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2018 DIGILAW 397 (ALL)

Raisuddin v. Abida

2018-02-13

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard Sri P.R. Maurya, learned counsel for the defendant-tenant/petitioner and Sri P.K. Srivastava, learned counsel for the applicant-landlady/respondent. 2. Briefly stated facts of the present case are that undisputedly applicant-respondent is the owner and landlady of the house situate in Mohalla Darudgaran, Shahipeer Gate, Meerut, in which the defendant-petitioner is a tenant of a shop. There is no dispute of landlord-tenant relationship between the applicant-landlady/respondent and the defendant- tenant/petitioner. The applicant-landlady/respondent filed a release application under Section 21(1)(a) of U.P. Act 13 of 1972 being P.A. Case No. 51 of 2006, Smt. Abida v. Raisuddeen which was allowed by the Prescribed Authority/Judge Small Cause Court, Meerut by judgment and order dated 16.2.2013. Aggrieved with this judgment the defendant-tenant/petitioner filed a Misc. Appeal No. 36 of 2013, Raisuddeen v. Smt. Abida which was dismissed by judgment and order dated 15.1.2018, passed by the Court of Additional District Judge, Court No. 11, Meerut. Aggrieved with these two judgments the defendant-tenant/petitioner has filed the present petition under Article 226 of the Constitution of India. 3. Learned counsel for the defendant-tenant/petitioner submits that the plaintiff-landlady/ respondent not only owns a residential house but also two more shops. Her husband is a Corporator and is also serving as an Assistant Teacher in a Junior High School. Under the circumstances she was not in a bona fide need. The bona fide need could not be established by her and yet the courts below have passed the impugned judgment allowing the release application. The courts below have also not considered properly the comparative hardship which was in favour of the defendant-tenant/petitioner. 4. Learned counsel for plaintiff-landlady/respondent supports the impugned order. 5. I have carefully considered the submissions of learned counsel for the parties and perused the record of the writ petition before me. 6. There is no dispute that the plaintiff-respondent is the owner and landlady of the disputed shop (Private shop No. 10) situate in building No. 3, Mohalla Darugaran, Shahpeer Gate, Meerut. Defendant-petitioner is occupying the aforesaid shop at a monthly rent of Rs. 432/-. The plaintiff-landlady issued a notice dated 22/25.8.2005, which was well served upon the defendant-tenant/petitioner who also sent a reply dated 15.9.2005 to the aforesaid notice. Defendant-petitioner is occupying the aforesaid shop at a monthly rent of Rs. 432/-. The plaintiff-landlady issued a notice dated 22/25.8.2005, which was well served upon the defendant-tenant/petitioner who also sent a reply dated 15.9.2005 to the aforesaid notice. Since the shop was not vacated and its vacant possession was not handed over to the plaintiff-landlady/respondent and as such she filed a P.A. Case No. 51 of 2006, Smt. Abida v. Raisuddeen. After considering the documentary evidences on record, the Prescribed Authority/Judge Small Cause Court, Meerut, and the Appellate Court both recorded concurrent findings of fact that the plaintiff-landlady is in bona fide need of the disputed shop and comparative hardship is in her favour. After marriage, the plaintiff-landlady is residing on the second floor of house No. 56 Nogaja, Rajo Wali Masjid, Shahpeer Gate, Meerut at a monthly rent of Rs. 800/-. She has also established that even prior to marriage she was engaged in the business of stitching, embroidery, knitting, preparing Salwar Suit, night gown and kids clothes etc. She has established by oral and documentary evidences that she is still doing this business but she has no proper place to run her business and, therefore, she needs the disputed shop which is owned by her. Evidences brought on record also established that the defendant-tenant/petitioner is not using the disputed shop. That apart he has also purchased shop No. 690, Police Choki, Shoharab Gate, Meerut from one Sri Matin. He also owns a house No. 664 (New No. 689) Mohalla Sarai Bahaleem, Ward No. 36, Meerut, which consists of one room, one shop and a Verandah on the ground floor. Certified copy of Chittha relating to the house and shops owned by the defendant-tenant/petitioner were also filed in evidence. The defendant- tenant/petitioner has also admitted in his affidavit 35-Ga that he has a shop at Jamun Wali Masjid, Soherab Gate, in front of police Choki, Meerut. The sale deed of the house purchased by the defendant-tenant/petitioner being paper No. 35Ga and certified copy of Chitta being paper No. 47Ga were also filed in evidence which clearly proved that the defendant-tenant/petitioner owns the house in which there is a shop. 7. The sale deed of the house purchased by the defendant-tenant/petitioner being paper No. 35Ga and certified copy of Chitta being paper No. 47Ga were also filed in evidence which clearly proved that the defendant-tenant/petitioner owns the house in which there is a shop. 7. The evidences brought on record being acknowledgement (Paper No. 29Ga) shows that the notice sent by the plaintiff-landlady was received by the defendant-tenant at the address "Janta Kirana Store, Soherab Gate, opposite Police Choki, Meerut." In SCC Suit No. 110 of 2008, a summon was sent which contains the report being paper Nos. 65 Ga to 68 Ga, which records that "the process server went repeatedly on the disputed shop but the defendant-tenant was not available." According to paper No. 65 Ga the defendant-tenant could be contacted on the address "689 Sarai Bahti, opposite Police Choki, Lassi Ki Dukan, Meerut" which is owned by the defendant-tenant/petitioner as evident from his own affidavit 35Ga in which he admitted that the said house was purchased by him from Jarina Begum by registered sale deed dated 5.3.1993. The postal receipt of the intimation for caveat sent to the defendant-tenant being paper No. 9Ga.2/2 also proved that he received the intimation of caveat at the address "690 Sarai Bahrain, Shoraib Trade, opposite Police Choki." The defendant-tenant/petitioner had also filed an affidavit 50Ga in which he stated that from the disputed shop he is running his business under the name and style "Kashish Embroidery Material Store" in which his son Wasim used to assist. Along with the affidavit he had also filed photographs of the disputed shop. The photographs being paper No. 50Ga.11 contains the description of "Kashish embroidery material store, Sohraib Gate, Police Choki, in front of Masjid, Meerut. The court below found that the aforesaid address as reflected in the photographs filed by the defendant-tenant is not the address of the disputed shop but is the address of other shop of the defendant-tenant/petitioner. The court below also found that a false affidavit was filed by the defendant-tenant/petitioner. Based on voluminous evidences the court below found that in fact the defendant-tenant/petitioner is not carrying on any business in the disputed shop. The plaintiff-landlady/respondent is in bona fide need of the disputed shop and comparative hardship is in her favour. The defendant-tenant/petitioner owns several shops and is doing different business from different shops. Based on voluminous evidences the court below found that in fact the defendant-tenant/petitioner is not carrying on any business in the disputed shop. The plaintiff-landlady/respondent is in bona fide need of the disputed shop and comparative hardship is in her favour. The defendant-tenant/petitioner owns several shops and is doing different business from different shops. The findings so recorded by the courts below are findings of fact based on consideration of relevant evidences on record. Therefore, these findings of fact can not be interfered with in writ jurisdiction under Article 226 of the Constitution of India. 8. In view of the above discussion, this writ petition deserves to be dismissed with cost. 9. In result the writ petition is hereby dismissed with costs of Rs. 25,000/-. The costs shall be deposited by the defendant-tenant/petitioner with the court below within one month and on deposit thereof the plaintiff-landlady/respondent shall be entitled to withdraw it.