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M/S KURARA KADAURA BUNDELKHAND TRANSPORT CO. AND ANOTHER versus DINESH KUMAR SHARMA

High Court of Judicature at Allahabad

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M/S Kurara Kadaura Bundelkhand Transport Co. And Another v. Dinesh Kumar Sharma - WRIT - A No. 39265 of 2005 [2007] RD-AH 687 (11 January 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. 39265 Of 2005

M/s Kurara Kadaura Bundelkhand Transport Co. & another

Vs

Dinesh Kumar Sharma

~~~

Hon'ble Rakesh Tiwari, J.

Heard learned counsel for the parties and perused the record.

The petitioner-Company is the tenant of the respondent in the ground floor of Premises No. 133/137-A, Transport Nagar, Kanpur Nagar. The respondent-landlord filed an application (Rent Case No. 11 of 2002) under Section 21 (1) (a) of U.P. Act No. XIII of 1972 for release of the aforesaid premises under the tenancy of the petitioners on the ground of personal need.  

It is alleged by the petitioners that no notice whatsoever of the aforesaid Rent Case No. 11 of 2002 had been received by them and that they have come to know about filing of the aforesaid Rent Case on 28.7.2003 when petitioner no. 2 was informed by one Sri Santosh Kumar Sharma, brother of the respondent-landlord, about passing of the ex-parte order dated 3.4.2003 by the Prescribed Authority partly allowing the Rent Case No. 11 of 2002 by releasing one shop out of the premises under the tenancy of the petitioners.

On inspection of the record and perusal of the order sheet of Rent Case No. 11 of 2002 it was found that a false report of service of notice upon them of Rent Case No. 11 of 2002 was submitted and the Prescribed Authority relying upon the false report of service passed the ex-parte order dated 3.4.2003.

The petitioners filed an application for setting aside/recalling of the ex-parte order dated 3.4.2003 which was registered as Misc. Case No. 2/74 of 2003 under Section 34 (g) of U.P. Act No. XIII of 1972 read with Rules 22 (b) and 32 (a) of the Rules framed under the Act.

The respondent filed objection to the aforesaid application filed by the petitioners for setting aside/recall of ex-parte order dated 3.4.2003 denying the allegations to which rejoinder affidavit was filed by the petitioners reiterating their allegations to be correct.  

The Civil Judge (Junior Division), Kanpur Nagar vide order dated 29.4.2005 after hearing the parties rejected the application filed by the petitioners under Section 34 (g) for recalling of the ex-parted order dated 3.4.2003 passed by the Prescribed Authority.  

It is further alleged by the petitioners that in the past also the predecessor of the respondent-landlord filed S.C.C. Suit No. 13 of 1991 against the petitioners and in the same manner procured an ex-parte order and a dispute arose between the respondent and his brother Sri Santosh Kumar Sharma on account of the S.C.C. Suit No. 13 of 1991.  

The rent of the premises in dispute which comprises a shop and go-down on the ground-floor of Premises No. 133/137-A, Transport Nagar, Kanpur Nagar having an area of 240 sq. ft. earlier was raised to Rs. 1300/- per month. Vide order dated 4.10.2005 the rent of the accommodation in dispute was enhanced by the Court to Rs. 2000/- per month.

The learned counsel for the respondent-landlord prays that in the mean time during the pendency of the writ petition some rent may further be enhanced according to present market rate of the area which is commercial area.

The learned counsel for the petitioners is amenable to this suggestion.

In S.L.P. No. 19685/06 arising out of Writ Petition No. 8972 of 2002 (Hari Shankar Bhardwaj Vs Dharamendra Kumar Gupta) the Hon'ble Supreme Court has affirmed the view of this Court that the rent of the houses/buildings/shops may be fixed under Article 226 of the Constitution having a pragmatic approach and taking into consideration the area, location, nature of construction, current market rate of rent, locality etc. The order of the Hon'ble Supreme Court dated 9.12.2006 passed in the aforesaid S.L.P. No. 19685/2006 runs as under:

"Heard learned counsel for the parties.

We do not find any ground to interfere with the impugned order.

The Special Leave Petition is, accordingly, dismissed. However, time granted by the impugned order making the deposit is extended to 7th January, 2007."

Moreover, in view of the decisions rendered in Rajeshwari  (Smt.) Vs. Smt. Prema Agarwal, 2005 (1) ARC 526, Khurshida Vs. A.D.J., 2004 (2) ARC 64, wherein the rent was increased to about fifty times, the High Court held that it can enhance the rent to a reasonable extent as has also been held by this Court in Para 7 of the decision rendered in Smt. Zohra Vs IVth Additional District Judge, Jhansi, 2006 (63) A.L.R. 643 and 2004 (54) A.L.R. 177, and Hari Mohan Kichlu Vs. VIIIth A.D.J. Muzaffarnagar and others, 2004 (2) ARC 652, wherein the rent was increased to more than 28 times the High Court held that while granting relief to a tenant against eviction the writ court is empowered to enhance the rent to a reasonable extent.  

The rate of rent of the shop paid by the petitioners is too meager for the aforesaid commercial accommodation in Transport Nagar, Kanpur Nagar, as such the rent has to be proportionately increased as per market rate during the pendency of the writ petition in order to balance equity.

In view of the facts and circumstances of this case, it would be appropriate that the rent of the shop in dispute comprising 240 sq. ft. area situated in commercial area of Transport Nagar in Kanpur Nagar be enhanced @ Rs. 30/- per sq. ft. which comes to Rs. 7200/- per month as prayed by the learned counsel for the respondent-landlord.

The learned counsel for the petitioner-tenant has no objection to the enhancement of rent to Rs. 7200/- per month.  

Considering the facts and circumstances of the case, it is directed that the petitioner-tenant shall pay Rs. 7200/- per month as the rent of the shop in dispute w.e.f. January, 2007 payable to the respondent-landlord by 7th February 2007 and thereafter by 7th day of each succeeding month till further orders with 10% notional increase after every 5 years in accordance with the provisions of Act No. XIII of 1972.

         In default of payment of the enhanced rent as directed above by this Court, the respondent-landlord can get the shop in dispute vacated with the help of police, if necessary, within a period of one month by giving notice in writing to vacate the shop in dispute.

       List this case in May, 2007 for admission.

Dated: 11.1.2007

Rpk/


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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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