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Madan Lal v. A.D.J. & Others - WRIT - A No. 23409 of 1989 [2005] RD-AH 6576 (29 November 2005)


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Civil Misc. Writ Petition No. 23409 of 1989

Madan Lal Versus Additional District Judge, Ghaziabad and two others.

Hon'ble S.U.Khan J

This is tenant's writ petition arising out of eviction/ release proceedings initiated by landlord respondent No.3 Harish Chandra, on the ground of bonafide need under section 21 of U.P. Act No. 13 of 1972. Property in dispute is a shop. In the release application landlord set up the need for settling his son Girish Kumar in business. Release application was registered as P.A case No. 5 of 1985. Prescribed authority Hapur/ Munsif Hapur through judgment and order dated 19.5.1987, allowed the release application. Against the said judgment and order tenant petitioner filed appeal being Misc. Appeal No. 130 of 1987. A.D.J/ Special Judge, Ghaziabad through judgment and order dated 2.12.1989, dismissed the appeal hence this writ petition by the tenant.

Both the courts below found that landlord had no other shop in his possession to settle his son in business. Courts below also found that the tenant had shifted the business to another shop. This writ petition was dismissed in default on 5.2.2003. Thereafter landlord respondent obtained possession of the shop in dispute on 3.4.2003. The dismissal order was later on set-aside on 14.8.2003.

Learned counsel for the petitioner has argued two main points in this writ petition. First point is that another shop which belonged to the landlord was sold by him hence it is proved that he had no bonafide need. Both the courts below have found that the said shop was already in possession of a tenant and it was sold to that very tenant. It has also been found that already litigation was going on in between landlord and that tenant. In view of this the sale of the said shop does not make any difference.

Other point argued by learned counsel for the petitioner is that during pendency of releases application landlord entered into an agreement for sale in respect of the very shop regarding which release was sought hence his need was not bonafide.  Release application (P.A case No. 5 of 1985) was filed on 15.1.1985. Landlord executed an agreement for sale in respect of the shop in dispute on 20.7.1985. The time for execution of the sale deed provided under the said agreement was extended through another agreement dated 17.12.1985. However on 17.7.1986 the said agreement was cancelled. Landlord in respect of the said transaction stated that it was in fact a transaction of loan and he had taken Rs. 50000/- as loan from the person in whose favour the agreement was executed for the purpose of marriage of his son. Landlord further stated that after repayment of loan along with interest the person in whose favour the agreement was executed relinquished his right under the agreement and it was cancelled on 17.7.1986. Courts below found the version of the landlord to be correct. Appellate court has also observed that some times creditors insist on execution of agreement for sale instead of pronote. I do not find any error in the said finding recorded by both the courts below. The courts below rightly recorded the findings that the said transaction was in fact a transaction of loan. In case it had been a genuine agreement for sale then there was no reason for the purchaser to give up his right under the said agreement.

Accordingly I do not find any merit in the two points raised by the learned counsel for the petitioner.

The writ petition is therefore dismissed.


Dated: 29.11.2005


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