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Smt. Vijay Luxmi Jain v. Rameshwar Dayal Gupta And Another - WRIT - A No. 36906 of 2006 [2006] RD-AH 11821 (19 July 2006)


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).


Civil Misc. Writ Petition No.  36906 of 2006

Smt. Vijay Luxmi Jain...............Petitioner


Rameshwar Dayal Gupta & Another........Respondents

Hon'ble Krishna Murari,J.

Heard Sri   Murlidhar, learned senior counsel assisted by Sri R.P. Singh for the petitioner and Sri M. K. Gupta, learned counsel appearing for the contesting respondent no.1.

This is a tenant's petition arises out of proceedings initiated by respondent-landlord under Section 21(1)(a) of U.P. Act No. 13 of 1972. The tenanted premises happens to be part of plot no. 88, situate in Mathura Cantonment and the respondent-landlord is the lessee of the cantonment. The petitioner is a tenant in possession of a part of the building and is running a primary convent school. The respondent-landlord sought the release of the tenanted accommodation on the ground of personal need. It was stated in the application that the family of the applicant consists of his wife, three sons aged about 27 years, 25 years and 24 years respectively and one married daughter. It was further pleaded that all the sons are of marriageable age and talks of their marriage is going on and as such the accommodation is genuinely and bona fidely required by him to satisfy the growing need of his family. It was also stated that the tenant-petitioner is also running another school in Krishanpuri where they can shift the students of the present school.

On the question of bona fide need, the Prescribed Authority recorded a finding that the requirement of the landlord is of five rooms and he already has four rooms in his possession as such his need would stand served by release of one room. On the ground of comparative hardship, it was held by the Prescribed Authority that if the entire tenanted accommodation is released, the tenant shall suffer greater hardship. Accordingly, the Prescribed Authority partly   allowed the application and released one room in favour of respondent-landlord.

Aggrieved, the respondent-landlord filed an appeal. Appellate Court allowed the appeal and released the entire accommodation in favour of respondent-landlord. After considering the entire evidence oral as well as documentary brought on record, the appellate court set aside the finding recorded by the prescribed authority on the question of bona fide need holding that during the pendency of the litigation for 14 years, the family of respondent-landlord has grown in size and each son of the landlord requires a separate room and his grandsons also require separate rooms. It was also held by the appellate court that the married daughter of the landlord who comes to visit him also requires some accommodation whenever she comes to visit him. On the basis of the aforesaid findings, the appellate court came to the conclusion that the entire tenanted accommodation is bona fidely and genuinely required by landlord-respondent. On the question of comparative hardship, the appellate court on the basis of evidence adduced by the parties recorded a finding that petitioner-tenant is running another school in the name of Draupadi Public School. Thus, they have an alternative accommodation where the present school can be shifted and the balance of comparative hardship is in favour of respondent-landlord. The appellate Court also found that for the 14 years during which the litigation was pending, no effort was made by the tenant-petitioner to search any alternative accommodation. Hence also the balance of comparative hardship is in favour of the landlord.

From a perusal of the aforesaid facts, it is clear that both the Prescribed Authority as well as the appellate Court found that respondent-landlord had bona fine need. However, the Prescribed Authority found that the need of the respondent-landlord would stand satisfied by releasing one room. Appellate Court set aside the said finding and held that the entire disputed accommodation was genuinely required by the respondent-landlord. The findings recorded by the appellate Court are based on proper appraisal of evidence and in the facts and circumstances, where the family has grown in size during the period of 14 years the litigation was pending there appears to be no illegality in the same.

In so far as the question of comparative hardship is concerned, the Prescribed Authority failed to take into account that the petitioner was already running a school where the present school could be shifted easily. The appellate Court rightly held that hardship of the respondent-landlord was greater than that of the tenant-petitioner inasmuch as he had an alternative accommodation available with him.

From a perusal of the judgment passed by the appellate court, it becomes clear that findings of fact recorded by him, are based on proper appraisal of evidence brought on record and there appears to be no illegality in the same. The writ petition stands concluded by findings of fact recorded by the Court below. Even during the course of argument, learned counsel for the petitioner has failed to point out any illegality in the findings recorded by the appellate Court.

In view of above, there is no merit in the writ petition and the same accordingly stands dismissed.

In the end, a request has been made by the learned counsel for the petitioner to grant some reasonable time to the tenant-petitioner to vacate the premises in dispute.

Considering the facts and circumstances and particularly the fact that Primary School is being run in the tenanted accommodation, the tenant-petitioner is allowed time by 30th April 2008 to vacate the premises provided;

(i) within one month from the receipt of the certified copy of this judgment, he files an undertaking before the Prescribed Authority to vacate and hand over the possession of the accommodation in dispute to the respondent-landlord on or before 30th April 2008.

(ii) He shall pay a sum of Rs. 2000/- per month as damages for use and occupation of the accommodation in dispute till such time, he continues in occupation of the accommodation in dispute.

In case of default in either of the aforesaid two conditions, he shall be liable to be evicted forthwith through process of Court.



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