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RAM BABU RASTOGI versus SMT. CHUNNI DEVI AND OTHERS

High Court of Judicature at Allahabad

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Ram Babu Rastogi v. Smt. Chunni Devi And Others - WRIT - A No. - 62242 of 2006 [2007] RD-AH 15938 (24 September 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 AT ALLAHABAD

(Court No.7)

Civil Misc. Writ Petition No.62242 of 2006

Ram Babu Rastogi vs. Smt. Chunni Devi and others

Hon.S.U.Khan,J.

Heard learned counsel for the parties.

This is tenant's writ petition arising out of eviction/release proceedings initiated by original landlord Rajendra Prasad Srivastava since deceased and survived by the four respondents on the ground of bonafide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 against tenant petitioner in the form of P.A. Case no.8 of 1988. Property in dispute is a shop having a frontage of about 7 feet and depth of about 12.5 feet and is situate in Katra Allahabad. In the release application it was stated that original landlord wanted to establish his son Prabhat Kumar Srivastava in business from the shop in dispute. Landlord died during pendency of the release application and was substituted by his widow, son - Prabhat Kumar Srivastava and two daughters who are respondents in the writ petition. It was stated on behalf of tenant that landlord was carrying on business of money lending and after his death his widow Smt. Chunni Devi through his son Prabhat Kumar was continuing the said business by lending money to the needy persons. The said assertion was denied by the landlord. In respect of comparative hardship it was stated on behalf of landlord that in another area of the same city i.e. Rani Mandi, Allahabad tenant was having a house on the first floor and on the ground floor there was commercial accommodation available to the tenant. The tenant stated that he was carrying on the business of selling Chikan cloths from the shop in dispute. Prescribed authority/Additional Civil Judge (SD), Court No.14, Allahabad allowed the release application through judgment and order dated 10.9.2004. Against the said judgment and order rent appeal no.101 of 2004 was filed. The Prescribed authority had directed the landlord to pay Rs.16,000/- as compensation to the tenant. Against that direction landlord also filed appeal which was numbered as R.C. Appeal No.107 of 2004. Both the appeals were dismissed on 8.11.2006 by Additional District Judge, Court no.5, Allahabad hence this writ petition. Both the courts below decided the questions of bonafide need and comparative hardship in favour of the landlord.

In respect of bonafide need learned counsel for the petitioner has specifically invited the attention of the court to Annexure-7 of the writ petition which is affidavit of one Manish Kumar filed before the Prescribed authority. In para-3 of the said affidavit it was stated that the deponent borrowed some amount from Smt. Chunni Devi in January 2002 and returned the same in March 2002. In para-4 it was stated that Late Rajendra Prasad during his life time was also doing the business of money lending and after his death his widow Smt. Chuuni Devi through her son Prabhat Kumar is continuing the said business.

Landlord-respondent outrightly denied the said assertion. However, even if it is assumed that Smt. Chunni Devi - respondent no.1 is doing some business of money lending through his son still it will not make much difference. As held by Supreme Court in Shushila vs. A.D.J. A.I.R. 2003 S.C. 780, every, landlord has got a right to do independent separate business. If Prabhat Kumar is helping his mother in money lending business then it does not mean that he has got no need for separate shop to carry on his independent business. Moreover it is interesting to note that Manish Kumar in his affidavit did not state that he paid any interest on the loan. In para-2 he stated that whenever for his business purposes he required some money he borrowed the same from Chunni Devi and his son and returned the same after completion of work. However, as observed earlier even if it is assumed that Smt. Chunni Devi is carrying on the business of money lending from her house still it does not mean that her son is not in need of accommodation for running independent business. This sufficiently proves bonafide need. Tenant himself is having commercial accommodation in another locality in which according to him his son is carrying on business. In any case tenant stated that he was having a good-will in respect of business carried out from the shop in dispute and he was carrying on the business on a large scale from the shop in dispute and shop was famous by the name of Chikan Palace from where he was doing business of selling chikan clothes. Tenant did not make any sincere effort to purchase or take on rent some other shop. In view of the Supreme Court authority reported in B.C. Bhutada vs. G.R.Mundada (A.I.R. 2003 S.C. 2713) failure to make such effort is sufficient to tilt the balance of hardship against the petitioner.

Accordingly, I do not find any error in the impugned judgments. Writ petition is dismissed. Tenant-petitioner is granted nine months time to vacate provided that:

1. Within one month from today tenant-petitioner files an undertaking before the Prescribed authority to the effect that on or before the expiry of aforesaid period of nine months he will willingly vacate and handover possession of the property in dispute to the landlord-respondent.

2. For this period of nine months, which has been granted to the tenant-petitioner to vacate, he is not required to pay any rent. This will be sufficient compensation in terms of Explanation II of Section 21 of the Act. Landlord need not pay the amount of Rs.16,000/- as directed by the courts below. However, if the shop in dispute is not vacated within nine months then since after nine months till actual vacation rent/damages for use and occupation at the rate of Rs.2,000/- per month shall be paid.

24.9.2007

RS/-


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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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