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Kapoor Chandra & Others v. Iii Addl. D.J. & Others - WRIT - A No. 5582 of 1991 [2004] RD-AH 1533 (29 November 2004)


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Court No. 26

Civil Misc. Writ Petition No.5582 of 1991

Kapoor Chandra & others   Vs.   III Addl.District Judge,Jaunpur & others


Hon'ble Vikram Nath J.

This petition has been filed by the tenant against the judgment dated 6.12.1990 passed by III Addl.District Judge, Jaunpur in Rent Control Appeal No. 194 of 1992, Ashok Kumar and others Vs. Kapoor Chandra and others whereby the appeal of the landlord was allowed and after setting aside the judgment of the Prescribed Authority, dated 13.9.1982 allowed the release application u/s 21(1)(a) of Act No.13 of 1972.

The dispute relates to one shop no. 180/2(old) and 39/2(new) situate in Muhalla Olenganj(Nakhas),Jaunpur city,Jaunpur. The petitioner was tenant of the said shop which was originally owned by Parsottam Das and pursuant to the sale deed executed by him dated 02.02.1973 the respondents 2 to 4 have become its owners and landlords. The respondents 2 to 4 filed an application for releas of the disputed shop setting up their need for starting the business of general merchandise from the shop in dispute. The said release application filed u/s 21(1)(a) of the Act was registered as P.A. Case No. 34 of 1990. The tenant petitioner filed a written statement in which it was specifically alleged that landlord had a vacant shop to the west of the shop in dispute and also two shops on the east of the shop in dispute in which the landlord was already carrying on his business. Affidavits were exchanged between the parties. The Prescribed Authority, vide judgment dated 13.9.1982 rejected the release application on the ground that the landlord had no bonafide need. Aggrieved by the said judgment, the landlord filed Rent Control Appeal No. 194 of 1992. The said appeal has been allowed by the judgment-dated 06.12.1990 of IIIrd Addl. District Judge, Jaunpur after considering the material evidence on record and after recording the findings that the need set up by the landlord was bonafide and pressing. Further it was recorded that in case the shop in dispute was not released, the landlord will suffer greater hardship than the tenant as the tenant has four shops in his use and occupation in the main market area where he could easily shift his business from the shop in dispute without any hardship. Aggrieved by the said judgment, the present writ petition has been filed.

I have heard Sri Namwar Singh, learned counsel for the petitioner and Sri B.K. Srivastava, learned counsel representing the respondents 2 to 4.

The contention of learned counsel for the petitioner is that the appellate authority without considering the evidence and without upsetting the reasoning given by the Prescribed Authority, in recording the finding on bonafide need has recorded the finding of bonafide need in a slip shod manner. According to the counsel, the availability of three shops with the landlord in the same building on the western and eastern side of the shop in dispute has not been considered by the appellate Authority.

Learned counsel for the petitioner has relied upon the following decisions for the proposition that landlord having alternate accommodation available, the need setup can not be said to be bonafide.:

1.2001 (3) A.W.C.1997(S.C.)

Ashok Kumar and others Versus Sita Ram

2.AIR 2001 Supreme Court 2655

Deena Nath Vs. Pooran Lal

3.2003 All.C.J. 2252

Kishan Chand Versus Jagdish Pershad and others

In so far as the judgment in the case of Ashok Kumar (Supra) is concerned it was a case where the court below has recorded the finding which has been upheld by the High Court and Supreme Court and held that the question of comparison of hardship arises only where bonafide need has been considered to be genuine. In the present case, the appellate Authority has held the bonafide need to be genuine and pressing and has also recorded the finding of comparative hardship. This judgment is of no help to the petitioner.

The second judgment referred by learned counsel for the petitioner in the case of DinaNath (Supra)deals with the situation where during pendency of the proceeding one shop became vacant under order of the Court and it satisfied the need of the landlord,  in that event the need of the landlord was held to be satisfied. The present case is not of such a nature .No shop has been vacated during the pendency of the proceeding. The said judgment relied upon is distinguishable on facts and cannot be applied..

The third judgment in the case of Kishan Chand(Supra)is on the question where the landlord did not approach  the court with clean hands and did not disclose about the additional accommodation available with him. This aspect of the matter has also been considered by the appellate Authority and upon consideration of the evidence it has been held that there was no such concealment as would disentitle the landlord from any relief. In the circumstances this judgment is also of no help to the petitioner.

On the other hand it is contended by Sri B.K.Srivastava that the appellate Authority has considered the detail material evidence and also the fact that the petitioner tenant had four shops, which were in a busy market area from where he could carry on his business, which he was carrying on in the shop in dispute without facing any hardship. He has further contended that the landlord cannot be compelled to carry on his business at the dictate of the tenant. The landlord is at liberty to carry on his business in any of his accommodation of his choice. I have considered the arguments of counsel for the parties and considering the reasons given by the appellate Authority the matter ought to be sent back for reconsideration but looking to the history and the facts of the case it would be appropriate to finally close the lis now at lest after 25 years. The application was filed in the year 1980 The tenant already has four shops in his possession which are situate in busy market area within the distance of one km. from the shop in dispute. It would not be equitable to interfere in discretionary jurisdiction under Article 226 of Constitution for remanding the case. The tenant having acquired accommodation where he can easily shift has to give in and concede to the demand of the landlord for eviction on personal need..

In the result, the writ petition is dismissed. In the appellate order which is impugned in the present writ petition it was provided that three months time is allowed to the tenant to vacate the premises. Same amount of time is allowed to the petitioner from today to handover the vacant possession to the landlord.

Dt. 29.11.2004



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