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Ravi Mittal v. Krishna Autar - WRIT - A No. 603 of 1989 [2006] RD-AH 1301 (18 January 2006)


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(Court No.51)

Civil Misc. Writ Petition No.603 of 1989

Sri R.D.Goel Versus VI Additional District Judge, Kanpur Nagar and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

This is tenant's writ petition arising out of eviction/ release proceedings initiated by original landlord respondent No.2 Sri M.D.Parekh (since deceased and survived by legal representatives) on the ground of bonafide need under section 21 of U.P Act No.13 of 1972 in the form of release case No. 117 of 1982 on the file of prescribed authority/ Additional JSCC, Kanpur Nagar.

Accommodation in dispute consists of 3 rooms of a building, which contains 8 rooms in total. Four rooms were in possession of the landlord when release application was filed. It was further stated by the tenant that during pendency of proceedings one more room in the same building which was in occupation of another tenant was vacated by him and landlord got possession of the same.

Landlord had stated that his family consisted of 13 persons including three married couples. Tenant stated that one of the sons of landlord Sampat Rai Parekh was living in Calcutta and he was employed there. However prescribed authority did not believe that version. Regarding the other building vacated by another tenant, the allegation of the tenant was that it had been let out to another person from some bank. Prescribed authority found that version also to be incorrect. It had held that the said building was in tenancy occupation of the Bank since long. Tenant had also argued that need for married daughter could not be considered. The prescribed has held that married daughters also often visit house of their parent and some accommodation for the said purpose is also required.

It was further found that number of the family members of tenant was only 7 and he was a man of means as he was Income Tax payee and was doing business in the name of R.D.Goel and sons. Prescribed authority also found that tenant had taken another house on rent bearing house No. E-24 Khapra Mohal Kanpur. Prescribed authority also found that sons of the tenant were working in State Bank of India and they could very well arrange another accommodation. Prescribed authority ultimately found the need of the landlord to be bonafide and also decided the question of comparative hardship in landlord's favour. Release application was allowed on 31.7.1986. Against the said judgment and order, tenant petitioner filed Rent Appeal No. 103 of 1986. In the operative portion of the prescribed authority's judgment details of accommodation in dispute had been mentioned slightly incorrectly hence landlord also filed Rent Appeal No. 103 B of 1986. Appellate court corrected the error.

Appellate court / VI A.D.J, Kanpur Nagar again re-appreciated the entire evidence on record and came to the same conclusion which had been arrived at by the prescribed authority. Appellate court also took into consideration the accommodation which had been vacated by another tenant in the year 1987 consisting of one room, one Kothri and latrine etc. After taking the entire accommodation available to the landlord and the accommodation vacated by the other tenant Vijay Shanker Pandey in the year 1987, appellate court found that need of the landlord for additional accommodation was genuine and bonafide. It was stated by the tenant that in the year 1987 landlord had let out a flat to another tenant. In respect of the said assertion landlord has stated that one of his sons Bal Krishna was married in 1978 hence in 1977 he was not having any need for additional accommodation (release application was filed in 1982).

Ultimately appeal of the tenant was dismissed on 28.11.1988. Appeal/ cross appeal of the landlord was allowed by the same order and it was clarified that the entire accommodation in tenancy occupation of the tenant stood released. This writ petition by the tenant has been filed against the judgment and order passed by the courts below.

After hearing learned counsel for both the parties, I do not find least error in the judgment of the courts below. Each and every aspect has been taken into consideration before recording the finding of bonafide need and comparative hardship in favour of the landlord. It was rightly found that for the growing need of the family of the landlord, additional accommodation was required. It was also found that tenant was having sufficient financial capacity to arrange for another accommodation and that his sons were employed in the bank and that he or his sons had got another house on rent.

As this writ petition is pending for 16 or 17 years hence some changes were bound to occur during this period. Landlord and his wife have died. Learned counsel for the tenant argued that this has reduced the need of the landlord. On the other had in the counter affidavit, it has been stated that due to birth of children strength family has further increased. Death and birth are inevitable phenomenon of life. In the release application need for entire family had been set up by the deceased landlord hence his death does not bring to end the need set up in the release application.

It is most unfortunate that none of the learned counsel is aware of rate of rent. Alongwith the counter affidavit some documents showing that son of the tenant took some loan for construction of a house has also been annexed. However I am not taking into consideration any subsequent development as basically the case is to be decided on the basis of position prevailing at the time of filing of the release application.

I therefore do not find any merit in the writ petition and it is dismissed.

Tenant petitioner is granted six month's time to vacate provided that-

(1) Within one month from today he files an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months he will willingly vacate and handover possession of the property in dispute to the landlord-respondent.

(2) For this period of six months, which has been granted to the petitioner to vacate, he is required to pay Rs.3000/- (at the rate of Rs.500/- per month) as damages for use and occupation.  This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlord-respondent.

It is further directed that in case undertaking is not filed and deposit of Rs. 3000/- is not made before the prescribed authority within one month then tenant petitioner shall be liable to pay damages at the rate of Rs.1500/- per month since after one month till the date of actual vacation.

Similarly if after filing the aforesaid undertaking and depositing Rs. 3000/- the shop in dispute is not vacated on or before six months then damages for use and occupation shall be payable at the rate of Rs.1500/- per month since after six months till actual vacation.




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