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BRIJ MOHAN SAXENA versus SMT. SUDESH BERY

High Court of Judicature at Allahabad

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Brij Mohan Saxena v. Smt. Sudesh Bery - WRIT - A No. 34498 of 2007 [2007] RD-AH 13167 (31 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. 34498 of 2007

   Brij Mohan Saxena              versus      Smt. Sudesh Bery

Hon'ble Rakesh Tiwari,J.

 

              Heard counsel for the parties and perused the record.

     This writ petition has been filed for quashing the order dated 16.5.2007 passed by the Special Judge (E.C.Act) Jhansi in Rent Control Appeal No. 5 of 2006 by which the appellate Court has set aside the order dated 22.2.2006 passed by the Prescribed Authority/ Judge Small Causes Court, Jhansi whereby the  question of bonafide need and comparative hardship had been decided by it in favour of the petitioner- tenant.

    The dispute relates to House No. 467/8 Bery compound Sipri Bazar, Jhansi consisting of one room, verandah and courtyard of which the petitioner is tenant at the rate of Rs. 30/- per month.  The respondent Smt. Sudesh Bery widow of late R.K. Bery claims to be the landlord of the house in dispute.

    It appears that the landlady (in the writ petition) respondent moved an application under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972 (hereinafter referred to as the U.P. Act No. 13 of 1972) before the Prescribed Authority, Jhansi for release of the accommodation in dispute for residential purposes of her son

   The release application was contested by the petitioner tenant denying the need of the respondent landlady further stating that there are six big, two small houses and six shops in possession of the landlady which are sufficient for her need as such neither her need is genuine and bonafide nor she will suffer greater comparative hardship if the accommodation in his tenancy is not released in favour of the landlady.

 The Prescribed Authority by order dated 22.2.2006 held that there was sufficient accommodation in possession of the respondent landlady and her need was not bonafide and genuine and in case the release application is allowed, the petitioner tenant will suffer greater hardship.

Aggrieved by the aforesaid order dated 22.2.2006 the respondent landlady filed Rent Control Appeal No. 5 of 2006 in the Court of District Judge, Jhansi.

  In the mean time, an additional ground was taken by the respondent landlady that her son has got married and the relationships between her and the daughter-in-law were strained as such it has become impossible for them to live together. She also moved an application dated 28.11.2006 giving the dimension of each of the three rooms in which she was living admeasuring 10 x 8 ft.  In the application it was also averred that out of three rooms in her possession   she uses one room as temple, the other room is used by her son and daughter-in-law as bed room and she is residing in the third room; that her son is doing the business of Hardware as such he stores his goods in the verandah and the small open space; and that thus there is paucity of accommodation for her family.   Relevant extracts of the application 5 are as under:-

      ^^ 2& ;g fd ekStwnk esa izkfFkZ;k ds dCts o fuLrkj esasa ek= 3 NksVs NksVs dejs ftlesa 1 dks izkfFkZ;k crkSj iwtk ?kj eafnj bLrseky djrh gS A rFkk ,d dejk izkfFkZ;k ds yMds cgw o ukrh ds fy;s csM#e o ,d dejk izkfFkZ;k dk csM#e o [kqyh txg izkfFkZ;k dk c'kDy cjkUMk o [kqyh txg gS izkfFkZ;k ds rhuksa dejs izR;sd dh uki 10 8 QhV gS rFkk izkfFkZ;k dk bu dejksa esa fuLrkj ugha gks ikrk gS A izkfFkZ;k ds ifjokj esa  dqy pkj lnL; NksVs cPps lesr gS A

     3& ;g fd izkfFkZ;k dk iq= vius gkMZ os;j ds dkjksckj esa lkeku dks cjkenk o [kqyh txg esa j[krk gS rFkk eky ykdj lIykbZ djrk gS bl izdkj [kqyh txg esa izkfFkZ;k ds yMds dks dkjksckj lkeku vU; txu u gksus ds dkj.k LVksj djuk IkMrk gS A

     4& ;g fd izkfFkZ;k ds ikl gksfMZx]xsLV#e] Mk;fuax #e ds fy;s txg ugha gS izkfFkZ;k mPp ifjokj dh efgyk gS A o izkfFkZ;k ds ifjokj ds dkQh  fjLrsnkj gS o izkfFkZ;k ds Lo; ds dkQh fjLrsnkj gS tks izkfFkZ;k ds ?kj vkrs tkrs gS mUgsa izkfFkZ;k dks vius ?kj esa Bgjkuk Hkh iMrk gS A izkfFkZ;k dk lksly LVsVl dkQh mWpk gS A

     5& ;g fd fookfnr Hkou ua0 467@8 tks foi{kh ds dCts esa gS dh Lo;a o vius ifjokj dh fjgk;'k gsrq rqjUr o mfpr vko';drk gS A^^

The Appellate Court thereafter allowed the aforesaid application of the landlady to be taken on record on payment of Rs.100/- cost and allowed opportunity to the petitioner to file objections if any against the subsequent developments.  The petitioner filed his objection to which reply was filed by the landlady.

The Appellate Court vide order dated 16.5.2007 reversed the findings of the Prescribed Authority holding the bonafide need and comparative hardship in favour of the landlady.

   Aggrieved by the aforesaid order dated 16.5.2007 passed by the Appellate Court in Rent Appeal No. 5 of 2006 the present writ petition has been filed.

The contention of the counsel for the petitioner in this case is that the Appellate Court has allowed the application of the landlady on payment of Rs.100/- cost without objection from the petitioner.    It is also stated that the cost has not been accepted by the petitioner, hence the application could not have been taken on record.

The order dated 21.4.2007 for accepting an affidavit filed by the landlady as additional evidence on payment of Rs.100/- cost is as under:-

   "^^ 21&4&2007- Ik{kdkj gkftj izkFkZuk Ik= 17&lh ij lquk A vfrfjDr lk{; ds #Ik esa '''kiFk Ik= 100 #Ik;k gtkZ ij U;k;fgr esa Ik=koyh ij fy;k tkrk gS A okLrs  tckoh 'kiFk Ik= 1 lIrkg dk le; fn;k tkrk gS A okLrs cgl fnukad 4&5&2007 fu;r gks A

4&5&2007 vkt Ik=koyh is'k gqbZ jsLikMsUV us 'kiFk Ik= 21&lh&2  is'k fd;k A vihykFkhZ us 'kiFk Ik= 22&lh&2 is'k fd;k A vr% Ik=koyh fnukad 7&5&2007 dks okLrs cgl is'k gks A^^

 From perusal of the said order it is clear that the Appellate Court has only taken on record the affidavit filed by the landlady on payment of Rs.100/- cost and thereafter had in fact granted an opportunity by the same order to the petitioner tenant for filing objection.

The Court below after hearing the counsel for the parties on application no.17-C/2 passed the aforesaid order. Therefore, the contention of the counsel for the petitioner that the petitioner has not been given an opportunity to rebut the additional evidence is incorrect.

It appears from the record that it is not denied by the petitioner tenant that the members of the family of the landlady have increased and there are strained relations between the landlady and her daughter-in-law. The petitioner has also not submitted any map showing the extent of accommodation of three rooms in her possession and the dimension of the disputed house to rebut the map filed by the landlady along with the aforesaid application.

The contention of Sri B.N. Agarwal, counsel for the petitioner that a party cannot be allowed to prolong the matter at the stage of appeal by adducing additional evidence under Order 41 Rule 27 C.P.C. has no force. In my opinion, the case of any party should not be rejected merely on the ground of hyper technicality.  The Appellate Court has not committed any illegality in so far as question of acceptance of additional evidence is concerned.

Admittedly, the son of the respondent landlady was not married at the time when the suit was filed and the members of the family of the landlady had not increased. Later on son has got married and not only the members of the family of the landlady have increased but also relations between her and the daughter-in-law were strained. It is settled law that subsequent events can always be brought on record for doing substantial justice between the parties. The dimension of the house in which the landlady is living has not been challenged by the petitioner, hence it can not be said that the aforesaid application bringing on record the  subsequent events merely to cover up the lacuna as additional evidence. By the aforesaid application the landlady only wanted to clarify the extent of the accommodation and the dimension of the rooms in which she is living along with her family members which does not change the nature of the suit.

The Hon'ble Supreme Court in a catena of decisions has held that subsequent events must be looked into by the Court for doing substantial justice between the parties.

All these facts lead to establish that the petitioner is only holding over the accommodation in dispute with malafide intention and ulterior motives. In this view also he cannot hold over the disputed accommodation.

   As regards bonafide need the Appellate Court found that the need of the landlady was genuine and bonafide. It held that-

      ^^ mijksDr izdj.k esa loZizFke U;k;ky;ksa  dks ;g ns[kuk gksrk gS fd D;k izkfFkZ;k  dh vko';drk ln~Hkkouk ls izsfjr gS vFkok izkfFkZ;k@vihykFkhZ us fdlh nqHkkZouk o fdlh ykyp ls o'khHkwr gksdj vFkok fdlh ixMh bR;kfn dks izkIr djus vFkok fdjk;snkjhxzLr edku dks [kkyh  djkdj  mls fdjk;s ij mBkus  ds dkj.k izkFkZuki= fn;k gS vFkok izkfFkZ;k dks okLrfod ln~Hkkouk ls izsfjr fjgk;'kh LFkku dh vko';drk gS vkSj mlds mijkUr ;fn ;g foUnq izkfFkZ;k ds Ik{k esa ldkjkRed #Ik esa tkrk gS rks nwljk  foUnq rqyukRed dfBukbZ ls lEcfU/kr gksrk gS ftlesa  fd U;k;ky; dks ;g ns[kuk gS fd edku dks [kkyh djkus dk vkns'k nsus] u nsus nksuks gh ifjfLFkfr;ksa esa nksuks  Ik{kksa dks D;k rqyukRed dfBukbZ;kW gksxh vkSj ml n'kk esa U;k;ky; }kjk fu"d"kZ fy;k tkrk gS A

      tgkW rd izFke foUnq dk iz'u gS]vihykfFkZuh dh vksj ls vius '''kiFki= o la;qDr 'kiFki= ds ek/;e ls viuh vko';drk dks n'kkZ;k x;k gS fdUrq Jh c`teksgu us tks viuk izfr'kiFk Ik=  bl vihyh;  U;k;ky; esa fn;k gS  mlesa bruk rks dgk gS fd izkfFkZ;k }kjk izLrqr ekufp= xyr gS fdUrq izkfFkZ;k }kjk crk;h tk jgh vius ifjokj ds lnL;ksa dh la[;k dks foi{kh  c`teksgu us Li"V #Ik ls budkj ugha fd;k gS u gh dksbZ dejksa dh uki ds lEcU/k esa viuk tckoh uD'kk izLrqr fd;k gS vkSj blds vHkko esa ;g ekuk tk;sxk fd vihykfFkZuh us tks uD'kk izLrqr fd;k gS og lgh gS D;ksafd Li"V #I ls fdlh foUnq dk izfrokn ugha fd;k x;k gS vkSj ek= lkekU;rkSj ij izfrokn dj fn;k x;k gS tks fd fdlh Hkh izdkj ls izkfFkZ;k ds dFku dk okLrfod izfrokn ughas ekuk tk ldrk A c`teksgu dh vksj ls izfr'kiFk Ik= izLrqr gqvk gS mlesa bruk rks dgk x;k gS fd dejs NksVs NksVs ugha gS fdUrq ;g ugha dgk gS fd dejksa dh tks ukWi nh gS og xyr gS A;fn ;g ukWi xyr gksrh rks dksbZ dkj.k ugha Fkk fd Jh c`teksgu viuh vksj ls dejksa uki nsrs D;ksafd og dfFkr #Ik ls iMksl esa gh jg jgs gSa vkSj mlh dEikma.M esa fuokl djrs gS ftlesa  fd vihykfFkZuh@ izkfFkZuh  jgrh gSA Jh c`teksgu us bl RkF; ls Hkh budkj ugha fd;k fd vihykfFkZuh vkSj mldh iw=c/kw ds e/; vPNs lEcU/k u gksa vr% vkerkSj ij lkWl ,o cgw ds e/; rukoiw.kZ lEcU/k gksuk Hkh izkfFkZ;k dh ln~HkkoukRed vko';drk dks n'kkZrk gS A ;g Hkh Jh c`tekgsu us ugha dgk gS fd izkfFkZ;k dk Lrj mWpk u gksa A vr% esjs fopkj esa lgh vFkkZsZ esa  Jherh lqns'k osjh }kjk fn;s x;s 'kiFki= tks fdvihy esa vk;k gS o la;qDr 'kiFki= esa fd;s x;s dFkudk dksbZ izfrokn ugha gS vkSj fuf'pr #Ik ls ;g ,d ,slk ekeyk gS fd ftlesa fd dksbZ Hkh ,slk dkj.k izrhr ugha  gksrk gS ftlesa fd vihykfFkZuh dh vko';drk dks ln~HkkoukRed u ekuk tkW; A

  So far as comparative hardship and bonafide need is concerned, the appellate Court held that-

   ^^nwljk foUnq rqyekUred dfBukbZ dk gS ftlds lEcU/k esa Ik=koyh ij ;g lk{; dk pqdk gS fd mDr Jh c`teksgu lsokfuo`Rr gks pqds gS vkSj og viuh lsokfuo`fRr ds QyLo#Ik izhrhHkkst Hkh ns pqds gS ftldk fuea=.k vihykfFkZuh dks Hkh fn;k x;k Fkk vkSj mUgksaus viuh iq=h ek/koh dk fookg Hkh 2@51 flaxh xyh vkxjk esa fd;k Fkk vkSj ;g dkj.k Fkk fd og vius edku dk rkyk Mkys gq;s j[ks gS o vkxjk esa jgrs gS vr% ;fn mUgsa bl edku ls fu"dkflr fd;k tkrk gS rks esjs fopkj ls bu ifjfLFkfr;ksa esa mUgsa fdlh Hkh izdkj dh dfBukbZ ugha gksxh A tc fd vihykfFkZuh tks fd Loa; edku dh ekfyd gS og dfBukbZ ls viuk thou ;kiu dj jgh gS vkSj viuk edku gksrs gq;s ladqfpr rkSj ij jg jgh gS blfy;s rqyukRed dfBukbZ ds foUnq dks ns[krs gq;s vkSj bl RkF; dks ns[krs gq;s fd Jh c`teksgu us viuh vksj ls dksbZ Hkh oSdfYid LFkku <w<us dk iz;kl Hkh ugha fd;k gS] ;g  fozUnq Hkh vihykfFkZuh ds Ik{k esa tkrk gS fdUrq fo}ku voj U;k;ky; us bu lc rF;ksa ij dksbZ xkSj ugha fd;k gS vkSj ,d rF;ksa ls foijhr tkdj fUk"d"kZ ns fn;s gS vkSj izkfFkzZ;k dh ln~HkkoukRed vko';drk dks lgh ugha ekuk  gS Avr% tks  fUk"d"kZ fn;s x;s gS og fVdus ;ksX; ugha gS vkSj esjs fopkj ls izkfFkZ;k }kjk fn;k x;k izkFkZuk Ik= Lohdkj gksus ;ksX; gS vkSj ;g vihy rn~uqlkj Lohdkj gksus ;ksX; gS A

                    vkns'k

   ;g fdjk;k fu;a=.k vihy Lohdkj dh tkrh gS o izkfFkZuh dk izkFkZuk Ik= vUrZxr /kkjk 21 ¿1 �? ¿,�? ;w0ih0 ,DV la0& 13@ 1972  Lohdkj fd;k tkrk gS o izkfFkZ;k bl lEcU/k esa  nks Ok"kZ ds fdjk;s ds vuq#Ik /kujkf'k vkt ls 15 fnol  ds vaUnj foi{kh  Jh c`teksgu dks /kukns'k ds ek/;e ls izsf"kr djsxh vkSj muds }kjk ;g /kujkf'k {kfriwfrZ ds #Ik esaa Lohdkj ugha dh tkrh gS rks U;k;ky; esa tek djk;h tk ldsxh vkSj foi{kh  dks vkns'k fn;k tkrk gS fd bl fu.kZ; ls nks ekg ds vUnj foi{kh iz'uxr edku ls viuk rkyk gVk ys vU;Fkk vihykfFkZuh@ izkfFkZ;k dks vf/kdkj gksxk fd og U;k;ky; dh lgk;rk ls iz'uxr edku dk dCtk izkIr dj ysa] iz'uxr edku mld svius iz;ksx ds fy;s foeqDr fd;k tkrk gS A

                              g0 vLi"V

                           ¿  vks0ih vxzoky�?

                    fo'ks"k U;k;k/kh'k ¿bZ0lh0 ,DV�?@ vij

                           ftyk tt]{kkWlh A

                                    16&5&2007^^

  The Appellate Court has found on the basis of copy of judgment dated 21.6.2006 in Aditya Mohan Gupta Vs. Sudesh Bery passed by the Rent Control and Eviction Officer which has been produced by Smt. Sudesh Bery in respect of declaration of vacancy that the petitioner was not living in the tenanted accommodation at Jhansi but was keeping his lock in order to get ''Pagri' from the respondent landlady.  The Court has also noted the fact that the petitioner is retired from Railway and is living at Agra and not at Jhansi; that he has performed the marriage of his daughter from Agra and is also drawing his pension from Agra. In his objection the petitioner has only stated that though he off and on comes to Jhansi but he has go to Agra for the purpose of treatment of his wife. It appears that the petitioner comes off and on at Jhansi to show that he is in possession of the house in dispute. Even otherwise, it is not in dispute that his wife is also permanently residing at Agra and the key of the accommodation in dispute has been found in the possession of the neighbours by the Rent Control Inspector at the time of inspection in aforesaid case which also establishes that the petitioner is living at Agra.                              

   It is evident from the records that the family members of the landlady have increased and strained relationships between the landlady and the daughter-in-law and that the landlady has only three small rooms and not six big rooms as alleged by him earlier. It appears that the petitioner is living at Agra with his wife and draws his pension from there and comes off and on to Jhansi only for the purpose of keeping his rights of tenancy alive for ulterior motives. The keys of the accommodation in dispute also remain with the neighbour and he keeps the house locked establish that he has no bonafide need of the accommodation and will not suffer comparative hardship if the accommodation in dispute is released in favour of the landlady. The Appellate Court has not committed any illegality in considering the subsequent events in deciding the question of bonafide need and comparative hardship in favour of the respondent landlady and has rightly observed that the petitioner is holding over the tenanted accommodation in order to get ''Pagri' from the respondent landlady.

For the reasons stated above, no case for interference is made out under Article 226 of the Constitution. The writ petition is accordingly, dismissed and the judgment of the Appellate Court is confirmed. The petitioner tenant shall hand over peaceful and vacant possession of the disputed accommodation to the landlady within 15 days from the date of production of a certified copy of this order. If the petitioner has not vacated the disputed accommodation within the aforesaid period, the landlady may move an application before the Prescribed Authority for getting it vacated by police force.    

         Cost on petitioner is assessed at Rs.10, 000/-.

Dated 31.7.2007

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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