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2018 DIGILAW 518 (ALL)

Vimla Devi v. Prescribed Authority Mathura

2018-02-27

SURYA PRAKASH KESARWANI

body2018
JUDGMENT AND ORDER : 1. Heard Sri S. S. Sharma, learned counsel for the defendant-petitioner. 2. Briefly stated facts of the present case are that the plaintiff-landlord/respondent has filed a release application under Section 21(1)(a) of U.P. Act 13 of 1972, dated 13.8.2008 being P.A. Case No. 45 of 2008, Rakesh Kumar v. Smt. Vimla Devi, which was allowed by the Additional Civil Judge (Senior Division) (Court No. 1), Mathura by judgment and decree dated 2. 8. 2017. 3. Aggrieved with this judgment, the defendant-petitioner/tenant filed P.A. Appeal No. 14 of 2017, Smt. Vimla Devi v. Rakesh Kumar, which was dismissed by the impugned judgment dated 30.11.2017 passed by the District Judge, Mathura. 4. Aggrieved with the aforesaid judgment, the defendant-petitioner/tenant has filed the present writ petition. 5. Learned counsel for the defendant-petitioner/tenant submits as under: (i) The first assessment of the disputed shop was made by the local body in the year 1987, as per assessment record. Therefore, the provisions of Section 2(2) of U.P. Act 14 of 1972 itself it not applicable. (ii) The boundary of the disputed shop as mentioned in the sale-deed of 2000 is different. Thus, the disputed shop is not the same shop which the plaintiff-landlord/respondent has purchased in the year 2000. (iii) The plaintiff-landlord/respondent owned several shops. Therefore, the comparative hardship was in favour of the defendant-tenant/petitioner but the courts below have committed a manifest error of law to hold otherwise. 6. In support of his submission learned counsel for the defendant-petitioner/tenant has relied upon the decisions in Pradeep Kumar v. District Judge, Jalaun and Others, (2012) 3 ARC 196 , Vijay Laxmi Jain v. Rameshwar Dayal Gupta, (2001) 1 ARC 514, Mahipal Verma v. Rent Control and Eviction Officer/City Magistrate, Saharanpur and Others, (2014) 103 AllLR 326 and Ramesh Chandra Yadav v. IInd A.D.J. Jalaun at Orai and Others, (2012) 94 AllLR 13 . 7. I have carefully considered the submission of the learned counsel for the defendant- petitioner/tenant and perused the record of the petition before me. 8. The disputed shop was originally owned by one Sri Krishna Murari, who sold it by registered sale-deed dated 13. 5. 1970 to one Sri Mool Chand, who died some time in the year 1999. The shop was inherited by his wife Smt. Padmawati @ Premwati, who sold it to the plaintiff-landlord/respondent by registered sale deed dated 11.2.2000. 8. The disputed shop was originally owned by one Sri Krishna Murari, who sold it by registered sale-deed dated 13. 5. 1970 to one Sri Mool Chand, who died some time in the year 1999. The shop was inherited by his wife Smt. Padmawati @ Premwati, who sold it to the plaintiff-landlord/respondent by registered sale deed dated 11.2.2000. The plaintiff- landlord/revisionist gave a notice to the defendant-petitioner/tenant intimating purchase of the disputed shop. On account of default in payment of rent, the plaintiff-landlord/ respondent filed S.C.C. Suit No. 06 of 2007, Rakesh Kumar v. Smt. Vimla Devi in which the defendant-petitioner/tenant admitted the plaintiff-landlord/respondent to be the owner and landlord of the disputed shop. She admitted that the provisions of U.P. Act 13 of 1972 are applicable to the disputed shop. She made deposit under section 20(4) of the Act. Hence, the aforesaid S.C.C. Suit No. 06 of 2007 was dismissed. 9. Thereafter, the plaintiff-landlord/respondent had filed a release application being P.A. Case No. 45 of 2008 on the ground of his bona-fide need. This P.A. Case was allowed by the impugned judgment dated 2.8.2017 against which the defendant-tenant filed P.A. Appeal No. 14 of 2017, which has been dismissed by the impugned judgment dated 30.11.2017. 10. In the sale-deed dated 11. 2. 2000, whereby the plaintiff-landlord/respondent herein, had purchased the disputed shop from its erstwhile owner Smt. Padmawati, it is clearly mentioned that the defendant-petitioner herein, is a tenant of the disputed shop. 11. On a specific query made by this Court from the learned counsel for the defendant- petitioner/tenant that since when the defendant-petitioner is a tenant of the disputed shop, he avoided to reply whereas in view of the provisions of Section 165 of the Indian Evidence Act, 1872, the defendant-petitioner/tenant was bound to reply this query. 12. From the facts and findings as noted in the impugned judgment, it is evident that the disputed shop was originally owned by one Sri Krishna Murari, who sold it by a registered sale-deed dated 13.5.1970 to Sri Mool Chand, as aforementioned. Thus, there cannot be any dispute that the disputed shop was existing prior to 13.5.1970, when it was sold by the original owner to one Sri Mool Chand, who subsequently died. Thereafter, his wife Smt. Padmawati @ Premwati has sold it to the plaintiff-landlord/respondent herein by registered sale-deed dated 11.2.2000. Thus, there cannot be any dispute that the disputed shop was existing prior to 13.5.1970, when it was sold by the original owner to one Sri Mool Chand, who subsequently died. Thereafter, his wife Smt. Padmawati @ Premwati has sold it to the plaintiff-landlord/respondent herein by registered sale-deed dated 11.2.2000. As per her own admission of the defendant-petitioner in S.C.C. Suit No. 06 of 2007, inter-parties, the disputed shop is covered by the provisions of U.P. Act 13 of 1972. That apart, the defendant-petitioner is a very old tenant of the disputed shop, but despite being specifically asked by this Court, the defendant-petitioner/tenant avoided to answer that since when, she is the tenant. The conduct of the defendant- petitioner/tenant, therefore, shows deliberate suppression of facts by her in the present writ petition. 13. The submission of the learned counsel for the defendant-petitioner/tenant that the disputed shop is not the same shop, which was purchased by the plaintiff-landlord/ respondent by registered sale deed dated 11.2.2000, is totally baseless and without any evidence on record. 14. The submission on the point of bona-fide need and comparative hardship as advanced by the learned counsel for the defendant-petitioner/tenant, also has no substance. Both the courts below have considered these questions based on evidences and have recorded findings of fact that the plaintiff-landlord/respondent is in bona-fide need of the disputed shop and the comparative hardship is in his favour. These findings of fact are based on consideration of relevant evidences on record and, therefore, cannot be interfered with in writ jurisdiction under Article 226 of the Constitution of India. No evidence could be brought on record by the defendant-tenant/petitioner that the plaintiff-landlord exclusively owns and occupies any shop in a vacant position. The judgments relied upon by the learned counsel for defendant-tenant/petitioner are clearly distinguishable on the facts of the present case. 15. A finding of fact based on evidences has also been recorded that the defendant- tenant/petitioner is keeping the disputed shop closed from last more than 5 years and no business is being carried from it. Even its electricity line has been disconnected. 16. In view of the aforesaid discussions, I do not find any merit in this writ petition. This is a frivolous writ petition, which is hereby dismissed with costs of Rs. 10,000/-.