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Ved Prakash v. D.J. - WRIT - A No. 23453 of 1991 [2006] RD-AH 1503 (19 January 2006)


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(Court No.51)

Civil Misc. Writ Petition No.23453 of 1991

Ved Prakash Gupta and others Versus District Judge, Rampur and others

Hon'ble S.U.Khan J

This is landlords' writ petition arising out of eviction/ release proceedings initiated by them against tenant respondent No.2 Vijay Kumar on the ground of bonafide need under section 21 of U.P Act No.13 of 1972 in the form of case No. 12 of 1987 on the file of prescribed authority/ Munsif Rampur.

Property in dispute is a shop, rent of which is Rs.25/- per month. Release application was filed by three landlords who are petitioners in this writ petition. In the release application, it was stated that shop in dispute was required for Mukesh Kumar and Sanjiv Kumar, sons of petitioner landlord No.1 Ved Prakash Gupta. Prescribed authority found the need of the landlord to be bonafide and decided the question of comparative hardship in favour of the landlord. Consequently release application was allowed through judgment and order dated 20.3.1989.  Against the said judgment and order respondent No.2, filed Rent Appeal No. 20 of 1989. Before the appellate court, landlords filed some affidavits stating therein that some new shops had been constructed in the form of market and tenant could very well take any of the said shops. Tenant also filed affidavit stating therein that Sanjiv Kumar one of the sons of landlord petitioner No.1 had joined some job with Jolly videotrinics.

Appellate court also observed that before the trial court/ prescribed authority tenant had filed application for cross-examination of some of the witnesses of landlord, which was wrongly rejected. The appellate court therefore remanded the matter to prescribed authority for reconsideration of the entire matter taking into consideration the subsequent events also. Appellate court also held that opportunity to cross-examine should be provided to the tenant. Regarding opportunity of cross-examination, appellate court has wrongly stated that application for cross-examination was filed by the tenant. It was actually filed by the landlord before the prescribed authority. Normally release application is to be decided on the basis of position prevailing on the date of filing of the release application. However, subsequent event if it is of such nature that it completely eclipses the need of the landlord or completely eclipses the hardship of the tenant then it can be taken into consideration.

Through counter affidavit in this writ petition some more subsequent events were brought on record.

In my opinion the lower appellate court remanded the matter very lightly. Appellate court did not even decide as to whether alleged subsequent events were so emphatic that they were necessary to be taken into consideration. Appellate court committed an error in holding that application for cross examination was filed by the landlord.

Accordingly writ petition is allowed. Judgment and order passed by the appellate court dated 14.5.1991 is set-aside and matter is remanded to the appellate court to decide the appeal finally. Before the appellate court, both the parties are at liberty to bring on record such subsequent events which may legally be open to them.

If subsequent events are sought to be adduced and brought on record, the appellate court shall decide as to whether the said facts stand proved and if so as to whether the said facts are so vital in nature that they are required to be considered. If the answer to both these questions is in the affirmative then the subsequent events brought on record in appeal shall be considered by the appellate court alongwith the evidence on record before the prescribed authority and the findings of prescribed authority. If for want of proper accommodation, landlord or his sons start doing Sundry job, it does not mean that the need was not or is no more bonafide. However if some lucrative and permanent service is joined then it may be a circumstance which may be taken into consideration while deciding the question of   need.

Appellate court shall decide the appeal as expeditiously as possible. During pendency of appeal, dispossession of tenant petitioner shall remain stayed on the condition that with effect from February 2006 onwards, he deposits rent by 7th of each succeeding month before appellate court for immediate payment to the landlord at the rate of Rs. 500/- per month. This condition is being imposed in view of the Supreme Court judgment reported in 2005 (1) SCC 703 Atma Ram Properties Versus Federal Motors.

Both the parties are directed to appear before the appellate court / District Judge, Rampur on 20.2.2006. District Judge, Rampur may either himself hear the appeal or transfer it to any other Additional District Judge.




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