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KAMLESH CHANDRA GUPTA versus II A.D.J. & OTHERS

High Court of Judicature at Allahabad

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Kamlesh Chandra Gupta v. Ii A.D.J. & Others - WRIT - A No. 10565 of 1983 [2006] RD-AH 17366 (9 October 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).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.10565 of 1983

Kamlesh Chandra Gupta and another  

Vs.

II Addl.District Judge and others

Hon. Sanjay Misra, J.

The petitioners claim to be owners and landlord of the shop in dispute. They have inherited the shop from their predecessors who had affected a partition of the ancestral property. The petitioners application under section 21(1)(a) of the U.P.Urban Buildings  (Regulation of Letting, Rent and Eviction ) Act 1972 was allowed by the prescribed authority by the judgment and order dated 25.7.1979. However,  the appeal filed by the tenant respondent  has been allowed and the application of the petitioners for release  of the shop has been dismissed by the impugned judgment and order dated 23.4.1983 passed in Appeal No.90 of 1979 by the II Additional District Judge, Jaunpur.

The courts below have recorded concurrent findings of fact regarding bonafide need of the petitioners and comparative hardship. The Prescribed Authority as also the appellate court have concluded that the need of the petitioners for the shop in dispute was bonafide and the tenants had in their possession other shops in which they could continue their business.

Learned counsel on behalf of the respondents has submitted that the petitioners grand father had earlier filed a release application which had been dismissed and the tenant out of goodwill had voluntarily vacated half portion of the shop and handed over  possession to the petitioners grandfather. Hence the need set up by the petitioners subsequently is not bonafide.

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The courts below  have considered  the pleadings and evidence of the parties  and have recorded  their findings on the issue of bonafide need and comparative hardship in favour of the petitioners. Having gone through  the said findings recorded  by both the courts below, no error can be found in the same.

Learned counsel for the petitioner has contended that the appellate court has illegally dismissed the release application of the petitioners solely on the ground  that the release application had to be signed by all the co-landlords in view of the fact that the plea of partition set up by the petitioners was shaky and unreliable. Regarding the provision of Rule 15(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction ) Rules 1972 he has contended that the provision was considered by a Full Bench of this Court in the case of Gopal Dass and another Vs. Ist Addl. District Judge reported in 1987(1) ARC 281  it was held that the said requirement was invalid. One co-owner was competent to maintain an action for eviction of a tenant of the entire premises, since he can be considered as a landlord within the meaning of section 3(j) of the Act. Therefore,  one co-owner alone would be competent to sign such an application.

The law is well settled on this issue in view of the decisions of the Hon'ble Supreme Court in the cases of Sri Ram, Parricha  Vs. Jagannath & others reprted in (1976) 4 SCC 184 and Indian Umbrella Manufacturing Company & others  reported in 2004(55) ALR 98.  The appellate court was therefore not correct in dismissing the release  application of the petitioners solely on the aforesaid  ground.  The impugned judgment   and order  of the appellate court in so far as it has dismissed the release application on the ground that all the co-landlords were necessary parties is set aside. The findings of the courts below on the issues of bonafide need and comparative hardship are affirmed and the application of the petitioners under section 21(1)

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(a) of the Act stands allowed. The petitioners shall be entitled for the monthly rent w.e.f. the date of application upto the date actual physical possession is given  to them. Any amount of rent already paid by the tenant shall be adjusted accordingly.

The writ petition is allowed as above. No order is passed as to costs.

October 9, 2006

Gc.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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