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2018 DIGILAW 381 (ALL)

GEETA SRIVASTAVA v. KAILASH CHANDRA SINGHAL

2018-02-12

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : Surya Prakash Kesarwani, J. Heard Sri Pankaj Agarwal, learned counsel for the defendant-tenant/petitioner and Sri Mohd. Sadab Khan, learned counsel for the applicant-landlord/respondent. 2. This petition under Article 227 of the Constitution of India, has been filed praying to set aside the judgment and order dated 30.1.2014 in Rent Case No. 16 of 2011 (Dr. Kailash Chandra Singhal v. Smt. Geeta Srivastava) passed by the Prescribed Authority/Additional Civil Judge (Senior Division), Court No. 3, Kanpur Nagar, and the judgment and order dated 31.8.2017 in Rent Appeal No. 30/14 (Smt. Geeta Srivastava v. Dr. Kailash Chandra Singhal) passed by the Additional District Judge-XIV, Kanpur Nagar. 3. Briefly stated facts of the present case are that undisputedly the applicant-landlord/respondent is the owner and landlord of the disputed house No. 24/63, Birhana Road, Kanpur. In the said house the defendant-petitioner/tenant is occupying the ground-floor, Mezzanine floor and the first floor. The tenancy is said to be very old. The applicant-landlord/respondent filed the release application being Rent Case No. 16 of 2011 on the ground of bona fide need of ground floor and the mezzanine floor for establishing office of his son namely, Sri Puneet Singhal, who is a practicing Advocate, in Civil Court, Kanpur Nagar. The pleadings were led by the parties before the Prescribed Authority. 4. After considering the submissions of the parties, pleadings and evidences on record, the Prescribed Authority passed the judgment and order dated 30.1.2014, allowing the release application under Section 21(1)(a) of U.P. Act 13 of 1972 on the finding that the applicant-landlord/respondent has established his bona fide need and comparative hardship is in his favour. There was no dispute with regard to tenant-landlord relationship. 5. Aggrieved with the aforesaid judgment the applicant-landlord/respondent filed a Rent Appeal No. 30/14 (Smt. Geeta Srivastava v. Dr. Kailash Chandra Singhal), which has been dismissed by the impugned judgment and order dated 31.8.2017 passed by the Court of Additional District Judge-XIV, Kanpur Nagar. 6. Aggrieved with the aforesaid two judgments and orders, the tenant-petitioner has filed the present petition under Article 227 of the Constitution. 7. Learned counsel for the defendant-petitioner/tenant submits that the applicant-landlord/respondent has disclosed the details of other properties, which he owns by way of succession. 6. Aggrieved with the aforesaid two judgments and orders, the tenant-petitioner has filed the present petition under Article 227 of the Constitution. 7. Learned counsel for the defendant-petitioner/tenant submits that the applicant-landlord/respondent has disclosed the details of other properties, which he owns by way of succession. He has also filed any credible evidence to establish that the house No. 62/167, Harbans Mohal, Kanpur Nagar, is sufficient to meet the requirement of his son in which they are presently residing. Therefore, the findings of both the courts below with respect to the bona fide need of the applicant-landlord/respondent and orders deserve to be set aside. 8. Learned counsel for the applicant-landlord/respondent supports the impugned judgments and submits that the impugned judgments and orders have been passed after well considering the evidences on record. The findings recorded in the impugned judgments are findings of fact, based on consideration of relevant evidences on record, therefore, the findings of bona fide need and comparative hardship cannot be interfered with under Article 227 of the Constitution of India. The impugned judgments and orders do suffer from any manifest error of law. 9. I have carefully considered the submissions of learned counsel for the parties and perused the record of the petition before me. 10. There is no dispute with regard to the relationship of landlord and tenant. There is also no dispute that the aforesaid son of the applicant-landlord/respondent is a practicing advocate and he does have a suitable accommodation to establish his office. 11. The husband of the defendant-tenant/petitioner was carrying on business of tailoring on the ground floor and mezzanine portion of the house in question, who died much ago. The defendant-tenant/petitioner has two sons, who are highly qualified and are in job abroad. The defendant-tenant is using the upper floor portion of the house in question for her residential purposes. The release application has been filed for release of the accommodation being used for residential purpose, but it has been filed merely for release of the ground floor portion and mezzanine. 12. During the course of argument, learned counsel for the defendant-tenant/petitioner, while attacking the impugned judgments, has also shown apprehension that on release of the ground-floor portion, the stair case being used by the defendant-tenant/petitioner for approach to her residential portion may be obstructed by the applicant-landlord/respondent. 12. During the course of argument, learned counsel for the defendant-tenant/petitioner, while attacking the impugned judgments, has also shown apprehension that on release of the ground-floor portion, the stair case being used by the defendant-tenant/petitioner for approach to her residential portion may be obstructed by the applicant-landlord/respondent. However, I do find any substance with regard to the apprehension shown by the learned counsel for the defendant-tenant/petitioner, inasmuch as to this extent her interest stands protected by the impugned judgments as well as the provisions of Act 13 of 1972. 13. The size of family of the applicant-landlord/respondent consists of applicant, who is a MBBS doctor, his wife, who is a teacher, son Sri Puneet Singhal for whose bona fide need the release application was filed, the daughter-in-law and three grand children. Thus, the size of family of the applicant-landlord/respondent is seven in number, while the size of family of the defendant-tenant/petitioner (excluding his sons, who are living abroad) is one. 14. The evidences led by the parties also disclose that the husband of the defendant-tenant/petitioner owned house no. 3A/259B, Nawabganj, measuring 379 Sq. mts., which the defendant-tenant/petitioner had sold after the death of her husband. 15. Before the Prescribed Authority, the defendant-tenant/petitioner has admitted that due to her ailment she used to run the shop on the ground floor through her employees. She denied the allegation of the applicant-landlord/respondent that she used to live with her son in England or America. She stated that being the mother she used to go to meet her sons. The evidences led by the parties before the Prescribed Authority revealed that house No. 62/167, Harbans Mohal, Kanpur Nagar, owned and occupied by the applicant-landlord/respondent is in a congested locality in which the applicant himself runs his clinic as a doctor. 16. Based on consideration of relevant evidences, the appellate court has recorded a finding in para 10(c), that the averments made by the applicant-landlord/respondent with respect to house No. 62/167, Harbans Mohal, Kanpur Nagar, as to inadequacy of space so as to continue in the said house an advocate chamber, has been effectively countered or brought into doubt by any material relied by the defendant-petitioner/tenant. There is nothing on record to make it appear that the need of the applicant-landlord is bona fide. There is nothing on record to make it appear that the need of the applicant-landlord is bona fide. The accommodation of house No. 62/167, Harbans Mohal, Kanpur Nagar, is inadequate for further running the advocate's chamber and the said area itself is suitable and is constrained externally and internally the ground of paucity and space. The appellate court further recorded a finding that the defendant-tenant/petitioner has been able to show that the need set up by the applicant-landlord/respondent is bona fide except raising the ground that in guise of release of the ground floor, effective release of residential first and second floor is also being sought, and that is a ground that does sustain in view of the commissioner's report and existence of staircase based access to these upper floors both from within the external garage as also from within the ground floor premises. 17. In view of the afore-noted concurrent findings of fact recorded by the courts below and also in the absence of any evidence to the contrary on record, I do find any good reason to interfere with the findings of fact recorded by the courts below. 18. So far as the question of comparative hardship is concerned, in view of the facts, as briefly noted above, including the fact of size of family of the applicant-landlord/respondent and the defendant-tenant/petitioner and employment of her sons abroad and her frequent visit for abroad to meet her sons and acute bona fide need of the applicant-landlord/respondent for office of his son, who is a practicing advocate. The findings recorded by the courts below with respect to the comparative hardship in favour of the applicant-landlord/respondent cannot be said to suffer from any manifest error of law. 19. In view of the above discussions, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed. 20. Learned counsel for the defendant-tenant/petitioner states on instructions that some time may be granted to the defendant-tenant/petitioner to vacate the disputed accommodation and for that purpose she undertakes to file an undertaking on oath within four weeks to vacate the disputed accommodation and to hand over its vacant and peaceful possession to the applicant-landlord/respondent on or before 31.8.2018. He further stated that for use and occupation of the disputed accommodation for the period from today till 31.8.2018 she shall also deposit a sum of Rs. He further stated that for use and occupation of the disputed accommodation for the period from today till 31.8.2018 she shall also deposit a sum of Rs. 10,000/- with the court below within four weeks from today. Therefore, no coercive action may be taken to dispossess her from the accommodation in question till 31.8.2018. 21. Learned counsel for the applicant-landlord/respondent has no serious objection to the aforesaid request of the defendant-tenant/petitioner. 22. Considering the aforesaid request of the defendant-tenant/petitioner, it is provided that in the event an undertaking on oath is filed to the aforesaid effect by the defendant-tenant/petitioner before the Prescribed Authority within four weeks from today and a sum of Rs. 10,000/- along with the decretal amount is also deposited within the same period then in that event, no coercive action shall be taken against the defendant-tenant/petitioner till 31.8.2018. In case of non-compliance of any of the conditions, as aforesaid, the aforesaid protection granted to the defendant-tenant/petitioner shall automatically stand vacated. It is further provided that in the event, if the disputed accommodation is not vacated and its peaceful and vacant possession is not handed over by defendant-tenant/petitioner to the applicant-landlord/respondent on or before 31.8.2018, then in that event, the applicant-landlord/respondent shall be entitled to initiate appropriate proceedings against the defendant-tenant/petitioner including the proceeding for contempt.