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Mohd Arif v. Iii A.D.J. & Others - WRIT - A No. 7432 of 1989  RD-AH 11264 (5 July 2007)
Civil Misc. Writ Petition No.7432 of 1989
Mohd. Arif Vs. III Additional District Judge, Pilibhit
Hon'ble S.U. Khan, J.
Heard learned counsel for the parties.
This writ petition was allowed by me on 04.10.2005. The said judgment was reported in 2005 (2) ARC 793 Mohd. Arif Vs. A.D.J.. Paras No.1 & 2 of the said judgment, which contained necessary facts, are quoted below:-
"This is landlord's writ petition arising out of eviction/release proceedings initiated by him against tenant Rameshwar Dayal since deceased and survived by respondents 3 to 9 on the ground of bonafide need under Section 21 of U.P. Act No.13 of 1972 in the form of P.A. Case no.9 of 1984. Prescribed Authority/Munsif, Pilibhit through judgment and order dated 10.5.1985 dismissed the release application against which petitioner filed R.C. Appeal No.35 of 1985 which was also dismissed by IIIrd Additional District Judge, Pilibhit on 12.1.1989 hence this writ petition.
Property in dispute is a shop purchased by the petitioner on 21.10.1980 and release application was filed by him after serving six months' notice. In the release application it was stated that landlord petitioner was doing business of selling paan (Betel leaves) alongwith his father and he wanted to establish his independent business. The tenant filed written statement and pleaded therein that a shop of Nagar Palika was in tenancy occupation of the father of the landlord and landlord was doing business from the said shop alongwith his father (para-2 of the judgment of the Prescribed Authority and para-3 of judgment of the lower appellate court). The Prescribed authority had also held that notice was not valid. This point was reversed by the appellate court. The appellate court in para-17 of its judgment held that as additional evidence, documents pertaining to O.S. no.40 of 1984 Mohd. Arif Vs. North East Railways and others had been filed which proved that in the shop which was let out by Municipal Board to the father of the landlord, only landlord was carrying on business as the said suit pertained to damages for loss of consignment which was meant for the business carried out from the said shop. Lower appellate court concluded that in case father of the petitioner was carrying on the business from the said shop then he should have been plaintiff in O.S. No.40 of 1984"
In Para-7 of the earlier judgment after placing reliance upon several authorities of the Supreme Court, I held that even if release application of the landlord had been rejected by both the courts below and the High Court found both the judgments to be erroneous in law, it was not always necessary to remand the matter and High Court itself could grant final relief. Para-7 of may earlier judgment is quoted below:-
"When both the courts below have rejected the release application of the landlord and judgments are found to be erroneous in law by writ court, matter is normally remanded. However, that formula is not to be necessarily followed in every case particularly when the matter is pending for long. Release application in the instant case was filed in the year 1984 and this writ petition is pending since 1989. The Supreme Court in AIR 2002 S.C. 200 G.C. Kapoor Vs. N.K.Bhasin allowed the release application out rightly which had been rejected by the Prescribed authority, lower appellate court as well as High Court. In my opinion it is a fit case where ultimate relief shall be granted to the landlord. Supreme Court has also held in 2004 A.C.J. 304 (SC) R.E.V. Gounder Vs. V.V.P. Temple and 2002 (2) A.R.C. 298 (Supreme Court) R.C.Kesharwani Vs. Dwarika Prasad that when the matter is pending for long, remand must be avoided. Supreme Court in its authority reported in Shail Vs. Manoj Kumar 2004 A.C.J. 1213 placing reliance upon Surya Dev Rai Vs. R.C. Rai 2003 (6) S.C.C. 675 has held that in exercise of writ jurisdiction High Court has the jurisdiction also to pass itself such a decision or direction as the inferior court or tribunal should have made."
The above view is reiterated. It may be mentioned that earlier I dismissed some such writ petitions of landlords, which were directed against concurrent judgments of both the courts below dismissing the release application on the ground of bona fide need and permitted the landlords to file fresh release application. I used to pass such orders on the ground that normally when all the courts below have rejected release application, final relief cannot be granted by the High Court and by maximum High Courts in exercise of writ jurisdiction can remand the matter. One of my such judgments has recently been reversed by the Supreme Court, which is reported in Ram Kumar Barnwal Vs. Ram Lakhan, 2007 AIR SCW 3250. Para-4 of the said authority is quoted below:-
"Learned counsel for the appellant submitted that the approach of the High Court is clearly erroneous. It is settled position in law that subsequent events can be taken note of. The High Court, even though referred to the relevance of the subsequent events erroneously came to the conclusion that even if the judgment and order passed by the courts below are erroneous in law, the matter will have to be remanded to the Prescribed Authority. There is no such requirement in law. In fact, after noticing that the release application was filed about quarter of century back, it is really unfortunate that the High Court instead of deciding the matter dismissed the writ petition granting liberty to file fresh release application. In other words, instead of shortening litigation the High Court's order would mean unnecessary prolongation of litigation."
In the instant case both the courts below found that either with the father or with the son, a tenanted shop was available. First of all, a tenanted shop with the landlord cannot be taken into consideration while deciding his bona fide need vide AIR 2000 SC 656 "G. Kaushalya Devi v. Ghanshyamdas" and AIR 2002 SC 2572 "Dhannalal v. Kalawatibai." Secondly Supreme Court has repeatedly held that landlord and every adult member of his family is entitled to have separate, independent business and they cannot be compelled to carry on or participation in the joint/family business vide AIR 2003 SC 780 "Sushila v. IInd Addl. District Judge, Banda" and AIR 2003 SC 532 "Akhileshwar Kumar v. Mustaqim."
Learned counsel for the tenant-respondent has vehemently argued that landlord has at least got one shop in which he is carrying on business along with his father while tenant has got no other shop. It was further argued that what was pleaded and proved by the landlord was mere desire and not bona fide need. In this regard, two authorities have been cited. One is reported in Ram Dass Vs. Ishwar Chander and others, 1988 (3) SCC 131. The other is reported in T. Sivasubramaniam and others Vs. Kasinath Pujari and others, 1999 (7) SCC 275.
In the instant case, landlord asserted that he desired and intended to establish a business separate from his father. Learned counsel for the tenant respondent has not been able to point out that there is any other shop available to the landlord petitioner to run his independent business. In view of this, it cannot be said that landlord has got no bona fide need and what has been asserted by him is a mere desire.
As far as comparative hardship is concerned, rent of the shop in dispute is highly inadequate, i.e. only Rs.22.50/- per month, which is virtually no rent. By paying highly inadequate rent, tenants must have saved a lot of money. Money saved is money earned. Tenants could therefore very well arrange an alternative shop. Absolutely no efforts were made by the tenants for making arrangements of any alternative shop. Supreme Court in AIR 2003 SC 2713 "Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada" has held that if tenant does not make any effort to purchase or take on rent an alternative accommodation after filing of the release application, then balance of hardship tilts against him.
Accordingly, writ petition is allowed. Both the impugned orders are set aside. Release application filed by landlord petitioner is allowed.
Tenants-respondents are granted six month's time to vacate provided that:-
1. Within six weeks from today tenants-respondents file an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landlord-petitioner.
2. For this period of six months,which has been granted to the tenants-respondents to vacate, they are required to pay Rs. 4500/- (@ Rs. 750/- per month) as rent/damages for use and occupation.
Tenants have already deposited Rs.20,000/- under interim order 14.05.2007 passed on rehearing application. Out of this amount of Rs.20,000/-, the aforesaid amount of Rs.45,00/- shall at once be paid to the landlord. It is further directed that if shop in dispute is not vacated on the expiry of six months, then tenants shall be liable to pay damages @ Rs.1500/- per month since after expiry of six months till actual vacation. The said amount (or part thereof) shall also be paid out of Rs.20,000/- deposited by the tenants as aforesaid. The remaining amount (if any) shall be refunded to the tenants after they vacate the shop in dispute.
In case no undertaking is filed within six weeks then tenants-respondents shall be evicted through process of Court after six weeks.
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