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Babu Ram And Anr. v. Xith Addl. Distt. Judge And Anr. - WRIT - A No. 18428 of 1988 [2005] RD-AH 7731 (19 December 2005)


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Civil Misc. Writ Petition No.18428 of 1988

1. Baburam S/o Kaloo Ram  

2. Kuldeep Kumar S/o Baburam............... . . . . .Petitioners


1. XI Additional District Judge, Meerut

2.Smt. Savitri Devi. . . . . . . . . . . . . . . . . . . . . . . . . . .respondents.


Civil Misc. Writ Petition No.18429 of 1988

Kuldeep Kumar son of Sri Babu Ram. . . . . . . . .. .Petitioner


    1. XI Additional District Judge Meerut

2. Smt. Savitri Devi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Respondents.

Hon'ble S.U.Khan J

Both these writ petitions have been filed by the tenants. Baburam is father and Kuldeep Kumar is his son. Property in dispute may either be described as a big shop or two shops of ordinary size interconnected with each other. The dimensions of total accommodation are about 11 feet 10 inches by 25 feet. On the direction of the court both the parties have filed sketch map of the accommodation in dispute through supplementary affidavits. Sketch map annexed with supplementary affidavit dated 17.11.2005 filed by learned counsel for the petitioner in second Writ Petition is taken to be the map of the accommodation in dispute for the purposes of both the writ petitions. Learned counsel for the landlady respondent stated that the said map was substantially correct. Towards north of the entire accommodation in dispute there is Abu Lane road and towards east a wide road is there which leads to Sadar Kabadi Bazar.

According to the tenants who are father and sons one shop was taken by the son Kuldeep Kumar on monthly rent of Rs. 250/- per month and the other shop was taken jointly by both the petitioners of the first writ petition i.e. father and son (Baburam and Kuldeep Kumar) and rent of the said shop was Rs. 200/- per month. It has also been stated by the petitioners that the wall in between the two shops was removed with the consent of the landlady respondent No.2 and both the shops were converted into one shop. Landlady has taken up the case that since beginning it was one shop. This dispute need not be decided in these writ petitions. There is absolutely no conflict of interest in between the father and son, the tenants.

Landlady filed two release applications for the release of the entire accommodation in dispute on the ground of bonafide need under section 21 of U.P Act No.13 of 1972. Release application being P.A case No. 7 of 1984 was filed against both the tenants. The other release application was filed against Kuldeep Kumar alone being P.A case No. 6 of 1984. Landlady in her release applications stated that she had six sons and three daughters and her eldest son Thakur Das was doing business alongwith her husband. The need set up was for three of her sons, Raj Kumar, Krishna Gopal and Suresh Kumar. Prescribed authority through judgment and order dated 23.5.1985, dismissed both the release applications against which landlady respondent filed two appeals being Civil Misc. Appeal No. 170 and 171 of 1985. XI Additional District Judge, Meerut through judgment and order dated 21.9.1988, allowed both the appeals and released both the shops. These writ petitions are directed against the aforesaid judgments and orders of the appellate court.

Learned counsel for tenant petitioner has argued that during pendency of proceedings, husband of the landlady died. In the shop occupied by the husband of the landlady, the eldest son was doing business hence the said shop cannot be said to be available for the sons whose need was set up in the release applications giving rise to the instant writ petitions.

The other argument of learned counsel for the petitioners is that another tenant of the landlady Lal Chand Pandey has vacated the shop in his tenancy occupation. In respect of the said shop landlady had initiated release proceedings setting up the need for her son Praveen Kuamar. Accordingly the said shop also can not be said to be available to her for settling the sons for whose need release applications giving rise to the instant writ petition were filed.

The third argument of learned counsel for the petitioners is that Krishna Gopal and Suresh Kumar for whose need release was sought have also died. In this regard it is important to note that in Para 7 of the release application it was stated need was set up for her three sons Raj Kumar, Krishna Gopal and Suresh Kumar. Raj Kumar is still alive.

I do not find any error in the impugned judgment of the appellate court holding the need of the landlady to be bonafide. I also hold that inspite of subsequent events the need for Raj Kumar one of the sons of landlady still persists. Learned counsel for the tenant petitioner has not been able to show that Raj Kumar is doing business anywhere.

However in view of the size of the entire accommodation in dispute in both the writ petitions and in view of unfortunate death of some of the sons of landlady for whom also release was sought, it is eminently just and proper to release one of the two shops (or half of the entire shop) in favour of the landlady and leave rest half portion in possession of the tenant. The Supreme Court in R.C.Kesarvani Vs. Dwarika Prasad 2002(2) ARC 298 has held that High Court itself can decide the question of part release of commercial accommodation. In this regard learned counsel for both the parties has vehemently argued that the shop (portion of the shop), which has got roads on two sides must be given to their clients. After considering all the pros and cons I am of the opinion that in a case which is fit for part release landlady has got a right to choose.

Accordingly the shop (portion of the shop) shown by letters IECB in the aforementioned map is released in favour of landlady and the shop (portion of the shop) denoted by letters AIED in the aforementioned map is left in the tenancy of the tenants i.e. both the petitioners of the first writ petition Baburam and Kuldeep Kumar, father and son. The rent of the shop which is left in the tenancy occupation of the tenants is determined to be Rs. 450/- per month.

Petitioners-tenants are granted three months time to vacate the shop shown by letters IECB. Immediately on getting possession, landlady shall construct a wall to completely separate the released portion from the portion/ shop left in the tenancy occupation of the tenants-petitioners. If possession is not delivered within three months, then the landlady is entitled to take possession through proceedings under section 23 of the Act before the prescribed authority concerned. In that eventuality tenants shall be liable to pay damages/ rent to the landlady at the rate of Rs. 3000/- per month since after three months till actual vacation of released shop/ portion.

Both the writ petitions are accordingly disposed of.


Dated: 19.12.2005


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