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Irshad Alam v. Natthu Lal - WRIT - A No. 16274 of 2007 [2007] RD-AH 11991 (16 July 2007)


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Court No. 7

      Civil Misc. Writ Petition No. 16274 Of 2007

Irshad Alam Vs Natthu Lal


       Hon'ble Rakesh Tiwari, J.

Heard learned counsel for the petitioner at the admission stage.

By means of this petition the petitioner has challenged the validity and correctness of the judgment and order dated 30.11.2006 passed by the XVIth Additional District Judge, Kanpur Nagar in Rent Appeal No. 100 of 1999, Natthu Lal Vs Irshad Alam.

The petitioner is tenant in the shop in dispute situate on the ground floor of premises no.130/8/L-A, Bagahi, Kanpur Nagar wherein the petitioner-tenant is doing the business of incense sticks (Agarbattis). The sole respondent Naththu Lal is the owner and landlord of the shop in dispute. He filed an application under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for release of the shop in dispute on the ground of bona fide need for opening medical clinic and medical store for his doctor son Dr. Anil Kumar and doctor daughter-in-law Dr. Leela.

Objection in the shape of written statement was filed by the petitioner denying the allegations and stating, inter alia, that apart from other alternative accommodations the respondent has a shop available in Halwan Khanda, ''O' Block, Kidwai Nagar, Kanpur.

The objection was replied by the respondent denying the averments made by the petitioner-tenant in his written statement.

A commission was also issued by the trial court during the pendency of the case for spot inspection about the extent of the accommodation in possession of the respondent-landlord.

The contention of the learned counsel for the petitioner is that the petitioner also brought to the notice of the trial court that he had filed an application dated 24.2.1999 supported by an affidavit in which it was stated that Dr. Anil Kumar has already been practising in 133/5, ''O' Block, Baba Devi Chauraha, Kidwai Nagar, Kanpur as well as in 336-A, Macharia Road, Kanpur. The petitioner also brought to the notice of the trial court that Dr. Leela was in service in Mariyampur Hospital, Kanpur Nagar.

The trial court vide its judgment and order dated 21.5.1999 rejected the release application holding that the son and daughter-in-law of the respondent-landlord are already settled in their medical profession as doctors and doing practice, as such the need of the respondent-landlord is not bona fide.  

Aggrieved by the judgment and order of the trial court dated 21.5.1999 the respondent-landlord filed appeal under Section 22 of the Act in which an amendment application for amending the release application was also filed. It was also brought to the notice of the lower appellate court that Dr. Anil Kumar and his wife Dr. Leela apart from their services are practising in premises no. 127/396, Vinoba Nagar, Kanpur Nagar (Kanodia Market) and that Dr. Anil Kumar is serving in Regency Hospital as a physician.

The lower appellate court after hearing the parties allowed the aforesaid appeal filed by the respondent-landlord vide its judgment and order dated 30.11.2006 which is impugned to this writ petition as Annexure 10.

The petitioner-tenant has assailed the impugned judgment and order dated 30.11.2006 on the ground that the same is unjust, arbitrary as well as against the evidence on record by ignoring the fact that the need of the respondent-landlord is false and a mere desire as he has already several accommodations in his possession wherein his doctor son and doctor daughter-in-law can do their practice. It is urged that the courts below have lost sight of the fact that Dr. Anil Kumar and his wife Dr. Leela have already been practising in 133/5, ''O' Block, Baba Devi Chauraha, Kidwai Nagar, 136/396, Vinoba Nagar as well as in 336/1, Macharia Road, Kanpur Nagar from 6.00 P.M. to 10.00 P.M. Apart from that Dr. Anil Kumar and his wife Dr. Leela are in service in Regency Hospital and in Mariyampur Hospital respectively.

It is vehemently argued by the learned counsel for the petitioner-tenant that the shop in dispute is 10 feet X 11 feet which is not suitable for the purpose of clinic for the son and daughter-in-law of the respondent-landlord, as such the courts below have wrongly decided the question of comparative hardship in favour of the respondent-landlord holding that the respondent-landlord will suffer irreparable loss and injury in case the petitioner-tenant is not evicted from the shop in dispute particularly in view of the fact that there are other shops available to the respondent-landlord.

I have perused the record. It is apparent from the record that the respondent-landlord has set up the need for his son and daughter-in-law for their practice as medical practitioners. What appears from the record is that they have to sit for short periods in different shops owned by different landlords as they do not have their own permanent clinic. It appears from the amendment application filed by the respondent-landlord appended as Annexure 9 to the writ petition that the respondent-landlord wanted to add paragraph 4-Ka after paragraph 4 to the effect that his son Dr. Anil Kumar and daughter-in-law Dr. Leela are running their clinic in a shop situate in Vinoba Nagar, Kanpur Nagar on a monthly rent of Rs. 750/-. The said paragraph 4-Ka is as under: -

"Yah Ki Is Samay Prarthi Ka Putra Dr. Anil Kumar Tatha Uski Patni Dr. Leela Makan No. 127/396, Vinoba Nagar, Kanpur Me Isthit Kanodiya Market Ke Madhya Ki Ek Dukan Jo Ki 7.5 X 16 Ft. Yani 120 Varg Feet Ki Hai Tatha Jiska Kiraya Rupaye 750/- Prati Mah Hai Lekar Apna Dawakhana Chala Rahe Hain."  

The lower appellate court held that the bona fide need and comparative hardship of the respondent-landlord is greater that that of the petitioner-tenant and the trial court committed illegality in holding otherwise. In its detailed judgment the lower appellate court came to the conclusion that the bona fide need and comparative hardship of the respondent-landlord is greater which he has been able to set up.

The conclusion drawn by the lower appellate court cannot be said to be unjust, arbitrary and against the evidence on record. The lower appellate court has in details dealt with both the questions of bona fide need and comparative hardship giving cogent reasons for arriving at the conclusion.

The learned counsel for the petitioner-tenant has raised same points which he raised before the lower appellate court and has not been able to make a dent in the reasoning given in the impugned judgment. Merely because the son and the daughter-in-law both of whom are doctors and are sitting for short periods in tenanted accommodation at different places do not in any manner extinguish their need for establishing their own clinic, rather it intensifies their bona fide need and hardship.    

After hearing the learned counsel for the parties and going through the record I am of the considered opinion that there is no illegality or infirmity in the impugned judgment of the lower appellate court. The petitioner has failed to make out a case for interference under Article 226 of the Constitution.      

For the reasons stated above, the petition is dismissed. No order as to costs.

Dated: 16.7.2007



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