the plaint, the need of the family as reflected in the release application continues after the death of the original landlord and the same has rightly been considered by the lower Appellate Court. Learned Counsel for the respondent has placed reliance on judgments of this Court in the case of Janual Abdin and others v. Govind Lal and another 2014 (2) ARC 779 and Ved Prakash Gupta and others v. District Judge, Rampur and others 2006 (63) ALR 24. 7. I have considered the rival submissions and have perused the record. 8. On perusal of record I find that the Trial Court has considered four accommodations in possession of the landlord. He found that premises No. 40/149 is residential premises; premises No. 42/145 is in possession of Abdul Rashid, who is one of the son of landlord, who is carrying on his separate business; premises No. 44/308 is being used by the landlord himself for his independent business and therefore, they were not available to serve the need of the landlord, however, while discussing premises No. 44/155, wherein three godowns are in possession of the sons of the landlord. It was found that paper No. 24/19 (annexure-9) indicates that one godown on rent is in the name of Mohd. Rashid @ Rs. 500/- per month; annexure-10 was the rent receipt in the name of Mohd. Latif showing that he is on rent @ Rs. It was found that paper No. 24/19 (annexure-9) indicates that one godown on rent is in the name of Mohd. Rashid @ Rs. 500/- per month; annexure-10 was the rent receipt in the name of Mohd. Latif showing that he is on rent @ Rs. 400/- per month; Annexure-11 was a rent receipt in the name of Mohd. Sharif @ Rs. 400/- per month and all three receipts were of September, 2000. He found that the fact regarding godown in possession of Mohd. Rashid was concealed by the landlord and thus, that place is available for his son Mohd. Khaliq and, therefore, holding that the landlord has not come with clean hand, bona fide need was found to be against the landlord. However, learned Appellate Court after discussing the aforesaid three godowns in premises No. 44/155 recorded that all the three other godowns are on rent in the name of three other sons of the landlord. 9. From perusal of record I find that this fact is not in dispute that all the godowns are on rent. Apart from that I find that the release application was filed in the year 1999 specifically stating therein that there are 19 family members and although in paragraph 8 and 9 need of Abdul Khaliq was set up, however, the need of other sons or some of the family was also stated in paragraph 7 of the release application, wherein it was categorically stated that two sons namely Mohd. Sharif and Mohd. Latif have got no shops of their own to carry on their business and under these compelling circumstances they are carrying on their business from the godowns and supply goods to the parties from their godowns only. Thus, the need of other family members was also mentioned. A certified copy of the amended memo of rent appeal No. 38/2004 decided by the lower Appellate Court has been annexed as Annexure-1 to the counter-affidavit, which clearly indicates that all the legal heirs of late Abdul Hai, the landlord, have been substituted and brought on record. Applicant 1/5 Mohd. Faizal aged about 27 years, who is also the son of late Abdul Hai, whose name was also figured at serial No. 17, in paragraph 5 of the release application was shown aged about 17 years at the time of filing of release application filed in the year 1999. 10. Applicant 1/5 Mohd. Faizal aged about 27 years, who is also the son of late Abdul Hai, whose name was also figured at serial No. 17, in paragraph 5 of the release application was shown aged about 17 years at the time of filing of release application filed in the year 1999. 10. It is also pertinent to note that apart from carrying the other necessary amendments one paragraph 9-A was also added to the memo of appeal (Annexure-1 to the counter-affidavit), which is quoted as under: "That the during pendency of the present appeal the appellant Abdul Hai has expired on 10.11.2011 leaving behind the appellant No. 1/1 to 1/11 as his heirs. The right to sue survives to them against the aforesaid OPs and they are entitled to get all the reliefs claiming in the appeal against them as well." 11. A perusal of the above quoted paragraph 9-A clearly indicates that it has been categorically claimed that the right to sue survives to them against the aforesaid opposite parties and they are entitled to get all the reliefs claimed in appeal against them. Since, during the pendency of the appeal, after death of the original landlord the legal heirs have been substituted and they claim that they are entitled to all the relief against the opposite parties, thus, in the opinion of the Court, the family of late landlord has come forward to claim the relief as prayed in the release application. 12. Under such circumstances, there may not be any specific amendments in the release application, however, in view of the subsequent event, the contents of paragraph 7 of the plaint become important, wherein names of family members have been mentioned and they have been substituted in appeal and have specifically claimed relief. Apart from that from perusal of the names of the parties in the plaint and the release application becomes clear that Mohd. Faizal has now become major, who was aged about 17 years at the time of filing of the release application. Thus, in the opinion of the Court the lower Appellate Court has rightly considered the need of the family and has rightly observed that in any case the landlord cannot be forced to continue in a tenanted accommodation and the release application should not be rejected on a technical ground. 13. Thus, in the opinion of the Court the lower Appellate Court has rightly considered the need of the family and has rightly observed that in any case the landlord cannot be forced to continue in a tenanted accommodation and the release application should not be rejected on a technical ground. 13. The ruling relied on by the learned Counsel for the petitioner indicates that the subsequent event can be considered and finding has to be recorded by the Court below to this effect. In respectful agreement of the aforesaid judgment in the case of Jai Prakash Gupta (supra), which is also binding on this point, I find that the substitution of all the legal heirs and claiming all the reliefs as prayed for in the release application and in view of paragraph-7 of the release application, apart from the fact that three godowns were in the name of three other sons are undisputedly a tenanted accommodation, I find that sufficient pleading was available before the lower Appellate Court to record its findings taking into consideration the need of the family as all the legal heirs are claiming the relief as prayed for in the release application. 14. Under such circumstances, I do not find that the Court below has committed any legal infirmity or the jurisdictional error in allowing the release application. 15. In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the Courts below. Present petition is devoid of merits and is accordingly dismissed. 16. 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 31.1.2019; (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) The tenant-petitioner shall pay damages @ Rs. (4) The tenant-petitioner shall pay damages @ Rs. 4000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.1.2019 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount; (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. There shall be no order as to costs.