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2018 DIGILAW 1983 (ALL)

Rajjan Verma v. Santosh Dubey

2018-09-13

VIVEK KUMAR BIRLA

body2018
JUDGMENT : 1. Heard learned counsel for the petitioners and Sri Santosh Kumar, learned counsel appearing for the respondents. 2. Present writ petition has been filed seeking quashing of the impugned order dated 14.1.2016 passed by the Prescribed Authority/IInd Additional Civil Judge (Senior Division), Kanpur Nagar in Rent Case No. 24 of 2010, Santosh Dubey and others Vs. Rajjan Verma and others and the impugned order dated 12.7.2018 passed by the learned District Judge, Kanpur Nagar in Rent Appeal No. 6 of 2016, Rajjan Verma and others Vs. Santosh Dubey and others filed as Annexures 8 and 12 respectively to the writ petition. 3. By the impugned order dated 14.1.2016 the release application filed by the landlord under Section 21 (1) (a) of U.P. Act No. 13 of 1972 was allowed. The appeal filed against the same by the tenant-petitioner herein was dismissed by the lower appellate court vide judgment dated 12.7.2018. 4. The release application was filed on the ground that the landlord has a large family consisting of 10 members and his one married daughter is also living with them. The details of the family members have been given in paragraph 4 of the release application. Apart from the need expressed, it was specifically asserted that one son of the landlord due to space problem had to shift to the village. Earlier his children were receiving education in Kanpur but due to lack of proper space they had to shift to the village. The applicants no. 1 and 2 are old persons and need space on the ground floor. It was also asserted that due to large number of family members at least four rooms, two store rooms, and one kitchen are required. Regarding the tenant petitioners it was also asserted that they have their own house in Kanpur Nagar and they can shift to the same. 5. The suit was contested on the ground that the tenant has no other accommodation in his possession in the district of Kanpur and on the first floor as well as on the ground floor sufficient space is available to the landlord and therefore, his need is not bonafide and he is in possession of only one room and he does not have any other accommodation in the city of Kanpur, therefore, the release application is liable to be set aside. It was further asserted that the landlord has five rooms on the ground floor and six rooms on the first floor and has also agricultural land in Village Rautapur Kalan, Tehsil Bilhaur, Kanpur wherein Dilip son of the landlord who is applicant no. 3 in the release application is engaged in agriculture and is living there, therefore, he has no bonafide need. It was also asserted the release application in respect of two tenants were allowed by the trial court but no execution was pressed against them and they continued with enhanced rent. The other two tenants have also vacated four rooms which are in possession of the landlord. 6. All such facts were denied by the landlord in his replication and it was asserted that there is bonafide need of children of Dilip as they are living in village and no proper education is available there and the applicants no. 1 and 2 are old aged ailing persons. 7. All such facts were considered by the trial court and the release application was allowed. 8. The trial court framed three issues. 9. On Issue no. 1 it was found that the relationship of landlord and tenant is admitted to the tenant petitioner. 10. On Issue no. 2 regarding bonafide need it was found that earlier the children of applicant no. 3 Dilip were receiving education in Kanpur but they had to shift to the village due to lack of proper residential accommodation and now their need is bonafide. It was also found that the landlord is in possession of two rooms, one is being used as store room and the other is being used for their own residential purpose. The other tenants have not vacated rest of the accommodation. Regarding education of children of the applicant no. 3 a documentary evidence was filed that earlier they were receiving education in the city of Kanpur and now they are grown up, therefore, the need is bonafide for their education in Kanpur. 11. On Issue no. 3, regarding comparative hardship, it was found that the tenant petitioner never made any effort to search out any alternative accommodation. It was also recorded that the tenant has alternative residential accommodation in his possession and the same has not been denied. 12. All such findings were affirmed by the lower appellate court in appeal. 13. 11. On Issue no. 3, regarding comparative hardship, it was found that the tenant petitioner never made any effort to search out any alternative accommodation. It was also recorded that the tenant has alternative residential accommodation in his possession and the same has not been denied. 12. All such findings were affirmed by the lower appellate court in appeal. 13. Submission of learned counsel for the petitioner is that the bonafide need has not been established and it has wrongly been recorded that the tenant petitioner has other alternative accommodation. The tenant has admitted that he has alternative accommodation in Kanpur whereas he has denied the said fact that he has no other alternative accommodation in the city of Kanpur. It was further submitted that the tenant is living in only one room whereas the landlord has large accommodation in his possession. The prayer for appointment of Advocate Commissioner was also incorrectly rejected by the trial court. It was next submitted that the judgment of the lower appellate court is in violation of Order 41 Rule 31 CPC and therefore, the impugned judgments and orders are liable to be set aside. 14. In so far as the contention regarding application of Order 41 Rule 31 CPC is concerned, learned counsel for the petitioner has placed reliance on judgment of the Hon'ble Apex Court in the case of Apparaju Malhar Rao Vs. Tula Venkataiah @ Venkat Rao (Dead) and others AIR (SC) 2017 5061 and the judgment of this Court in the case of Phool Chandandra and others Vs. Deota Deen and others 2017 (3) ARC 863 in support of his argument that compliance of Order 41 Rule 31 CPC is mandatory. 15. Per-contra, learned counsel for the respondents has supported the impugned judgments and submits that concurrent findings recorded by the courts below requires no interference. 16. I have considered the rival submissions and have perused the record. 17. On perusal of record, I find that details of family members of the landlord have been mentioned in paragraph 4 of the release application. In the appellate judgment it has been noticed that a documentary evidence was filed by the landlord that the rooms which were alleged to have been vacated by other tenants have actually not been vacated and they are not in possession of the landlord. In the appellate judgment it has been noticed that a documentary evidence was filed by the landlord that the rooms which were alleged to have been vacated by other tenants have actually not been vacated and they are not in possession of the landlord. The bonafide need for residential accommodation has been expressed for various reasons including the personal difficulty of the applicants no. 1 and 2. 18. It is settled law that the application for appointment of Advocate Commissioner is not a substitute for collection of evidence. A reference may be made in this regard to a judgment of the Mohammad Ibrahim Vs. Ashok Kumar Agarwal 2018 (2) ARC 417. 19. The need of the landlord for comfortable living is also a bonafide need, particularly when accommodation is required for Dileep Kumar for shifting to Kanpur from village for the purpose of education of his children. 20. In so far as the comparative hardship is concerned, although concurrent findings have been recorded by both the courts below that the tenant petitioner has not disputed the fact that he has other accommodation in the city of Kanpur, even if the contention of the petitioner is accepted that he has denied this fact in his written statement, it is not in dispute that he has made no effort to search out any alternative accommodation during the pendency of the release application which was filed in the year 2010. 21. In so far as the application under Order 41 Rule 31 CPC is concerned, the judgments relied on by learned counsel for the petitioner, suffice to note that both the cases were arising out of civil suit proceedings and as such the said rulings have no application in the present case. 22. In such view of the matter, I do not find any perversity or legal infirmity in the orders impugned herein so as to attract interference by this Court. 23. This writ petition is devoid of merit and is, accordingly, dismissed. 24. At this stage, learned counsel for the petitioners pray that some time may be granted to vacate the premises. 25. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioners-tenant before the Court below, it is provided that: (1) The tenant-petitioners shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.3.2019. 25. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioners-tenant before the Court below, it is provided that: (1) The tenant-petitioners shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.3.2019. (2) The tenant-petitioners 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-petitioners 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. 1,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.3.2019 or till the date they vacate the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount; (5) In the undertaking the tenant-petitioners 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-petitioners 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 petitioners, they shall also be liable for contempt. 26. There shall be no order as to costs.