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2018 DIGILAW 341 (ALL)

Shiv Raj Singh v. Kamla Srivastava

2018-02-07

SURYA PRAKASH KESARWANI

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JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard Sri Bhagwati Prasad Singh, learned Senior Advocate, assisted by Sri Vivek Kumar Singh, learned counsel for the defendant-tenant/petitioner. 2. This petition under Article 226 of the Constitution of India has been filed praying for the following relief: "1. issue a writ, order or direction in the nature of certiorari quashing the order dated 26.10.2017 passed in P.A. Case No. 70 of 2013 (Annexure No. 4 to the writ petition) and the order dated 25.01.2018 passed by the Addl. District Judge, Court No. 1, Jhansi in Appeal No. 24 of 2017 (Annexure No. 11 to the Writ petition) and dismiss the application under section 21(a) under the Act No. 13 of 1972 filed by Smt. Kamla Srivastava." 3. Learned counsel for the defendant-tenant/petitioner submits that during the pendency of the P.A. Case, the landlady has sold one house bearing Municipal No. 143/3 (new No. 230 and thereafter new No. 236) Masihaganj, Sipari Bazar, Jhansi, measuring 346.25 sq. feet. The alleged tenanted house in which she is residing, is in fact the house owned by her. Therefore, the bona-fide need was established by her. That apart her daughter-in-law, Sumegha Nagar, wife of Ashwani Srivastava has received a plot in village Lahargird by gift from her parents and for this reason also there was no bona-fide need for the disputed house. Both the courts below have completely ignored these material evidences and erroneously passed the impugned judgments. He submits that since during pendency of the P.A. Case the plaintiff-landlady/respondent has sold the aforesaid house measuring 346 sq. feet and as such in view of the judgment of this Court dated 27.8.2012 in Writ-A No. 13621 of 2003, Jagdish Prasad Barnwal v. Gopal Prasad Misra Alias Jagdish Prasad Pandey and Others, bona-fide need can be said to have been established by her. The comparative hardship is also in favour of the landlady. He, therefore, prays that the Writ Petition may be allowed and both the impugned judgments and decree may be set aside. 4. I have carefully considered the submissions of learned counsel for the defendant- tenant/petitioner and perused the record of the writ petition before me. 5. The comparative hardship is also in favour of the landlady. He, therefore, prays that the Writ Petition may be allowed and both the impugned judgments and decree may be set aside. 4. I have carefully considered the submissions of learned counsel for the defendant- tenant/petitioner and perused the record of the writ petition before me. 5. Briefly stated facts of the present case are that House No. 190/3 (New No. 236), Masihaganj, Sipari Bazar, Jhansi, was originally owned by Sri Vishesh Srivastava, who died in August 1981, leaving behind his wife i.e. the plaintiff-landlady/respondent No. 1 and two sons. The plaintiff-landlady/respondent No. 1 inherited the aforesaid house. She was in acute financial crisis and as such she had let out the disputed house measuring 1700 sq. feet to the defendant-tenant/petitioner in the year 1992. According to the plaintiff- landlady the rent was Rs. 500/- per month which was increased to Rs. 1500/- in the year 2005 which was paid by the defendant-petitioner till August 2012. Thereafter, he defaulted in payment of rent. According to the defendant-tenant/petitioner rent of the house was merely Rs. 100/- per month. The family of the plaintiff-landlady/respondent No. 1 expanded and she now has nine members in her family i.e. she herself, her two sons, their wives and children. They were residing in a tenanted house bearing Municipal No. 145/3 Masihaganj, Sipari Bazar, Jhansi. measuring about 500 sq. feet consisting of two small rooms, a small kitchen, a small court yard and latrine. On account of her bona-fide need and arrears of rent she gave notice dated 12.4.2013 by registered post to the defendant-tenant/ petitioner to vacate the disputed house and pay the arrears of rent. Notice was complied with by the defendant-tenant/petitioner and as such she filed a P.A. Case No. 70 of 2013 Smt. Kamla Srivastava v. Dr. Shivraj Singh Parihar before the Prescribed Authority/Judge Small Cause Court, Jhansi. 6. The aforesaid P.A. Case was decreed by judgment dated 26.10.2017. Aggrieved with this judgment the defendant-tenant/petitioner filed a Rent Control Appeal No. 24 of 2017 Dr. Shivraj Singh Parihar v. Smt. Kamla Srivastava which has been dismissed by the impugned judgment dated 25.1.2017, passed by the Additional District Judge, Court No. 1, Jhansi. Aggrieved with these two judgments, the defendant-tenant/petitioner has filed the present petition under Article 226 of the Constitution of India. 7. Shivraj Singh Parihar v. Smt. Kamla Srivastava which has been dismissed by the impugned judgment dated 25.1.2017, passed by the Additional District Judge, Court No. 1, Jhansi. Aggrieved with these two judgments, the defendant-tenant/petitioner has filed the present petition under Article 226 of the Constitution of India. 7. The first contention of the learned counsel for the defendant-tenant/petitioner that landlady has sold a house bearing Municipal No. 143/3, Masihaganj, Sipari Bazar, Jhansi, is wholly incorrect inasmuch as concurrent findings of fact has been recorded that the said property is a house but a small plot which has been sold by registered sale deed. The second contention of the defendant-tenant/petitioner that the landlady is occupying the house No. 145/3, Masihaganj, Sipari Bazar, Jhansi, as a tenant but as an owner, is also wholly false and baseless inasmuch as a concurrent finding of fact has been recorded that the owner and landlord of the said house is one Sri Om Praksh Likhadhari who had let out a portion of the house on the ground floor to the landlady measuring 500 sq. feet and who had filed a SCC Suit No. 56 of 2012, Om Prakash Likhadhari v. Smt. Kamla Srivastava which has been allowed and a decree of eviction has been passed. The certified copy of the judgment and decree passed in the aforesaid suit was filed in evidence by the landlady being paper No. 51-C, which has been disputed by the defendant-tenant/petitioner. Thus, the submissions of learned counsel for the defendant-tenant/petitioner that the landlady is occupying the ground floor of the aforesaid house No. 145/3, Masihaganj, Sipari Bazar, Jhansi, as a tenant but as owner is wholly false and baseless. 8. The third contention of the learned counsel for the defendant-tenant/petitioner that her daughter-in-law owns a plot at village Lahargird and as such the landlady has no bona-fide need of the disputed house, is also wholly misconceived. The fact is that one of the daughter-in-law of the landlady, namely, Smt. Sumegha Nagar, wife of Sri Ashwani Srivastava has received a plot by gift at Village Lahargird from her parents, namely, Sri Vijay Singh Nagar (father) and Smt. Asha Rani Nagar (mother). The landlady does own that plot. That apart that is a house but an open land belonging to the daughter-in-law of the landlady. The landlady does own that plot. That apart that is a house but an open land belonging to the daughter-in-law of the landlady. The landlady herself is residing in a tenanted house and a decree of eviction has already been passed by the competent court against her in a suit instituted by her landlord. 9. The size of the family of the landlady is of nine members. On the other hand the size of family of the defendant-tenant/petitioner is very small and he has retired from the post of Ayurvedic Doctor from Rajkiya Ayurvedic College, Jhansi, where he works as Professor. Thus, the landlady has well established, her bona-fide need as well as comparative hardship. The findings recorded in this regard in the impugned judgments are findings of fact based on consideration of relevant evidences on record and as such it can be interfered in writ jurisdiction under Article 226 of the Constitution of India. 10. The judgment in the case of Jagdish Prasad Barnwal (supra) relied by learned counsel for the defendant-tenant/petitioner has no application on the facts of the present case. The facts of the case of Jagdish Prasad Barnwal (supra) were that during the proceedings before the trial court, one shop of landlord fell vacant but instead of using that shop for establishing business, he allowed the shop to be allotted on rent to one Mohd. Irshad which aspect of the matter was examined for testing the bona-fide need of the landlord. On these facts, this Court held that it was a relevant factor which had to be considered in determining the bona-fide need of the landlord for seeking release of the disputed shop. The facts of the present case are entirely different inasmuch as the landlady has sold a small open plot measuring about 346 sq. feet owned by her. She has sold any house. The defendant-tenant/ petitioner is occupying an area of 1700 sq. feet which the landlady needs for residential purpose for her and her family members who are total nine in number. Thus, the judgment relied by learned counsel for the defendant-tenant/petitioner is of no help to the petitioner. 11. In view of the above discussion, I do not find any merit in this petition. Consequently, the writ petition fails and is hereby dismissed. 12. Thus, the judgment relied by learned counsel for the defendant-tenant/petitioner is of no help to the petitioner. 11. In view of the above discussion, I do not find any merit in this petition. Consequently, the writ petition fails and is hereby dismissed. 12. After this judgment was dictated in open Court, learned Senior Advocate states on the basis of instructions that the defendant-tenant/petitioner shall vacate the disputed house on or before 30th April, 2018 and is ready to pay a sum of Rs. 10000/- for use and occupation of the disputed house from today till 30.4.2018. He also states that the defendant-tenant/ petitioner is ready to file an undertaking on oath in this regard. 13. Considering the request as afore-noted, it is provided that if the defendant-tenant/ petitioner submits an undertaking on oath as aforesaid, before the concerned court below, within three weeks from today along with a certified copy of this order and deposits a sum of Rs. 10000/- towards use and occupation of the disputed accommodation for the period from today till 30th April 2018 and also deposits the decretal amount within the same period then in that event no coercive action shall be taken against the defendant-tenant/ petitioner to dispossess him from the disputed house till 30.4.2018. 14. In the event of failure either to submit the undertaking or to deposit the amount as aforesaid within the stipulated period, the protection as given above shall automatically stand vacated. In the event the defendant-tenant/petitioner does not handover the vacant and peaceful possession of the disputed house to the plaintiff-landlady/respondent No. 1 on or before 30.4.2018 then in that event the plaintiff-landlady/respondent No. 1 shall be entitled to initiate appropriate proceedings against the defendant-petitioner/tenant including the proceedings for contempt.