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RAGHUNATH PRASAD versus HARI OM GUPTA

High Court of Judicature at Allahabad

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Raghunath Prasad v. Hari Om Gupta - WRIT - A No. 29097 of 2007 [2007] RD-AH 11427 (7 July 2007)

 

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

                                                                                          Court no. 7

Civil Misc. Writ  petition No.29097 of 2007

Raghu Nath Prasad ... Petitioner

                           Vs.

Hari Om  Gupta   ...             Respondent

Hon'ble Rakesh Tiwari, J

Heard counsel for the  parties and perused the record.

This writ petition has been filed challenging the validity and corretness of the order dated 16.4.2007 whereby the appeal filed by the petitioner was dismissed by the Additional District Judge, Agra  affirming the order dated 14.7.2007 passed by the Prescribed Authority, Agra rejecting the release application  filed under Section 21(1((a) of U.P. Act No. 13 of 1972 in respect of house no. 591/2 Sultanpura, Agra.

The case of the  petitioner is that he is owner and landlord of house no. 591, Gupta Niwas Sultanpura, Agra Cantt. Agra and respondent is tenant in one shop no. 591/2 in the aforesaid house on monthly rent of Rs.150/- besides water tax, house tax and electric charges.

A notice for terminating tenancy was given to the respondent but he did not vacate the aforesaid shop, hence the petitioner filed release appliation under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972,  before the Judge Small Causes Court/ Prescribed  Authority, Agra, which was registered as P.A. Case no. 47 of 2000. It is averred in the notice  that his eldest daughter Dr. Vipin Gupta is a practising Advocate in Supreme Court and has been separated by her In- laws since 27.11.1987 and is staying with the petitioner along with her three children at Agra. It was claimed that  in order  to establish a  chamber  for  his daughter Dr. (Mrs) Vipin Gupta at Agra the shop in question was required bonafide by him.

The  respondent  contested the release application by filing written statement dated 15.5.2001 denying the plaint allegations stating interalia, that the need of the shop in dispute by landlord Raghu Nath Prasad is not bonafide and genuine and that accommodation in dispute of house no. 591 with the landlord  is more than sufficient for his requirements. The respondent tenant also denied that he has any Joint Hindu Family tenancies at Bah and asserted that he earns his livelihood from the 'Parchun' business from the shop in dispute.

The petitioner  filed rejoinder affidavit and denied the pleadings of the written statement by establishing his bonafide need.

After taking into consideration the evidence of both the parties, the  Judge Small Causes Court, Agra rejected  the release application vide judgment dated 14.7.2006 holding that  the petitioner's daughters Smt. Nisha Maheshwari and Dr.( Mrs) Vipin Gupta are residing  with their In-laws  and have also themselves  acquired  property and that they normally do not reside with him the landlord. It was held  that the eldest daughter  of  landlord Raghu Nath Prasad Smt. Vipin Gupta who is a divorcee  practices in Supreme Court at Delhi as such the need of the shop in dispute for office of  eldest daughter who only comes to meet her parents sometimes  on Sundays is not bonafide.

Aggrieved, the petitioner preferred Rent Appeal No. 62 of 2006 which has also been dismissed vide judgment dated 16.4.2007 by the lower appellate Court, hence this writ petition.

  The counsel for the petitioner submits that the eldest daughter of the petitioner  is a divorcee and she  falls under the definition of family as defined in Section 3(g) of U.P. Act No. XIII of 1972, hence the need of the petitioner to establish office for her at Agra is genuine. The definition of  family as defined in Section 3(g) of U.P. Act N. XIII of 1972 is as under:-

"3(g) ''family' in relation to a londlord or tenant of a building, means, his or her

(i) spouse,

(ii) male lineal descendants,

(iii) such parents, grant-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male-lineal descendant, as may have been normally residing with him or her."

    He further submits that the trial Court has committed an error in holding  that the eldest daughter of the petitioner is not normally staying with the petitioner whereas the fact is that the eldest daughter though practising in Supreme Court but is regularly visiting her parents on every Saturday and Sunday and leaves for Delhi on Monday morning besides during the holidays and vacations she stays with the petitioner and her children  also  reside with the petitioner;  and that the trial Court  has failed  to appreciate that the respondent was member of Joint Hindu Family carrying business of cloth and his two sons have been doing business of books  and Newspaper.

The counsel for the petitioner then submits that the Court below has  wrongly held that the petitioner will let out the shop in question on higher rent; that it failed to appreciate that the respondent is having a lot of ancestral joint family property as such hardship will be caused to him if he is evicted from the shop in question; that the Courts below have failed to appreciate  that the petitioner has got no son and he and his wife become old and they need care and touch of his daughters, grand sons and for that reason also the eldest daughter comes to Agra on each Friday evening and resides up to Monday morning at Agra with her parents to look after them and she deals clients at Agra; and that the bonafide need and comparative hardship of the petitioner have been wrongly ignored by the Courts below by rejecting his release application and dismissing the appeal; and that the bonafide need and comparative hardship of the petitioner  were greater than the respondent.

In support of his contentions he has relied upon the following  findings of the trial Court which is as under:-

              ^^ mijksDr rF;ksa ds fo'ys"k.k ds vk/kkj ij eS bl er dk gwW fd izkFkhZ jsyos foHkkx ls lsokfuo`r gksus ds mijkUr eqcfyx 7000@& #i;as izfrekg isa'ku ikus ds lkFk iz'uxr nqwdku dh oxy esa [kkyh nqdku esa C;wVh ikjyj dk O;olk; djk jgk gS] ogha ewy  edku esa xqIrk ykt ds uke ls O;olk; dj /kuksiktZu dj jgk gS rFkk izkFkhZ dh fookfgr iqf=;kWW vius vius ifjokj ds lkFk llqjky esa jg jgh gS tks fd lkekU;r% izkFkhZ ds lkFk fuokl ugha djrh gS A ,slh fLFkfr esa ,d iq=h ftldk dh fookg foPNsn gks pqdk gS vkSj og fnYyh esa jgdj odkyr ds is'ks ls tqMh gqbZ gS dh psEcj dk;kZy; ds fy, rFkk izkFkhZ ds Lo;a ds O;olk; ds fy, iz'uxr nqdku dh vko';drk lnHkkfod ugaha gS A oghs foi{kh tks fd vius ifjokj ls vyx jgrk gS rFkk ikWp QqV lk<s lkr QqV dh nqdku esa o"kZ 1971 ls NksVh lh ijpwu dk O;olk; dj vius ifjokj dk ikyu iks"k.k dj jgk gS A vr% izkFkhZ dh vis{kk  foi{kh dh iz'uxr nqdku gsrq vf/kd ln~Hkkfod vko';drk gS A ;fn mls iz'uxr nqdku ls osn[ky fd;k tkrk gS rks rqyukRed #i ls izkFkhZ dh vis{kk  vR;f/kd dfBukbZ gksxh A

      mijksDr rF;ksa ds fo'ys"k.k ds vk/kkj ij eSa bl er dk gwW fd izkFkhZ dk izkFkZuk i= vUrZxr /kkjk 21¼ 1 ½¼,½ mRrj izns'k vf/kfu;e la[;k 13 lu~ 1972 fujLr gksus ;ksX; gS A

                        vkns'k

            izkFkhZ dh izkFkZuk i= vUrZxr /kkjk  21¼ 1 ½¼,½ mRrj izns'k vf/kfu;e la[;k 13 lu~ 1972 fo#/n foi{kh ckor fueqZfDr iz'uxr lEifRr la[;k 591@1 fLFkr lqyrkuiqjk] vkxjk dSaV] vkxjk dk lO;; [kkfjt fd;k tkrk gS A

                    g0 vLIk"V

                                            ¼  eksgu yky fo'odek½Z  

              fu;r izkf/kdkjh 1@ y?kqokn U;k;k/kh'k

                                                vkxjk

                                               14&7&2006 ^^

      The relevant finding of the Appellate Court is  as under-

        ^^vihykFkhZ us Lo;a viuh iq=h Jherh fofiu xqIrk dh ln~Hkkoh vko';drk ,oa rqyukRed dfBukbZ ds vk/kkj ij fookfnr nqdku [kkyh djus ds lEcU/k esa okn izLrqr fd;k ijUrq lk{; ls Li"V gS fd vihykFkhZ dk LokLF; Bhd ugha gS tSlk fd Lo;a mlus Lohdkj fd;k gS vkSj mldh vk;q 76 Ok"kZ ls vf/kd gks pqdh gS vkSj og O;kikj vkfFkZd ykHk ds mn~s'; ls ugha dj jgk gS] cfYd ek= vius dks O;Lr j[kus gsrq dj jgk gS] blfy, fuf'pr #i ls mls fookfnr nqdku dh ln~Hkkoh vko';drk ugha gks ldrh gS tc fd fookfnr lEifRr esa rhu nqdkus Hkh vihykFkhZ ds dCts esa gS ftlesa ls ,d esa og Lo;a vkSj mldh iRuh }kjk O;wVh ikZYkZj nwljh nqdku esa pyk;k tk jgk gS rFkk mls vius edku esa xqIrk ykt [kksy j[kk gS A tgkW rd mldh T;s"B iq=h Jherh fofiu xqIrk  dh ln~Hkkfod vko';drk dk iz'u gS Jherh fofiu xqIrk rykd  'kqnk L=h gS] ysfdu mldk Hkh fnYyh esa fuokl LFkku gS vkSj og ekuuh; mPpre U;k;ky; esa vf/koDrk ds #i esa dk;Z dj jgh gS rFkk vkfFkZd #i ls fdlh Hkh #i esa vihykFkhZ ij vkf_r ugha gS  vkSj lk{; ls ;g Li"V gS fd os dsoy jfookj o NqVh esa gh vius ekrk firk ds ikl mudh ns[k Hkky gsrq vkrh gS A

tgkW rd fofiu xqaIrk dh iq= ,oa iqf=;ksa dk nknk nknh ds lkFk fuokl dk iz'u gS] og bl ln~Hkkoh vko';drk ds vUrZxr ugha vkrh gS A vihykFkhZ dk Lo;a dk dFku gS fd mlus iathd`r o'kh;r fnukad 12&4&1999 dks vius nksuks iqf=;ksa ds uke dj nh gS] ftlls ;g Li"V gS fd vihykFkhZ Lo;a Hkfo"; esa dksbZ dk;Z ugha djuk pkgrk gS cfYd  lEifRr;ksa dks viuh iqf=;ksa dks nsuk pkgrk gS A ,slh n'kk esa Hkh mldh ln~Hkkoh vko';drk fl} ugha gksrh gS A fdjk;k u fn;s tkus ds vkifRr ds lEcU/k esa v/khUkLFk U;k;ky; us vius fu.kZ; esa ist la[;k 13 ij Li"V mYys[k fd;k gS vkSj izi= la[;k 57x@3 yxk;r 57x@4 ds voyksdu ls ;g ik;k fd foi{kh dks /kkjk 30¼1½ mRrj izns'k vf/kfu;e la[;k 13 ds vUrZxr fdjk;k tek djus dh izkFkZuk dh x;h vkSj iwoZ esa tek fdjk;s  dks  fdjk;s esa sa lfEefyr djrs gq, izkFkhZ dk lEiw.kZ /kujkf'k vkgfjr djus dh vuqefr nh x;h A bl izdkj  v/khuLFk U;k;ky; us ;g ekuk fd foi{kh }kjk fdjk;k vnk djus esa pqd dh x;h A

fuf'pr #i ls izLrqr lk{; ls ;g Li"V gS fd vihykFkhZ dh Lo;a fookfnr nqdku ds lEcU/k esa ln~Hkkoh vko';drk ugha gS rFkk mldh iq=h Jherh fofiu xqIrk gykWfd rykd'kqnk gS ysfdu og izkFkhZ ij vkfFkZd #i ls vkf+_r ugha gS vkSj gh fookfnr lEifRr esa og fuokl djrh gS blfy, mldh vko';drk dks ln~Hkkoh gksuk ugha ekuk tk ldrk gS tgkW rd rqyukRed dfBukbZ dk iz'ku gS ] vihykFkhZ@ izkFkhZ dh vis{kk foi{kh ls nqdku [kkyh djkus esa mldks vf/kd dfBukbZ gS] D;ksafd mlds ikl fookfnr nqdku ds vfrfjDr vU; dksbZ vk; dk Jksr gksuk ugha n'kkZ;k x;k gS vkSj ;g mlds ifjokj ds thou ;kiu dk ,d ek= lk/ku gS A

rF;ksa dh foospuk ds i'pkr v/khuLFk U;k;ky; }kjk tks fu"d"kZ fudkyk x;k mlesa fdlh gLr{ksi fd;s tkus dh vko';drk ugha gS A vihy fujLr fd;s tkus ;ksX; gSA

                         vkns'k

    vihykFkhZ j?kqukFk izlkn xqIrk dh vihy fujLr dh tkrh gs rFkk v/khUkLFk U;k;ky; ds fu.kZ; fnukafdr 14&7&2006 dh iqf"V dh tkrh gS A v/khUkLFk U;k;ky; dh i=koyh vfoyEc Hksth tkW; A

                                                   g0 vLi"V

                                                 ¼[kkfyn bdcky ½

                                       vij ftyk tt dksVZ ua0 17] vkxjk A^^

Both the Courts below have held that the petitioner is a retired employee of Railway department and is getting pension amounting to Rs.7,000/- per month. Besides the shop in dispute in which the respondent is running his business, the petitioner has three shops in his possession, in one shop he is doing business and in another shop his wife has opened Beauty Parlour. The petitioner is also running a Lodge in the name of ' Gupta Lodge' in his house. The Courts below have also held that the petitioner is doing the business in order to keep him busy and not for earning any profits. The eldest daughter of the petitioner Mrs. Vipin Gupta is a practising Advocate in the Hon'ble Supreme Court at Delhi and she has her residential house there. She is not dependent upon the petitioner and she comes to Agra to look after her parents on Saturdays Sundays only.  In the circumstances, the Courts below have further held that the bonafide need and comparative hardship of the respondent are greater than the petitioner and if the respondent is evicted from the disputed shop he will suffer irreparable loss and injury as he has no other source of income besides doing the business in the disputed shop.

   Moreover,  concurrent findings of facts have been recorded by both the Courts below and writ Court cannot reappriciate or re-evaluate the evidence while exercising supervisory jurisdiction in view of settled position of law propounded by Hon'ble the Apex Court in Phiroze Bamanji Desai V. Chandrakant M. Patel and others-AIR. 1974 SC-1059; Bishan Chand V. V. A.D.J. Bulandshahr and another-1982 ARC-440 and Ranjeet Singh Vs.Ravi Prakash-(2004)3 SCC-682 wherein it has been held that High Court cannot act like an appellate Court and reappreciate or re-evaluate the evidence while exercising certiorari or supervisory jurisdiction.

The respondent is earning his livelihood by running disputed Parchun shop of 7'x5'. It appears that the landlord has given his properties  by will to his two daughters as he has no son who may be wanting to oust  the tenant. The Courts below have rightly come to the conclusion that the landlord has no bonafide need for the shop in the facts and circumstances of the case and alleged need of Smt. Vipin Gupta  who has her own establishment and properties at Delhi cannot be said to be genuine and bonafide. Her need if any cannot be said to be bonafide need of Raghu Nath Prasad as she is neither dependent upon her nor normally resides with him.Her clients would be coming to her at Delhi where she is available for the whole week except when she visits her parents. The claim by Raghu Nath Prasad that his daughter needs office at Agra in the shop in dispute has been made colour to his claim as an Advocate requires spacious office for his library to deal with his client which cannot be done in a space of 7 ft.x 5 ft. which is the area of the disputed shop as it would be insufficient for accommodating even seating arrangements with a proper size of office table.

To deprive the tenant of his livelihood in the circumstances would be too harsh. Merely because the daughter of the landlord is a lawyer in Supreme Court is not enough to tilt the scales of bonafide need and comparative hardship in favour of the landlord Raghu Nath Prasad.

 For the reasons stated above, the writ petition fails and is dismissed with costs.

Dated 4.7.2007

CPP/-

 


Copyright

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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