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2018 DIGILAW 660 (ALL)

RAMAN LAL CHATURVEDI v. CHHAMA CHATURVEDI

2018-03-19

SURYA PRAKASH KESARWANI

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JUDGMENT/ORDER : Surya Prakash Kesarwani, J. Heard Smt. Rama Goel "Bansal" learned counsel for the defendant-tenant/petitioners and Sri Rahul Sahai, learned counsel for the plaintiff-landlady/respondents. 2. This writ petition has been filed praying for the following relief: "(i) Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 25. 01. 2018 passed by the Additional District Judge/Special Judge, Mathura in P.A. Appeal No. 6 of 2013 and the order dated 29.03.2013 passed by Additional Civil Judge (Senior Division), Court No. 4, Mathura in PA Case No. 32 of 2010. " 3. Briefly stated facts of the present case are that the plaintiff-landlady is the permanent resident of Mathura. Her husband Shree Kant was in service at Baroda (Gujarat). During service he died. During course of his service the plaintiff-landlady being her wife was temporary residing at Baroda. Her relatives and family members are mainly in Mathura. Since she has become widow, therefore, she decided to start a business in the disputed shop for her livelihood and also to keep her busy. Therefore, after following due procedure of law; she filed a release application under Section 21(1)(a) of U.P. Act 13 of 1972 for release of the disputed shop on the ground of bonafide need. The release application being P.A. Case No. 32 of 2010 (Chhama Chaturvedi and another Vs. Raman Lal Chaturvedi and another) was allowed by the Additional Civil Judge (S. D. ) Court No. 4, Mathura, by judgment dated 29.3.2013 and the disputed shop was directed to be vacated within two months. Aggrieved with this judgment the defendant-tenant filed a P. A. Appeal No. 06 of 2013. It appears that during pendency of the appeal the tenant Raman Lal Chaturvedi died. He was substituted by his heirs and legal representatives, namely, his wife Smt. Sudha Chaturvedi, the son Atul Chaturvedi, and daughters, namely, Smt. Ranju Chaturvedi, Smt. Poonam Chaturvedi and Smt. Payal Chaturvedi. The aforesaid appeal was dismissed by judgment dated 27. 10. 2016. Aggrieved with the said judgment the defendant-tenant/petitioner filed Writ-A No. 53810 of 2016 (Raman Lal Chaturvedi and five others Vs. State of U. P. and two others) which was allowed by order dated 5.7.2017 on the ground that the Additional evidence filed by the defendant-tenant needs to be considered by the appellate court. Consequently, the matter was remanded. 10. 2016. Aggrieved with the said judgment the defendant-tenant/petitioner filed Writ-A No. 53810 of 2016 (Raman Lal Chaturvedi and five others Vs. State of U. P. and two others) which was allowed by order dated 5.7.2017 on the ground that the Additional evidence filed by the defendant-tenant needs to be considered by the appellate court. Consequently, the matter was remanded. On remand the aforesaid P.A. Appeal No. 06 of 2013 has been dismissed by the impugned judgment dated 25.1.2018 passed by the Additional District Judge/Special Judge, Mathura. Aggrieved with the aforesaid two judgments dated 29.3.2013 and 25.1.2018, the defendant-tenant/petitioner has filed the present petition under Article 226 of the Constitution of India. 4. Learned counsel for the defendant-tenant/petitioner submits that the plaintiff-landlady has completely failed to establish that she has returned from Baroda to Mathura and that she is residing at Mathura. Thus, the plaintiff-landlady has completely failed to prove her bonafide need for the disputed shop. The defendant-tenant was suffering from paralysis and during pendency of the appeal he died. His widow is now the tenant and the disputed shop is the only source of her livelihood. The appellate court has not properly considered the additional evidences filed by the defendant-tenant to establish that the plaintiff-landlady is residing at Baroda. 5. Learned counsel for the plaintiff-landlady/respondent submits that the plaintiff-landlady is permanent resident of Mathura. It is only on account of service of her husband at Baroda (Gujarat) that she was temporarily residing at Baroda. She has never left Mathura. She is now widow. Her relatives and family members are residing mainly at Mathura. Therefore, to arrange for livelihood and also to keep her busy she wants to start business. Thus, she is in bonafide need of the disputed shop. Consequently, she filed the release application in the year 2010. In evidence she also filed tax assessments of her residential house at Mathura in which her name is shown as owner and occupant. He further submits that the defendant-tenant is in fact not doing any business in the disputed shop but has sublet it which fact has also been admitted by him in paragraph 4 of his affidavit being paper No. 11-Ga. He submits that deliberately the said paper has not been filed alongwith this writ petition. He further submits that the defendant-tenant is in fact not doing any business in the disputed shop but has sublet it which fact has also been admitted by him in paragraph 4 of his affidavit being paper No. 11-Ga. He submits that deliberately the said paper has not been filed alongwith this writ petition. He further submits that the son of the defendant-tenant/petitioner is doing service in Mumbai and thus the tenant has sufficient source for her livelihood. The tenant has also married all her daughters and thus she has no liability. The tenant has not made any effort for alternative accommodation whereas several shops are available in the vicinity and instead she merely contested the case for more than eight years and thus deprived the plaintiff-landlady/respondent to satisfy her bonafide need. He further submits that both the impugned judgments have been passed by the courts below in accordance with law. The findings recorded therein are findings of fact based on consideration of relevant evidences on record and, therefore, it can not be interfered in writ jurisdiction under Article 226 of the Constitution of India. 6. I have carefully considered the submissions of learned counsel for the parties and perused the record of the petition before me. 7. There is no dispute that the plaintiff-respondent is the owner and landlady of the disputed shop. It is also not in dispute that permanent place of residence of the plaintiff-landlady is at Mathura where she still owns and occupies a residential house as evident from the Tax Assessment by the Municipal Corporation, Mathura. Merely because her husband was doing service at Baroda (Gujarat) and on that account she used to reside temporarily at Baroda, does not mean that she has became permanent resident of Baroda. She has proved by her affidavits that she is residing at Mathura in the residential house owned by her. The occupancy of the residential house by her is proved by documentary evidence in the form of Municipal Tax Assessment in which it is recorded that she is the owner and occupier of the house. The papers filed by the defendant-tenant/petitioner in additional evidence merely illustrates that the name of the plaintiff-landlady is recorded in the voter list at Baroda (Gujarat) and her husband was having some residential accommodation there. The papers filed by the defendant-tenant/petitioner in additional evidence merely illustrates that the name of the plaintiff-landlady is recorded in the voter list at Baroda (Gujarat) and her husband was having some residential accommodation there. These evidences do not establish that she is not the permanent resident of Mathura or that she has left her residence at Mathura. It was noted in the order of the appellate court dated 27.10.2016 that the defendant-tenant has filed an affidavit 11-Ga in appeal and in paragraph 4 thereof she admitted the fact of sub-letting. This paper has not been filed alongwith the writ petition although number of other papers have been filed. Despite being asked the learned counsel for the defendant-tenant/petitioner has not shown the aforesaid paper 11- Ga. Thus, the findings recorded by the courts below on the point that the plaintiff-landlady is residing at Mathura, is a finding of fact based on consideration of relevant evidences on record. Therefore, it can not be interfered in writ jurisdiction under Article 226 of the Constitution of India. 8. The plaintiff-landlady has established her bonafide need for the disputed shop. The courts below have recorded concurrent findings of fact based on consideration of relevant evidences on record that she is in bonafide need of the disputed shop and the comparative hardship is in her favour. The defendant-tenant/petitioner could not demonstrate that the plaintiff-landlady has any other shop in Mathura to start business. Under the circumstances, I do not find any good reason to interfere with the concurrent findings of fact recorded by the courts below. 9. In view of the above discussion, I do not find any merit in this writ petition. Consequently, the writ petition fails and is hereby dismissed.