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Munni Lal Jain v. Har Prasad Gupta - WRIT - A No. 56168 of 2005  RD-AH 9224 (9 May 2006)
Civil Misc. Writ Petition No. 56168 Of 2005.
Munni Lal Jain
Har Prasad Gupta
Hon'ble Anjani Kumar, J.
This writ petition, by the petitioner under Article 226 of the Constitution of India, challenges the orders passed by the appellate authority [Special Judge SC/ST Act], Kanpur Nagar [under the provisions of U.P. Act No.13 of 1972 (in short the Act)] dated 15th April 2005 and the order passed by the Prescribed Authority/Additional Civil Judge (Senior Division) Kanpur Nagar dated 20th December 2003.
The brief facts are that respondent-landlord filed an application under Section 21 (1) (a) of the Act for release of the accommodation in dispute on the ground that the accommodation in dispute, a shop, of which the applicant-respondent is the landlord and the petitioner is a tenant, is bona fide required by the landlord as the landlord wants to settle his married son in a separate business. The tenant-petitioner filed written statement stating therein that landlord has no need of the accommodation what to say of bona fide need. The tenant has has also raised objection regarding the maintainability of the application on behalf of the landlord on the ground that so far as the knowledge of tenant is concerned, the accommodation in dispute in the House No.46/92, Chhappar Mohal, Kanpur was owned by Pandit Devki Nanadan Pandey and after the death of Pandit Devki Nandan Pandey his three sons and three daughters inherited the aforesaid property and became landlords. All the three sons and daughters are still alive. The allegation by the landlord that the accommodation in dispute has been purchased by the landlord from the heirs (sons) of Pandit Devki Nandan Pandey by a registered sale deed, therefore, it cannot be said that the landlord is the sole landlord but in fact the applicant landlord along with three sons and three daughters of late Pandit Devki Nandan Pandey are the landlords and the landlord deliberately had not impleaded the heirs of Pandit Devki Nandan Pandey, therefore, the application is liable to be dismissed on this ground alone. The tenant has also raised objection that before filing of the present application under Section 21 (1) (a) of the Act the landlord filed a suit before the Judge Small Causes on the ground that the tenant-petitioner is liable for ejectment on the ground that the tenant has defaulted in payment of rent for more than four months. This suit was ultimately decided in favour of the tenant on the ground that the tenant-petitioner is entitled for benefit of sub-section (4) of section 20 of the Act as he has deposited the entire arrears of rent on the date of hearing. The tenant has raised further objection on the ground that three years have not expired since after purchase of the accommodation in dispute by the landlord and further that no notice to this effect has been given to the tenant by the landlord as is required under Section 21 of the Act. The tenant further submitted that he is tenant for more than 60 years. They have taken on rent the aforesaid accommodation from Pandit Devki Nandan Pandey. It is further alleged by the tenant that after the death of Pandit Devki Nandan Pandey all the three sons of late Pandit Delvki Nandan Pandey, in order to evict the tenant forcibly, were conspiring which somehow came to the knowledge of the tenant who filed Suit No.5176 of 1976 in which the trial court granted an injunction ex parte and ultimately the aforesaid suit was decreed in favour of the plaintiff-tenant and the said decree has become final. The tenant, therefore, submitted that the present purchaser landlords are also bound by the said decree and they cannot evict the petitioner-tenant from the accommodation in dispute. It is also alleged by the tenant that on a holiday the landlord deliberately demolished the back portion of the accommodation in dispute and removed the entire Malba etc. for which the tenant has lodged a complaint to the local police. The said demolition was done by the landlord without permission of the appropriate authority. As a result of occupation, one shop is under the tenancy of the tenant.
On the question of bona fide the tenant denied the allegations made by the landlord and submitted that married son of the landlord is carrying on business along with the landlord from House No.46/92 Chhappar Mohal, Kanpur and that the landlord also owns another shop in the name and style of M/s Kamla Traders situate in House No.47/122 Hatiya Ban Bazar. Apart from the aforesaid accommodation the landlord runs two factories in Hata No.77/02 Koela Bazar where he manufactures hardwares. In fact the landlord earns thousands of rupees per day and he does not require any accommodation. The landlord has deliberately not referred to other business accommodations where he is carrying on business and the application is liable to be dismissed on this ground.
The prescribed Authority, after exchange of pleading of the parties and evidence, vide judgment dated 20th December 2003 has found that the applicant is the landlord of the accommodation in dispute and the plea that the landlord has not impleaded all the heirs of Pandit Devki Nandan Pandey is of no help to the tenant. The heirs of Pandit Devki Nandan Pandey have no concern with the accommodation in dispute as they have sold the same by registered sale deed in favour of the present landlord. The Prescribed Authority further found that the ex parte decree against the erstwhile landlord or the dismissal of suit filed by the present landlord which was for arrears of rent and eviction will have no effect so far as decision on the present application is concerned as learned counsel for the tenant could not demonstrate any statutory bar where the Prescribed Authority lacks jurisdiction to decide the application filed by the landlord under Section 21 (1) (a) of the Act. On the contrary since the petitioner-tenant has deposited the rent in order to get benefit of Section 20(4) of the Act in the suit which was filed by the present landlord, he cannot be permitted to take U turn and say that the present landlord is not landlord of the accommodation in question. To the objection raised by the tenant that no notice of six months has been given by the landlord before filing the present application under Section 21 of the Act, the Prescribed Authority found that a notice was given which was duly served on the tenant and landlord has purchased the accommodation in dispute by registered sale deed in the month of September 1999 whereas the present order under Section 21 of the Act has been passed by the Prescribed Authority on 20th December 2002, therefore the plea that three year's notice has not been given to the tenant is not applicable to the present case.
On the question of bona fide the Prescribed Authority has found that the son of the landlord is married and before marriage father and son both were carrying on joint business from the accommodation 46/92 Chhappar Mohal, Kanpur and he is also helping his father in the said business. The tenant could not prove that there is any other shop in possession of the landlord where the son can start a new business. The tenant has also raised the point that the shop in dispute is the only source of income of the family of the tenant which consists of husband, wife and daughters who are studying higher classes. That the tenant has earned goodwill as the shop is being run by the present tenant and the predecessors for more than sixty years. The tenant also raised the plea that he tried his best to get another accommodation in the locality allotted in favour of the tenant but neither any accommodation is available nor allotted to the petitioner-tenant. On the question of bona fide need the Prescribed Authority found that the need of the landlord to set up his married son in a separate business cannot be said to be a need which is mere a desire and is not pressing or bona fide. On the question of bona fide need the prescribed authority also recorded a finding that there no material except the allegation of the tenant that the landlord owns many other accommodation and therefore in view of law laid down by this Court in the case of Daya Shankar v. Xth Additional District Judge 1999 (2) ARC 585 and G.C. Kapoor v. Nandan Kumar and others 2001 (2) ARC 603 wherein this Court has held that need to establish son in separate business is bona fide need of the landlord. On the basis of the above discussion the prescribed authority found that need of the landlord is bona fide.
On the question of comparative hardship the prescribed authority has found that the tenant owns a house L-43 Daheli Sujanpur, Kanpur Nagar, therefore, the tilt of comparative hardship is also in favour of the landlord. It, therefore, allowed the application filed by the landlord under Section 21 (1) (a) of the Act and directed release of the accommodation in dispute in favour of the landlord.
Aggrieved thereby the petitioner-tenant preferred an appeal under Section 22 of the Act. During pendency of the appeal before the appellate authority the tenant filed three applications. All the three applications have been decided by the appellate authority against the tenant and thereafter the appellate authority heard the matter on merit. Before the appellate authority the tenant advanced the same pleas as were advanced before the prescribed authority. The appellate authority in detailed judgmet, which runs in 12 typed pages, has discussed the pleas raised by the tenant with evidence and the law laid down by this Court. After discussing the pleas advanced on behalf of the tenant the appellate authority affirmed the findings of bona fide in favour of the landlord recorded by the prescribed authority and also the findings regarding comparative hardship. Learned counsel for the petitioner has not been able to demonstrate that these findings in any way suffer from any error much less an error apparent on the face of record so as to warrant interference of this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
Before this Court learned counsel for the petitioner has laid emphasis that the orders rejecting the applications filed by the petitioner in fact amounts to denial of fair hearing by the appellate authority. I have gone through the orders passed by the appellate authority rejecting these three applications. Learned counsel for the petitioner has failed to satisfy that these orders in any way amount to denial of fair hearing to the tenant. The law relied upon by the learned counsel for the tenant before this Court for challenging the orders passed on these three applications by the appellate authority clearly demonstrates that it is in the discretion of the appellate authority to grant prayers made by the tenant in these three applications. The three orders passed by the appellate authority rejecting the applications clearly demonstrate that the appellate authority has given cogent reasons for rejecting the prayer and the learned counsel for the petitioner has not been able to demonstrate that rejection of these applications in any way effects the defence of the petitioner's case on merits.
In view of what has been stated above I find no merits in this writ petition. It is liable to be dismissed and is hereby dismissed. Interim order, if any, stands vacated.
Lastly it is submitted on behalf of the petitioner-tenant that since the petitioner is carrying on business from the accommodation in question he may be given reasonable time to vacate the disputed accommodation. Considering the facts and circumstances of the case and in the interest of justice I direct that the petitioner shall not be evicted for a period of one year from today from the accommodation in dispute on the basis of impugned order provided:
1.the petitioner furnishes undertaking before the prescribed authority within a period of three weeks from today that he will hand over peaceful vacant possession of the accommodation in question to the landlord on or before 1st May 2007;
2.the petitioner pays the entire arrears of rent/damages calculated at the rate of rent within three weeks from today, if not already paid, by either depositing the same before the prescribed authority or paying the same to the landlord-respondent and keeps on depositing the future rent/damages by first week of the succeeding month in the manner prescribed above. The amount if deposited before the prescribed authority by the petitioner-tenant, the landlord shall be permitted to withdraw the same.
In the event of default of any of the conditions mentioned above, it will be open to the landlord to get the order of eviction executed against the petitioner.
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