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2018 DIGILAW 64 (ALL)

Akram v. Mohamad Arif

2018-01-08

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. 1. Heard Sri K.K. Tiwari, learned counsel for the petitioner and Sri Sanjay Agrawal, learned counsel appearing for the landlord-respondent. 2. At the very outset, Sri Sanjay Agrawal stated that he does not want to file any counter affidavit and the petition may be decided finally, therefore, I proceed to hear the matter on merits. 3. Present petition has been filed for quashing the order dated 3.9.2015 passed in P.A. Case No. 40 of 2011, Mohammad Arif v. Akram as well as order dated 1.8.2017 passed by Additional District and Sessions Judge/FTC, Court No. 2, Jhansi. 4. Facts, in brief, of the case are that the release application under Section 21(1)(a) of the Act 13 of 1972 (hereinafter referred to as the Act) was filed by the landlord on the ground that he has two sons, who have left their studies and the shop in question is required for fulfilling the bona-fide need of one son for establishing him in business. The same was contested by the tenant on the ground that the landlord is a rich person and has several shops in his possession and the present shop is required and there is no need much less of bona-fide need of the landlord to establish his son as both the sons are well established. It was further pleaded that he has a profession of sharpening knife and is a person of small means and comparative hardship is in his favour. The trial court framed two issues. Issue no. 1 whether the need of the landlord is genuine and bona-fide was decided against the tenant-petitioner and Issue No. 2 regarding comparative hardship was also decided against the tenant-petitioner. The appeal filed against the judgment of the trial court was also dismissed by the lower appellate court and both the judgments are under challenge before this Court. 5. Submission of learned counsel for the petitioner is that the need of the landlord is at all genuine and the findings recorded by both the courts below are liable to be set aside on this issue. Advancing the argument it was submitted that the landlord has several shops in his possession. One shop no. 5. Submission of learned counsel for the petitioner is that the need of the landlord is at all genuine and the findings recorded by both the courts below are liable to be set aside on this issue. Advancing the argument it was submitted that the landlord has several shops in his possession. One shop no. 305 at Sarafa Bazar, Jhansi is available to the landlord, whereon his elder son Tariq is carrying on business; one big 'bada' in Mohalla Mukaryana, Jhansi is available to the landlord, wherein the landlord Arif himself is carrying on wholesale business of 'lakdi ki tal' and 'murgi ka dana' and mobile phone tower is also existing thereon from which also he is earning Rs. 10,000/- per month. He also has a property of 2000 sq. ft. in area Masjid Bisati Bazar, wherein he is also carrying on wholesale charcoal and hen feed business, whereon his younger son Aamir carries on business and therefore, both the sons of the landlord are well established, whereas the petitioner is a person of small means and has large family to support, therefore, he shall suffer great hardship in case he is evicted from the shop. It was further submitted that the tenant made all efforts to search out any alternative shop but he could get the alternative accommodation. It was also submitted that infact Aamir younger son of the landlord is also known as Md. Iqbal. It was further submitted that since the landlord has large number of properties in his possession, therefore, an application for spot inspection was also moved by the tenant-petitioner but the same was illegally rejected by the court below. It was further submitted that the lower appellate court has incorrectly held that the building in possession of the landlord on which a tower has been established is residential in nature. 6. Per contra, learned counsel appearing for the landlord-respondent has submitted that both the courts below have found that the need of the landlord is bona-fide and no serious effort was made by the tenant-petitioner to search out any alternative accommodation and that the issue of comparative hardship was also decided against the tenant-petitioner, which requires no interference by this Court. 7. I have considered the rival submissions and have perused the record. 8. 7. I have considered the rival submissions and have perused the record. 8. On perusal of record I find that the properties in possession of the landlord have been separately and specifically considered by the trial court. It was found that the landlord Arif himself is carrying on business in Shop No. 137 Purani Pasrat, Jhansi; on shop no. 305 Sarafa Bazar, Jhansi elder son of the landlord Tariq is carrying on business in the name of Tariq Poultry and this fact was admitted by the landlord himself that after this shop no. 305 was got vacated from another tenant his elder son Tariq is carrying on his business. 9. Insofar as House No. 161/1 Mukaryana, Jhansi is concerned, it was found that in the aforesaid property one person Md. Iqbal is in possession and no 'tal' is existing thereon. It was noticed by the trial court that the tenant has stated in his affidavit paper no. 25(a) that Iqbal is a man of Arif in whose favour forged documents have been prepared and this shop is available to the landlord. While considering this aspect the trial court noticing the additional written statement, wherein it was asserted by the tenant that the younger son of the landlord namely Aamir is also known as Md. Iqbal held that thus, it is clear that a contrary and unstable stand has been taken by the tenant, on one hand, by saying that Iqbal is the tenant and on the other hand, by saying that younger son of the landlord is also known as Iqbal. It is also in dispute that this is a residential house of the landlord and therefore, this residential house cannot be treated to be available to the landlord for establishing his son in business. This finding was affirmed by the lower appellate court, I do find any perversity in the finding so arrived at by the courts below so as to warrant interference of this Court under Article 226 of the Constitution of India. 10. This finding was affirmed by the lower appellate court, I do find any perversity in the finding so arrived at by the courts below so as to warrant interference of this Court under Article 226 of the Constitution of India. 10. Insofar as comparative hardship is concerned, the need of the landlord has been established to be bona-fide and genuine and has also come on record that no effort was made by the tenant to search out any alternative accommodation although it was asserted that he has moved an application before the rent control authorities for allotment of shop, however the evidence in this regard was produced before the court below. In such view of the matter, decision taken on comparative hardship, which was affirmed in appeal, also does require any interference by this Court. 11. Insofar as the submission of learned counsel for the petitioner regarding rejection of application for spot inspection is concerned, suffice to say that it is the settled law that the commission cannot be taken for the purpose of collecting evidence on behalf of either of the parties. The purpose of local inspection or commission by the court is only to enable the court to arrive at a just conclusion, whereon the evidence given by the parties, court is able to arrive at a just conclusion either way that there is some ambiguity in the evidence, which can be clarified by making local spot inspection or commission. Thus, I do find that there was any illegality in rejecting the spot inspection. 12. Thus, findings on both the issues are concurrent in nature and this Court does find that the findings are perverse in nature or suffers from any jurisdictional error and therefore, no interference is required by this Court under Article 226 of the Constitution of India. 13. Present petition is devoid of merits and is accordingly dismissed. 14. 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 30.6.2018. (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. (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. 500/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.6.2018 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 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 shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.