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2018 DIGILAW 2293 (ALL)

Jhumi Kulshreshtha v. Shiv Shankar Agrawal

2018-11-02

VIVEK KUMAR BIRLA

body2018
ORDER : Vivek Kumar Birla, J. 1. Heard Sri Pankaj Agarwal, learned counsel for the petitioners and Sri Swapnil Kumar, learned counsel for the respondent. 2. Present petition has been filed for setting aside the order dated 3.7.2018 passed by Additional District Judge, Court No. 3, Mathura in P.A. Appeal No. 8 of 2017. 3. Release application filed by the landlord-respondent for personal need was rejected by the prescribed authority. P.A. appeal filed against the same by the landlord-respondent was allowed. Release application was filed by the landlord-respondent on the ground that Dr. R.C. Kulshreshtha was the original tenant of the shop in question and after his death, his wife Smt. Kusum Kulshreshtha became the tenant of the shop. She has taken Dr. Pankaj Yadav and Dr. Sanjay Bhatnagar as sub-tenant. The opposite party no. 2-Dr. Jhumi Kulshreshta-petitioner no. 1 herein claims herself to be adopted daughter of late Dr. R.C. Kulshreshtha. The shop in question is needed for establishing his own business by the landlord as earlier he was working with his son in the firm Sri Girraj Traders, which was being run in a tenanted accommodation and the said accommodation was got vacated by its landlord on 30.9.2011. The release application was contested by the tenant and it was claimed that Dr. Jhumi Kulshreshtha is adopted daughter of late Dr. R.C. Kulshreshtha. Dr. Pankaj Yadav is her husband and nobody has been taken as a subtenant in the shop in question. It was further claimed that two other shops no. 75/243A and 75/243B, which were got vacated for personal need of his son and after release the aforesaid shops were sold by him and as such the need of the landlord is not bonafide. It was further claimed that in the tenanted accommodation eye hospital is being run and therefore, greater hardship will be caused to the tenant in case the shop is released. 4. Three issues were framed by the trial court. On issue no. 1 it was found that there was a landlord and tenant relationship between the parties. On issue no. It was further claimed that in the tenanted accommodation eye hospital is being run and therefore, greater hardship will be caused to the tenant in case the shop is released. 4. Three issues were framed by the trial court. On issue no. 1 it was found that there was a landlord and tenant relationship between the parties. On issue no. 2 it was found that one son of the landlord namely Sachin has taken a piece of land on lease from UPSIDC and is doing his own business in the name of G.R. Infotech and now he is carrying on his business in the name of Career Point of which Sachin is the exclusive proprietor. The other two shops were sold as the landlord was in need of money. Insofar as the shop vacated by Dr. K.L Sethi is concerned, it was pointed out that his another son Nitin is carrying on his business and the shop in question is required for his own business. After discussing the evidence given by both the sides, by giving a reasoning that since the profession of eye hospital that is being carried on by the opposite parties is connected with a public cause and serve the charitable and public purpose, it was held that therefore, the personal need of the landlord cannot be said to be bonafide. On the same reasoning that shifting of this eye hospital would cause inconvenience to the general public and since Dr. Jhumi Kulshreshtha is working in the field of medical comparative hardship was also decided in her favour and therefore, the release application was rejected. All such findings were reversed by the lower appellate court on the ground that personal need of the landlord for establishing his own business is bonafide and genuine and the reasoning given by the trial court that the profession of Dr. Jhumi Kulshreshtha is connected with public welfare is neither here nor there inasmuch as she is doing her profession not for charity purpose but on payment of fees and nothing was placed on record to prove that it was being done for charity purpose. 5. Submission of learned counsel for the petitioner is that two shops were released in favour of the landlord which were sold and the shop released in favour of Dr. 5. Submission of learned counsel for the petitioner is that two shops were released in favour of the landlord which were sold and the shop released in favour of Dr. Rajeev Sethi is also available to the landlord; in view of the availability of the other commercial accommodation the tenant cannot be non-suited; the prayer for appointment of the Advocate Commissioner was incorrectly rejected and it was left open to challenge the same while challenging the final judgment; it was submitted that it is a case of non concurrent findings recorded simply discussing as to whether Dr. Jhumi Kulshreshtha is adopted daughter of late Dr. R.C. Kulshreshtha or not and nothing substantial has been recorded while deciding issue of bonafide need; submission, therefore, is that the impugned order is liable to be set aside. 6. Per contra, learned counsel for the respondent has supported the impugned order and submitted that it was proved before the courts below that the son of the landlord was doing business in the name of Sri Girraj Traders in the tenanted accommodation, which was got vacated by its landlord on 30.9.2011; on release of the other shops his one son is doing business and his other son is doing his own business on a land taken on lease from UPSIDC; the release is being sought for his own bonafide need and the every member of the family has right to carry on separate business; it was further submitted that admittedly the petitioners herein are running eye hospital in a very large area and the tenanted shops are only part of the same and as such they would not suffer in case the shop is released in favour of the landlord. 7. I have considered the rival submissions and have perused the record. 8. On perusal of record I find that it is clear from the evidence on record that the release application was filed by the landlord for his own need and not for the need of his sons, who are admittedly having their own business in different accommodations. I also find that from the evidence on record it is clear that the tenanted accommodation is only part of the eye hospital, which is being run by the petitioner no. 1 herein-Dr. Jhumi Kulshreshtha, who claims herself to be adopted daughter of late Dr. R.C. Kushreshtha. I also find that from the evidence on record it is clear that the tenanted accommodation is only part of the eye hospital, which is being run by the petitioner no. 1 herein-Dr. Jhumi Kulshreshtha, who claims herself to be adopted daughter of late Dr. R.C. Kushreshtha. Without going into the issue of her being adopted daughter or not it is clear that the larger area of the eye hospital is in possession of the petitioners herein and therefore, they have sufficient accommodation for running of eye hospital. Apart from that I find that the trial court without any cogent evidence on record has given a finding that the profession of eye hospital is connected with public purpose and is charitable in nature and displacing of tenant would cause inconvenience to the general public. Nothing of that sort was even alleged by the petitioners herein in their pleadings, therefore, this finding of the trial court was absolutely out of record and to some extent mala fide in nature. I also find that this finding of the trial court was absolutely perverse in nature and no prudent person would reach to such conclusion in absence of any pleading or evidence on record and was rightly disbelieved and set aside by the lower appellate court, which is the last court on facts. The finding recorded by the trial court on issue of bonafide need, on the basis of this finding was, therefore, clearly perverse and was rightly set aside by the lower appellate court. The issue of comparative hardship was also incorrectly decided by the trial court on the basis of the same reasoning by stating that eviction of the tenanted accommodation would cause inconvenience to the general public, whereas the eye hospital exists on a larger portion of the property and tenanted accommodation forms smaller portion of the entire property of which such eye hospital is being run. The release application was filed for personal need of the landlord, whereas on the other property of the landlord his two sons were found to be having their own exclusive business. Apart from that there is nothing on record to indicate that any effort was made by the petitioner to search out any other alternative accommodation during pendency of the litigation. In such view of the matter, this finding was rightly set aside by the lower appellate court. 9. Apart from that there is nothing on record to indicate that any effort was made by the petitioner to search out any other alternative accommodation during pendency of the litigation. In such view of the matter, this finding was rightly set aside by the lower appellate court. 9. It is also well settled that the Advocate Commissioner report cannot be used for the purpose of collecting evidence, therefore, once the courts below were satisfied that there was sufficient evidence on record, the application for Advocate Commissioner report was rightly rejected and requires no interference. 10. In view of the discussions made hereinabove I do not find any legal infirmity in the order impugned herein so as to attract interference of this Court under Article 227 of the Constitution of India. 11. A reference may also 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. 12. Present petition is devoid of merits and is accordingly dismissed. 13. However, 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. 6000/-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. 14. There shall be no order as to costs.