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Niraj Kumar & Another v. Smt. Hira Kali & Others - WRIT - A No. 62882 of 2005  RD-AH 3590 (26 September 2005)
Court No. 51
Civil Misc. Writ Petition No. 62882 of 2005
Niraj Kumar & another..Vs..Smt. Hira Kali and others.
Hon'ble S.U.Khan, J
Heard learned counsel for he petitioner as well as learned counsel for the landlady respondent No.1.
This is tenants' writ petition arising out of eviction/ release proceeding initiated by landlady respondent No.1 against them on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 in the form of Case No. 7 of 1992. Initially release application was rejected. However the matter was remanded in appeal and thereafter release application was allowed on 28.2.2004 by Prescribed authority/ Civil Judge (Senior Division), Shahjahanpur. Against the said judgment and order Civil appeal No. 15 of 2005 was filed which was dismissed by Addl. District Judge, Shahjahanpur through judgment and order dated 30.8.2005, hence the writ petition.
The landlady pleaded that her family consisted of herself, her husband, four sons and four daughters and that she was residing in a tenanted house. During pendency of the case two sons of the landlady purchased a house in the year 2000. Those two sons shifted to the newly purchased house. Learned counsel for the tenant petitioners has argued that the money to purchase the said house was provided by the landlady. However, before the Courts below their case was that the husband of the landlady had provided money to Virendra and Rajeev, the two sons of the landlady to purchase the house. Be that as it may both the Courts below clearly held that the landlady was residing in a tenanted house which belonged to one Chet Ram. If the landlord himself or herself resides in the tenanted house his or her need for release of his or her own house is quite bonafie. Even if two of the sons of the landlady along with their families have shifted to another house, the need for the landlady, her husband and those children who still reside with her, still remains and is bonafide.
In respect of comparative hardship the courts below held that one of the tenants had purchased a house in 1957 and sold it in 1991. Learned counsel for the tenant-petitioners has argued that the said house was already tenanted. In any case no serious efforts were made by the tenants to search alternative accommodation after filing of the release application. By virtue of Supreme Court authority reported in B. C. Butada Vs. G.R. Mundada-AIR 2003 SC 2713 failure to search alternative accommodation is sufficient to tilt the balance of comparative hardship against the tenant.
Accordingly, there is no error in the impugned orders. The writ petition is devoid of merit, hence it is dismissed.
Tenant petitioners and proforma respondents are granted nine months' period to vacate the property in dispute, provided that within one month from today they file an undertaking before the JSCC to the effect that on or before the expiry of period of nine months they will willingly vacate and handover possession of the property in dispute to the landlord-respondents. For this period of nine months which has been granted to the tenants to vacate they are required to pay Rs.2250/-( at the rate of Rs.250/- per month) as damages for use and occupation. This amount shall also be deposited within one month before the JSCC and shall immediately be paid to the landlord-respondents.
It is further directed that in case undertaking is not filed within one month then tenants shall be liable to pay damages at the rate of Rs. 2000/- per month since after one month till the date of actual vacation.
Similarly if after filing he aforesaid undertaking the shop in dispute is not vacated after nine months then damages for use and occupation shall be payable at the rate of Rs.2000/- per month since after nine months till actual vacation.
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