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2018 DIGILAW 785 (ALL)

MUNNI BEGAM v. NAWAB KHAN

2018-04-03

SANGEETA CHANDRA

body2018
JUDGMENT : Mrs. Sangeeta Chandra, J. This Application has been filed under Article 227 of the Constitution of India praying for setting aside the order dated 26.10.2011 passed by Additional District Judge, Court No. 7, Kanpur Nagar and for a direction to the respondents not to evict the petitioner from rental accommodation House No. 77/127, Coolie Bazar, Kanpur Nagar. 2. Learned counsel for petitioner has submitted that the petitioner is a tenant of certain portion of the House No. 77/127, Coolie Bazar, Kanpur Nagar comprising of one room, one Verandah and a common latrine and bath-room along with a courtyard. 3. Initially, landlord of the petitioner was one Ashia Khatoon. On 25.05.1997 Ashia Khatoon executed a sale deed of the disputed premises in favour of respondent Nawab Khan and his wife and thereafter, the respondent became landlord of the petitioner-tenant. In the sale deed it was mentioned that the petitioner was tenant at the rate of Rs. 15/- per month. The new landlord i.e. the respondent gave a notice under Section 21(1) (a) of the U.P. Act No. 13 of 1972 asking the petitioner to vacate the premises on the grounds of bonafide need and on 08.12.1999 the respondent filed a Rent Case No. 49 of 1999: Nawab Khan and another v. Smt. Munni Begam before the Prescribed Authority, the VIth Additional City Magistrate, Kanpur Nagar. 4. In the said Application the landlord has stated that he purchased the premises in question which are more than 100 years old and now, in a dilapidated condition. After the exchange of pleadings the Prescribed Authority, Civil Judge, Kanpur Nagar rejected the Release Application by his order dated 20.07.2015. Aggrieved by the said order dated 20.07.2015 the respondent filed a Rent Appeal No. 55 of 2015. 5. The Appellate Court without correctly appreciating the facts set aside the order dated 20.07.2015 and directed the petitioner to hand over the possession of the rented accommodation to the landlord. 6. It has been submitted by the learned counsel for petitioner that before the aforesaid Release Application was filed before the Prescribed Authority the landlord had filed a SCC Suit No. 215 of 1999 for ejectment and recovery of arrears of rent, which was decreed ex-parte. The petitioner's Revision No. 260/74 of 2016 was rejected on the ground of delay alone. It has been submitted by the learned counsel for petitioner that before the aforesaid Release Application was filed before the Prescribed Authority the landlord had filed a SCC Suit No. 215 of 1999 for ejectment and recovery of arrears of rent, which was decreed ex-parte. The petitioner's Revision No. 260/74 of 2016 was rejected on the ground of delay alone. The order passed by the Judge, Small Causes Court and the order passed by the Additional District Judge, Kanpur Nagar were challenged in an Application under Article 227 of the Constitution of India numbered as 4428 of 2017: Smt. Munni Begam v. Nawab Khan and another. This Court on 18.09.2017 allowed the said petition and set aside the judgment and orders dated 18.04.2017 and 11.03.2014 and remanded the matter before Judge, Small Causes Court for consideration afresh. The said SCC Suit is still pending and in the meantime this Release Application was moved by the landlord under Section 21(1) (a) and (b) of the Act, in which the landlord has stated that he required the premises in question and also that the disputed rental portion is in a dilapidated condition. 7. It has been submitted by the learned counsel for the petitioner that the learned Trial Court had rightly observed that the respondent has bought the only one small portion of the disputed property i.e. one room covered by tin-shed and an open courtyard and the petitioner was in possession of two rooms. One room was in the ownership of one Mohd. Shami through a family partition entered into by Ashia Khatoon and her family members. Therefore, the Prescribed Authority has rightly concluded that the Release Application was on misrepresentation of correct facts and the landlord could not establish the relationship of landlord and tenant between himself and petitioner. 8. The learned counsel for petitioner has placed reliance upon certain portions of the order passed by the Lower Court below wherein the Lower Court below has observed that respondent's Application for genuine and bonafide need is inadmissible looking into the fact that the respondent had constructed three rooms along with bathroom and latrine in the disputed half of the premises owned by him, During the pendency of the Release Application and his need for large family, therefore, stood fulfilled. 9. 9. The learned counsel for respondent, on the other hand, has pointed out that the judgment rendered by this Court in Misc. Petition under Section 227 No. 4428 of 2017 dated 18.09.2017 was later on corrected on an Application being moved by the respondents and the corrected order has been filed as Annexure to his counter affidavit. The matter has been remanded to the Judge, Small Causes Court only to give a finding afresh with regard to the arrears of rent and not with regard to the bonafide need. The corrected order dated 09.10.2017 has deleted the words “or the bonafide need of the plaintiffs-respondents” and therefore, the pendency of the SCC Suit before the Judge, Small Causes Court would in no manner affect the jurisdiction of the Prescribed Authority under Section 21(1) (a) and (b) of the U.P. Act No. 13 of 1972. 10. The learned counsel for respondent has read out the relevant portion of the order passed by the Appellate Court with regard to the establishment of relationship of landlord and tenant between the petitioner and respondent and also with regard to the bonafide need of the respondent looking into his large family having to confine themselves only to a small portion of the property in dispute. 11. Having heard the counsel for the petitioner and the counsel for respondent and having gone through the order passed by the Appellate Court in Rent Appeal No. 55 of 2015 this Court does not find any factual or legal infirmity therein to show interference under Article 227 of the Constitution of India. 12. Accordingly, the Application under Article 227 is dismissed. 13. No order as to costs.