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DR. M. NAQI versus IV TH ADJ

High Court of Judicature at Allahabad

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Dr. M. Naqi v. Iv Th Adj - WRIT - A No. 6990 of 1985 [2006] RD-AH 3906 (20 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Reserved)

Civil Misc. Writ Petition No.6990 of 1985

Dr. Mohd. Naqi Vs. IVth A.D.J., Gorakhpur and others

AND

Civil Misc. Writ Petition No.11290 of 1985

Hakeem Wasi Ahmad Vs. IVth A.D.J., Gorakhpur and others

Hon.S.U.Khan, J.

Hakeem Wasi Ahmad (since deceased and survived by legal representatives) was landlord of the accommodation in dispute which is in the form of two shops rent of which is Rs.20/- per month.  Dr. Mohd. Naqi is the tenant of the said shops.  Landlord filed release application against tenant in respect of the shops in dispute on the ground of bonafide need of his sons under Section 21 of U.P. Act No.13 of 1972 in the form of P.A. case no.30 of 1980 before Prescribed authority, Gorakhpur.

In the release application it was stated that landlord was doing practice in Unani Medicines from a portion of his residential house and Mohd Ahmad his eldest son had also passed course of Unani Medicines from Aligarh Muslim University and the shops in dispute were required for establishing clinic for Mohd Ahmad. It was also pleaded that for want of accommodation Mohd Ahmad was sitting alongwith his father in his clinic, which was being run from the residential house.  It was also stated that Mohd Akmal the second son of the landlord was doing business from a tenanted shop and his third son Matiullah was also doing five years Unani Medical course from Aligarh Muslim University.  It was also stated that the other two sons were studying in school.  Landlord also stated that he had nine daughters out of whom three had been married.  In the release application it was specifically pleaded that the shops in dispute numbered as 1 and 2 were required for opening clinic for Mohd. Ahmad.  It was also stated that tenant Dr. Mohd. Naqi was a homeopathic Doctor and was running his clinic from the shops in dispute.

Prescribed authority through judgment and order dated 25.9.1982 allowed the release application in part. Only one shop was released and landlord was directed to file his choice of the shop.  Against the judgment and order dated 25.9.1982 both the parties filed appeals.  Tenant's appeal was numbered as Misc. Appeal no.427 of 1982 and landlord's appeal was numbered as Misc. Appeal No.434 of 1982.  IV A.D.J., Gorakhpur through judgment and order dated 20.5.1985 dismissed both the appeals.  It appears that before the Prescribed authority landlord had given conditional choice for shop no.2 hence appellate court confirmed the order passed by the Prescribed authority releasing shop no.2 in favour of the landlord.  Against the aforesaid judgment of the appellate court both the parties have filed these writ petitions Tenant's dispossession has been stayed by order passed in his writ petition.

In the rejoinder affidavit it was stated that  one of the sons of original landlord had been employed in Public Health Center.  On that point parties were directed to file supplementary affidavit.  On behalf of landlord Supplementary counter affidavit was filed on 8.11.2005.  In the said Supplementary counter affidavit it was stated that Matiullah for want of any proper accommodation to run his clinic temporarily got employment in public health center where he was still not permanent and as soon as his services were discontinued he would start private medical practice.

It also appears that during pendency of writ petition landlords reconstructed their house in 2004-05 and in the reconstructed portion some shops were also constructed by them, which were let out to other tenants and some were occupied by grandsons of Hakeem Wasi Ahmad the original landlord.  These allegations have been made in the supplementary affidavit sworn on 15.4.2005 filed by tenant in the second writ petition.  In the supplementary counter affidavit filed in the first writ petition on 8.11.2005 it has been stated that no room of newly constructed building was available to Dr. Mohd. Ahmad therefore, he started his medical practice in khaprela dalan of his residential house adjacent to the shop in dispute.

In the supplementary affidavit filed by the tenant in the second writ petition it has been stated that eight shops have been constructed by the landlords and all have been let out or occupied except one.

Construction of about eight shops during pendency of writ petition (which has not substantially been denied) is such an important fact that it will have to be taken into consideration by the writ court. I have decided this point in Diptee Singh Vs. A.D.J 2006 ALR 418; 2006(1) ARC 157 after considering several authorities of the Supreme Court.

Accordingly I am of the opinion that the need of the landlord in fact existed when release application was filed and decided by the courts below however it stands satisfied due to construction of eight shops in 2004-05.

Accordingly first writ petition filed by the tenant is allowed and second writ petition filed by the landlord is dismissed. The resultant position is that release application of the landlord for both the shops stands dismissed.

Supreme Court in A.K.Bhatt Vs. R.M.Shah AIR 1997 SC 2510 has held that if due to subsequent developments release order is set-aside then reasonable rent/ damages may be directed to be paid by the tenant even for the period during which matter remained pending in the court and dispossession of the tenant remained stayed.

I have held in Khursheeda Vs. A.D.J 2004(2) ARC 64 and H.M.Kichlu Vs. A.D.J 2004(2) ARC 652 that while granting relief to the tenant against eviction in respect of a building covered by Rent Control Act or while maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent.

Accommodation in dispute consists of two shops situate in Gorakhpur which is quite an important city of Uttar Pradesh. Existing rent of Rs. 20/- per month is virtually as well as actually no rent.

Accordingly, it is directed that since 1.1.1986 till 31.12.1995 tenant shall be liable to pay rent to the landlord at the rate of Rs. 200/- per month. With effect from 1.1.1996 till February 2006 tenant shall be liable to pay rent to the landlord at the rate of Rs. 300/- per month. With effect from March 2006 onwards, tenant shall pay rent to the landlord at the rate of Rs. 750/- per month. Arrears of rent till February 2006 at the above rates after deducting the rent paid on the old rate shall be paid by the tenant to the landlord in 36 equal monthly installments along with the current rent. First installment being payable along with the rent of March 2006 to be paid by 7th of April 2006. For the subsequent 35-month's arrear shall be paid along with current rent by 7th of each succeeding month. In case of two defaults this judgment shall stand vacated, tenant's writ petition shall stand dismissed and landlord's writ petition shall stand allowed. (This direction is being issued in view of the fact that exactly similar direction was issued by the Supreme Court in the aforesaid authority of A.K.Bhatt).

Waqar/RS

20.2.2006

                         


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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