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SHRI MAHENDRA KUMAR JAIN versus XVII ADDL. DISTRICT JUDGE AND OTHERS

High Court of Judicature at Allahabad

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Shri Mahendra Kumar Jain v. Xvii Addl. District Judge And Others - WRIT - A No. 10639 of 1995 [2005] RD-AH 1418 (26 May 2005)

 

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

Reserved

Civil Misc. Writ Petition No.10639 of 1995

Mahendra Kumar Jain       Vs.        XVII  A.D.J. Meerut and others

  ........

Hon'ble Vikram Nath J.

This writ petition has been filed by the tenant for quashing the order dated 04.04.1995 and 24.12.1991 passed by respondent no.1 and 2 whereby the application of the landlord respondent no.3 for release of the premises in dispute under section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent And Eviction) Act, 1972 ( herein after referred to as the Act) has been allowed and the appeal against the same has been dismissed.

The dispute relates to shop no.16 situate in Ward No.3 Railway Road, Kasba Agrawal Mandi Tatiry Pargana Tahsil Bagpath, District Meerut ( hereinafter referred to as shop in dispute). Undisputedly the respondent no.3 is the owner and landlord of the premises in dispute and petitioner is a tenant. The respondent no.3 filed an application for release of the shop in dispute setting up a need that his son Jagmohan and daughter in law Smt. Manju (wife of Jagmohan) are unemployed and therefore, need the shop in dispute for setting up a business of readymade garments. The case was registered as P.A. Case No. 3 of 1990, Om Prakash Vs. Mahendra in the court of Addl. Civil Judge, Bagpath. The release application was contested by the petitioner and in the written statement it is alleged that in fact there was no need of landlord or any of his family members, the son Jagmohan for whose requirement, the need have been set up was in fact gain fully employed as a Clerk to an Advocate in Shahadara. Further he was running a photo stat shop in Shahadara and was also doing business of manufacturing and selling washing detergent soap.

Both the parties exchanged affidavits and led evidence in support of their cases. The Prescribed Authority after considering the material on record vide judgment dated 24.12.1991 allowed the release application holding that the need of landlord for setting up his business for his son Jagmohan was bonafide and that in the event, the shop in dispute was not released, the landlord would suffer greater hardship. Aggrieved by the same the petitioner preferred an appeal under section 22 of the Act which was registered as Misc. Appeal No. 11 of 1992.

During the pendency of the appeal, additional affidavits in the form of evidence were filed on behalf of the landlord respondent and also on behalf of the tenant petitioner. All the affidavits were accepted and have been considered by the appellate authority in its judgment dated 04.04.1995, whereby the findings recorded by the Prescribed Authority, have been affirmed and the appeal has been dismissed. Aggrieved by the judgment, the tenant has filed the present writ petition.

I have heard Sri Manish Goel learned counsel for the petitioner and Sri Pramod Jain learned counsel for the landlord respondent no.3.

The counsel for the petitioner has raised the following four points:

(i)the appellate court committed error of law in treating the daughter-in-law Smt.Manju to be a member of the family of the landlord in holding that  they would always be need to establish and run the ready made garments business by Smt. Manju. (as in the definition of the family provided in Section 3(g) of the Act. Daughter in law cannot be a member of the family and therefore, there could not be any need under law for the daughter in law;)

(ii)that the judgment of the appellate authority is vitiated as it has misread the affidavit filed by the petitioner;

(iii)that in appeal no additional evidence in the form of affidavit could have been accepted; and

(iv)lastly the appellate authority has not recorded the relevant finding as to whether or not Jag Mohan was gainfully employed as a Clerk at Shahadara.

In so far as the first point with regard to daughter in law being not a member of the family of the landlord is concerned it may be relevant to point out here that the finding of the Appellate Authority on bonafide need is not based only considering the need of the daughter in law. What the appellate court has said is that the need for set up of a readymade garments business by Jagmohan was bonafide as Jagmohan was temporarily running a photo stat business which he had closed in 1988 and since then he is without employment and setting idle. The finding recorded is quoted below:

" UPROKTA VIVECHANA SE YAH SPASTA HAI KI JAGMOHAN JO ASTHAEE TAUR PAR PAHLE PHOTO STAT KA KAM KARTA THA VARSH1988 SE BEKAR HAI AUR USE KAROBAR ME LAGANE KE LIYE PRATYARTHI KO VIVADIT DUKAN KE SADBHAVI AVASHAKTA HAI "

After recording the said finding the appellate court only for sake of argument has proceeded to discuss that assuming the need of Jagmohan is ignored even then the need would still exist for Smt. Manju the daughter in law for running the readymade business. The discussion made by the Appellate Authority with regard to the need/ requirement of Smt. Manju was wholly superfluous. The argument raised by the petitioner would have had force only if the Appellate Authority had held that there was no need for Jagmohan but it was only for Smt. Manju. This is not the case. The findings with regard to the need of Jagmohan is clear and specific.

Learned counsel for the petitioner has relied upon the following judgments: (1) 1994(2) Allahabad Rent Cases page 1  Ram Nath Yadav Vs. Rent Control And Eviction Officer, Allahabad and others (2)1980 Allahabad Rent Cases page 292 M/s Ratan Lal Jagdish Prasad,Kanpur and others Vs. District The Judge Kanpur and others (3)1984(2) Allahabad Rent Cases page 117,Thakurdeen  Vs. Smt. Hero Devi and others (4) 1979 Allahabad Rent Cases, page 252 Ratan Lal   Vs.  Addl. District Judge, Bulandshahr and others for the aforesaid proposition that daughter in law cannot be held to be a member of the family within the meaning of Section 3(g) of the Act. Without disputing the said proposition, the facts of the present case do not require any finding on this question as it has already been held above that the bonafide need for establishment of business of readymade garments for the unemployed son Jagmohan has been categorically recorded by both the courts below.

The next point urged by the petitioner is that there has been misreading of evidence by the Appellate Authority with regard to the documents filed by the petitioner relating to a criminal case to be a forged document. In affidavit paper No.25-C filed before the appellate court Jagmohan had specifically stated that the papers relating to complaint case do not affect his rights as those papers do not include any admission of Jagmohan but only were an application filed by Smt. Guddi only to harass him. Even if it is assumed that a wrong observations has been recorded by the Appellate Authority the question would be whether the findings of bonafide need would have changed or not. A mere admission or statement in a criminal complaint may be for various considerations and under different circumstances and cannot be treated to have established beyond doubt that Jagmohan was working as a clerk with an Advocate. Even otherwise working as a clerk with an advocate is a very temporary assignment and rests on weak link. There is no binding contract. A person sitting idle if works for short period as a clerk cannot be deprived of his need for setting up a business of a permanent nature. This contention also therefore, fails.

The third point urged with regard to accepting additional evidence in the form of affidavit in appeal also has no force in as much as the petitioner has also filed various affidavits before the appellate court being paper No.63-C then another paper No.66-C to bring on record as additional facts and further the petitioner had been given opportunity to file reply to the said affidavit and the petitioner himself filed affidavit paper No.22-C and it was only in reply to the paper No.22-C that the affidavits paper No.25-C was filed by Sri Jagmohan. Along with paper No. 25-C Jagmohan filed certain documents, which was in reply to the affidavit filed by the petitioner himself. Now the petitioner cannot allege that additional affidavit could not have been taken, as he himself initiated to file additional evidence.

The last contention is that relevant findings have not been recorded with regard to the fact that Jagmohan was not working with Km. Meenu Bansal, Advocate as a clerk is also not correct and supportable from the record. The Appellate Authority has considered the material on record and after considering the affidavit and the supporting evidence had come to the conclusion that Jagmohan had been temporarily doing work of photo stat and thereafter from 1988 he was unemployed and sitting idle.

The Prescribed Authority, as well as the Appellate Authority after considering the entire material on record have recorded findings on the question of bonafide need and comparative hardship. These findings of fact based upon appraisal of evidence cannot be interfered with in writ jurisdiction. The petition is concluded by concurrent findings of fact. The petition, therefore, lacks merit and is accordingly dismissed, but without any order as to costs.

Dt.26.5.2005

Hsc/

Today after the judgment was delivered dismissing the tenant's petition, learned counsel for the petitioner-tenant prayed that some time be granted to vacate the premises. Learned counsel for the respondent has agreed for allowing time to vacate till 31st December 2005 subject to the conditions laid down below in the form of undertaking to be filed within seven weeks before Prescribed Authority, and during the said period the petitioner-tenant will not be evicted from the premises in dispute.

Learned counsel for the petitioner submitted that undertaking shall be filed by the petitioner before the Prescribed Authority on the terms and conditions imposed by this Court:-

1.The tenant-petitioner shall file before the concerned Prescribed Authority, on or before 15th July 2005 an application along with his affidavit giving an unconditional undertaking to comply with all the conditions mentioned hereinafter:

2.Petitioner-tenant shall not be evicted from the accommodation in his tenancy up to 31st December 2005. Tenant-petitioner, his representative/assignee, etc. claiming through him or otherwise, if any, shall vacate without objection and peacefully deliver vacant possession of the accommodation in question on or before 31st December, 2005 to the landlord or landlord's nominee/representative (if any, appointed and intimated by the landlord) by giving prior advance notice and notifying to the landlord by Registered A.D. post (on his last known address or as may be disclosed in advance by the landlord in writing before the concerned Prescribed Authority) time and date on which Landlord is to take possession from the tenant.

3.Petitioner shall on or before 15th July 2005 deposit entire amount due towards rent etc. up to date i.e. entire arrears of the past, if any, as well as the rent for the period ending on the 31st December 2005.

4.Petitioner and everyone claiming under him undertake not to ''change' or ''damage' or transfer/alienate/assign in any manner, the accommodation in question.

5.In case tenant-petitioner fails to comply with any of the conditions/or direction/s contained in this order, landlord shall be entitled to evict the tenant-petitioner forthwith from the accommodation in question by seeking police force through concerned Prescribed Authority.

6.If there is violation of the undertaking of any one or more of the conditions contained in this order, the defaulting party shall pay         Rs. 25,000/- (Rupees Twenty five thousand only) as damages       to the other party besides rendering himself/herself liable to be            prosecuted for committing grossest contempt of the Court.

Dt.26.5.2005

Hsc/


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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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