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2020 DIGILAW 1194 (ALL)

Laxmi Prasad v. District Judge Sultanpur

2020-10-07

IRSHAD ALI

body2020
JUDGMENT : 1. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Mohd. Aslam Khan, learned counsel for the petitioner, learned Standing Counsel appearing for respondent no.1 and Sri M.A. Rizvi, Advocate holding brief of Sri S.K. Mehrotra, learned counsel for the respondent no.2. 2. By means of the present writ petition, the petitioner has prayed for the following reliefs: (i) That the judgment dated 4.9.2008 (Annexure no.7) passed by opposite party no.1 may kindly be set aside. (ii) That the cost of the petition be awarded to the petitioner against the opposite parties. (iii) That such other order or directions be passed which may appear to be just and proper under the facts and circumstances of the case. 3. Facts of the case are that the dispute pertains to a shop situated on the ground and first floor of House No.231 (Old No.215) in Mohalla Majorganj, Sultanpur City. The opposite party no.2 is tenant of a room on the ground floor and first floor on a monthly rent of Rs.51/-. It was the case of the petitioner in the application for release that in a suit for partition between him and Smt. Shanti Devi which was decided vide judgment dated 28.3.1986 by this Court, eastern half portion of House No.231 was allotted in his share, while western half portion was allotted to Smt. Shanti Devi, as a result whereof, eastern portion of House No.215 was renumbered as 231, while western portion as 230 in the Municipal Records. It was also stated that the opposite party no.2 owns and possesses two big houses i.e. House No.1273 situated in Mohalla Khairabad on Sultanpur-Allahabad Highway and House No.525 situated near Shahganj Crossing, Sultanpur City. The said house is three storied building in which there exists five shops on the ground floor which were let out by the opposite party no.2 on higher rent. The application for release of the shop in occupation of the opposite party no.2 was filed on the ground of bonafide need. The application was contested by the opposite party no.2 admitting the petitioner to be landlord and further, he is carrying on Sharrafa business since long and has four sons and five daughters who are engaged in the business. The petitioner in order to prove his bonafide need, filed affidavits of his witness, likewise the opposite party no.2. The application was contested by the opposite party no.2 admitting the petitioner to be landlord and further, he is carrying on Sharrafa business since long and has four sons and five daughters who are engaged in the business. The petitioner in order to prove his bonafide need, filed affidavits of his witness, likewise the opposite party no.2. The petitioner thereupon filed rejoinder affidavit (Annexure No.4) and in paragraphs 6 and 7, he had given the details of the accommodations owned and possessed by the opposite party no.2. The petitioner had also filed large number of documents through list, copy of which has been annexed as Annexure No.5. The Prescribed Authority, on a consideration of entire facts and circumstances of the case as well as law applicable thereto, allowed the application holding that the need as set up by the petitioner for his married daughter, whose husband is unemployed and is unable to maintain his family, held that the application is maintainable in view of the law propounded by this Court in the case of Jagdish v. VIIth Additional District Judge, Sultanpur and others as well as 1998 (1) ARC 288 (Smt. Kanti v. Additional District Judge and others) as the need as set up is bonafide and genuine. On a comparison of the respective hardship of the parties, it was held that it is the petitioner who would suffer great hardship than that of the opposite party no.2. The application was accordingly allowed vide judgment dated 31.5.2007 (Annexure No.6). The Prescribed Authority had also awarded two years’ rent at the rate of Rs.50/-per month and granted two months time to deliver the possession to the petitioner. Aggrieved by the aforesaid judgment, the opposite party no.2 filed an application under Section 22 of the Act before the District Judge which was numbered as RCA No.2 of 2007. The Appellate Court affirmed the findings of the Prescribed Authority after relying upon the judgment of the Apex Court that the application made by the petitioner for release of the premises for the need of daughter and son-in-law is maintainable and the Court cannot direct the landlord to get a particular premises released. It was further held that in so far as the petitioner is concerned, he had established his bonafide need to release the first floor but he could establish his bonafide need in respect to the shop situated on the ground floor. It was further held that in so far as the petitioner is concerned, he had established his bonafide need to release the first floor but he could establish his bonafide need in respect to the shop situated on the ground floor. While comparing respective hardship of the parties, though it has been observed by the Appellate Court that no efforts have been made by the tenant to find out an accommodation, though proceedings are pending for the last seven years as has been held by this Court, hence he could not object the application for release of the premises made by the petitioner in view of the law laid down in the case of Jagdish Tiwari v. Smt. Asha Devi Mishra and others reported in 2005 ACJ 1250. After recording the aforesaid findings, the Appellate Authority partly allowed the appeal and passed an order of release in respect to first floor of the shop while rejecting the application for release of the shop situated on the ground floor vide judgment dated 4.9.2008. Being aggrieved by the aforesaid judgment dated 4.9.2008 passed by the Appellate Court, the landlord filed the above-noted petition. 4. It has been contended by Sri Mohd. Arif Khan, learned Senior Counsel that after holding that the application for release made by the petitioner is maintainable but he had failed to consider that during a span of seven years during which proceedings for release were pending, no efforts have been made by the opposite party no.2 to search out an alternative accommodation and further various shops owned and possessed by the opposite party no.2 which were in occupation of several tenants and were vacated from time to time, the same were not allowed to be occupied by him, rather he had let out those shops on higher rent which is evident from the assessment register filed as Annexure Nos.8 to 10 to this petition. 5. It has further been argued by learned counsel for the petitioner that in view of the averments made in paragraphs 15 of the written statement (Annexure No.2), the business is being carried out by Bindeshwari son of opposite party no.2 which is incorrect as he is carrying on his business of sale of Silver and Gold ornaments in the name and style of "Anchal Jewellers" from a shop situated in Baba Purushottam Complex, Rhata Gali, Sultanpur City. The opposite party no.1 while partly allowing the application for release in respect to first floor of the shop, ignored the ample evidence on record that the son of the opposite party no.2 aforesaid is carrying on his business not from the shop but from other premises and further various shops owned and possessed by the opposite party no.2 were let out from time to time, after same were got vacated from the tenants on higher rent, hence while considering the bonafide need of the landlord, the need of the tenant would not be considered. 6. It has further been contended by learned counsel for the petitioner that so far as the first floor of the shop in dispute is concerned, which is in occupation of the opposite party no.2, there is no staircase outside the shop in dispute to approach first floor, rather a person can approach the first floor by entering into the shop situated on the ground floor. 7. It has also been contended by learned counsel for the petitioner that the opposite party no.2 filed his counter affidavit and thereafter a rejoinder affidavit was filed by the petitioner, whereupon he filed supplementary counter affidavit. 8. Learned counsel has placed reliance upon the judgment of this Court in the case of Jagdish v. VIIth Additional District Judge, Sultanpur and others reported in 2006 (1) ARC 288, wherein this Court has held in paragraph 5 as under: " In my opinion view of the appellate Court that after marriage of his daughter landlord could no more seek release for the need of his daughter is erroneous in law. The fact that son-in-law of landlord is also disabled was rather additional circumstances to release the shop in dispute." 9. Learned counsel for the petitioner has also placed reliance upon the judgment rendered in the case of JagdishTiwari v. Asha Devi Mishra reported in 2005 ACJ 1250, wherein this Court while considering the comparative hardship, has held in paragraph 4 as under: "4. I am afraid that in view of the law laid down by the Apex Court, in Ranjeet Singh v. Ravi Prakash, MANU/SC/0243/2004 : 2004(2) AWC 1721 (SC) : (2004) 3 SCC 682 . It is not permissible for this Court to reappraise the evidence on record to arrive at the different conclusion than what has been arrived at by the appellate authority. It is not permissible for this Court to reappraise the evidence on record to arrive at the different conclusion than what has been arrived at by the appellate authority. Learned counsel for the petitioner thereafter submitted that the findings arrived at by the appellant authority with regard to bona fide need are perverse and deserve to be set aside but has failed to demonstrate that the findings arrived at by the prescribed authority either suffer from any error much less manifest error of law or are perverse. Learned counsel for the petitioner thereafter submitted that the appellate authority has not dealt with the question of comparative hardship and summed up only in one small para that the need of the landlady cannot be brushed aside merely on the ground that if the application is allowed, tenant will suffer hardship of eviction. In view of the law laid down by this Court in the case of Sanjay Kumar (supra), in my opinion, the view taken by the appellate authority is correct. So far as the comparative hardship is concerned there is yet another reason since after filing of the release application the tenant has made no effort to find out any alternative accommodation therefore, in view of the law laid down by this Court in N.S. Dutta and Ors v. VIIth Additional District Judge, Allahabad and Ors., 1984 ARC 113, the petitioner cannot object to the release of the accommodation by saying that he will suffer more hardship than that of landlord." 10. Per contra, learned counsel for the opposite party no.2 contends that the finding recorded by the court below that the landlord has not come with clean hands is itself sufficient to reject the release application, as done by the court below with respect to release for landlord’s daughter. Per contra, learned counsel for the opposite party no.2 contends that the finding recorded by the court below that the landlord has not come with clean hands is itself sufficient to reject the release application, as done by the court below with respect to release for landlord’s daughter. In support of his contention, he relied upon the judgment of this Court in the case of Prabha Rani (Smt.) v. Aligarh Sarrafa Committee Sarrafa Bazar & Another reported in 2013 (1) ARC 498 : 2013 Legal Eagle 209, wherein following has been held in paragraphs 4, 5 and 6: "Both the courts below have found that on the one hand petitioner claims that her income from Sarrafa business run by her husband his hardly sufficient to meet the expenses of her family but on the other hand she has stated in the affidavit that she has enough money required for expansion of business. The Appellate Court has also found that during pendency of the matter, son of petitioner has already completed his post graduation and medical and is employed in Delhi. Her daughters have also completed their post graduate in medical and are employed elsewhere after marriage, except the youngest one, who is undergoing post graduate medical course. In these facts and circumstances, both the courts below have found that petitioner has not come with clean hands and her stand taken in application is self contradictory. 5. Learned counsel for the petitioner could not demonstrate the aforesaid findings to be perverse or manifestly erroneous warranting interference in writ jurisdiction. 6. The scope of judicial review in such matters where the orders of courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes." 11. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes." 11. Learned counsel for the opposite party no.2 next contends that the landlord has to stand on his own legs; he can get order of release in his favour only when he proves his needs as bonafide only; and he cannot derive any advantage of absence of defence of the tenant. In support of his contention, he relied upon the judgment rendered by Hon’ble Supreme Court in the case of Sudha Agarwal v. 10th ADJ and others reported in (1999) 6 SCC 332 , wherein the Apex Court held in para 5 as under: "A perusal of Section 21(1)(a) shows that a landlord can succeed in his application for eviction of a tenant if he establishes before the Prescribed Authority that his need for the premises is bona fide. Fourth proviso of Section 21(1) provides that the Prescribed Authority, while considering the bona fide requirement of the landlord has also to take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application excepting in cases provided for in explanation (i). Explanation (i) provides that where the tenant or any member of his family who is normally residing with him or wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, no objection by the tenant against an application under this sub-section shall be entertained. The aforesaid provisions extracted above show that in cases where explanation (i) is applicable no presumption can be raised with regard to the need of the landlord as bona fide. The only effect of application of explanation (i) is that the tenant is not entitled to contest the application filed by the landlord and the Prescribed Authority is not required to compare the hardship of the landlord with that of the tenant which he otherwise required to do under fourth proviso of Section 21(1) of the Act. We have noticed earlier that the landlord can get an order of release in his favour only when he proves his need as bona fide before the Prescribed Authority. We have noticed earlier that the landlord can get an order of release in his favour only when he proves his need as bona fide before the Prescribed Authority. It is no doubt true that the application of landlord is uncontested as the tenant is out of field, still the landlord has to establish his bona fide need. In fact the landlord is required to stand on his own legs and he cannot derive any advantage of absence of defence of the tenant. The proceedings before the Prescribed Authority is like a uncontested suit, where there is no defence of the defendant. In such a suit plaintiff in order to get decree must prove his case to the satisfaction of the Court. Applying the said principle to the present case, we have no doubt in our mind that, by application of explanation (i) the landlord is not discharged from the burden of proving his need as bona fide. Further we also do not find any provision in the Act creating any presumption in favour of the landlord as regard his need as bona fide." 12. Learned counsel for the opposite party no.2 next contends that the finding of fact that the need for daughter of the landlord/ respondent for the premises in the ground floor has not been held to be bonafide, being a pure finding of fact, cannot be interfered as it is based on the consideration of relevant facts and based on relevant on record. In support of his contention, learned counsel relied upon the judgment rendered by Hon’ble Supreme Court in the case of Gulshera Khanum v. Aftab Ahmad reported in 2017 (15) LCD 875 : (2016) 9 SCC 414 , wherein para 37 of the said judgment is extracted hereinbelow: "The High Court, in our view, should have seen, as was rightly held by the two courts below, that the appellant’s daughter had been running her medical clinic in shop No.7 for quite sometime. This fact was not in dispute. This fact was not in dispute. Though a feeble attempt was made by the respondent contending that after appellant’s daughter’s marriage, she has started living in Moradabad and, therefore, her need to run the clinic and expand its activity is not bona fide but this plea did not find favour with Prescribed Authority and the first appellate Court and, in our view, this being a pure finding of fact, was binding on the High Court in its writ jurisdiction." 13. Learned counsel for the opposite party no.2 has also relied upon certain other judgments which are referred hereinbelow: (i) Rajesh Agarwal v. ADJ, 8 2015 (2) ARC-228 para 13 (ii) Gaya Prasad v. Pradeep Srivastava, (2001) 2 SCC 604 paras 11&12 (iii) Deep Chandra Juneja v. Lajwanti, (2008) 8 SCC 497 para 40 (iv) Sri Ram Govil v. Smt. Maqsoodan and others, 2006 (3)ARC 416 para 27 (v) M/s Hotel Vilas and another v. Sri Anil Roy and others, 2007 (25) LCD 613 para 11 14. Next contention of learned counsel for the opposite party no.2 is that the married daughter does not come within the definition of the family as given in Section 3(g) of the Act and further, it is the duty of the court concerned as to whether part release of the commercial building will be sufficient to satisfy the need. The Appellate Court rightly allowed the appeal by partially release the first floor of the shop in dispute. The petitioner could not point out any perversity or illegality in the judgment passed by the Appellate Court, hence the petition deserves to be dismissed. 15. I have considered the contentions of learned counsel for the parties and perused the records as well as law-reports cited by learned counsel for both the parties. 16. Insofar as the maintainability of the application made by the petitioner is concerned, there is no denial of the fact that both the courts below held that the application is maintainable. Prescribed Authority as well as Appellate Authority held that no efforts have been made by the tenant to search out another alternative accommodation during the proceedings which are pending since last seven years. Prescribed Authority as well as Appellate Authority held that no efforts have been made by the tenant to search out another alternative accommodation during the proceedings which are pending since last seven years. The Prescribed Authority allowed the application for release of entire shop and the Appellate Court having failed to consider the law propounded by the Apex Court as well as this Court, laying down that no efforts have been made by the tenant to search out other accommodation, hence while considering the bonafide need of the petitioner, he could not raise any objection and on a comparison of the hardship of the parties, the petitioner would suffer great hardship than that of the opposite party no.2, more particularly when during the span of seven years, various shops owned and possessed by the opposite party no.2 were got vacated from the tenants and he had not occupied the same for his business, rather let out the same on higher rent. 17. The petitioner/ landlord had sufficiently proved his bonafide need and comparative hardship and the Appellate Authority had illegally interfered with the findings recorded by the Prescribed Authority by releasing first floor of the shop in dispute, ignoring the fact that there is way to approach the first floor, hence part release is of no avail to the petitioner. He had further failed to consider that from the ample evidence on record, it was well established that he owns and possesses various shops, hence he could not raise any objection to the application for release made by the petitioner. 18. In the case of Bega Begum v. Abdul Ahmad Khan and others reported in AIR 1979 (SC) 272 , it has been propounded by the learned Apex Court that in case of eviction, the tenant has to suffer hardship and that cannot be a ground for refusing release application. Since the opposite party no.2 owns and possesses various shops, as such he could not object the application for release made by the petitioner and further while considering the comparative hardship of the parties, it is the petitioner, who would suffer great hardship than that of the opposite party no.2 as has been held by the Prescribed Authority. Since the opposite party no.2 owns and possesses various shops, as such he could not object the application for release made by the petitioner and further while considering the comparative hardship of the parties, it is the petitioner, who would suffer great hardship than that of the opposite party no.2 as has been held by the Prescribed Authority. The Prescribed Authority has also awarded two years' rent to the opposite party no.2 and granted two months time to vacate the shop in dispute, which has incorrectly been modified by the District Judge by ordering part release i.e. first floor of the shop, ignoring the fact that the said portion cannot be used by the petitioner as stated above. For the ready reference, relevant portion of the judgment is extracted hereinbelow: "Moreover, Section 11 (1) (h) of the Act uses the words ''reasonable requirement' which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term ''need' or ''requirement' should not be artificially extended nor its language so unduly stretched or strained so as to artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word ''requirement' and pointed out that it merely connotes that there should be an element of need." 19. In view of the above, the petition is accordingly allowed. The judgment dated 4.9.2008 (Annexure No.8) passed by the District Judge, Sultanpur, partly allowing the appeal is set aside and the judgment dated 31.5.2007 (Annexure no.7) passed by the Prescirbed Authority/ Additional Chief Judicial Magistrate, Court No.17, Sultanpur is affirmed. In view of the above, the petition is accordingly allowed. The judgment dated 4.9.2008 (Annexure No.8) passed by the District Judge, Sultanpur, partly allowing the appeal is set aside and the judgment dated 31.5.2007 (Annexure no.7) passed by the Prescirbed Authority/ Additional Chief Judicial Magistrate, Court No.17, Sultanpur is affirmed. The opposite party no.2 is directed to vacate and handover vacant and peaceful possession to the petitioner within two months from the date of the order and he would also pay entire arrears outstanding to the petitioner if any, within one month from today.