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Sarjoo Prasad Gupta @ Lukhi v. Addl. Distt. & Sess. Judge & Ors. - WRIT - A No. 21668 of 2002  RD-AH 18750 (6 November 2006)
Court no. 7
Civil Misc. Writ Petition No. 21668 of 2002
Sarjoo Prasad Gupta alias Lukhi .............................Petitioner
Additonal District and Sessions Judge, Court No.15, Kanpur Nagar
and others. .......................Respondents
Hon'ble Rakesh Tiwari,J.
List has been revised. None has appeared for the respondents. The counsel for the petitioner is present. Heard him and perused the record.
This writ petition has been filed for quashing the impugned order dated 22.3.2002 to the extent of the portion released in favour of respondent no.3-tenant on the eastern side of the shop in dispute, passed by respondent no.1, the Additional District and Sessions Judge, Court No.15, Kanpur Nagar.
Brief facts of the case are that the petitioner is the landlord of the disputed shop no. 2/ on the ground floor of House No. 2/175 176 situated at Mohalla Nawab Ganj Kanpur Nagar under the tenancy of respondent no.3. He filed an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the disputed shop on the ground that his two sons namely, Gyan Prakash Gupta and Ved Prakash Gupta were majors and they were unemployed and he was also going to retire in 1994 as such the shop in dispute was needed for their business.
Respondent no.3-tenant contested the release application denying the allegations made in the release application.
The Prescribed Authority/Ist Additional Judge Small Causes Court, Kanpur Nagar vide order dated 29.1.1997 allowed the release application of the petitioner releasing the disputed shop in favour of the petitioner.
Aggrieved by the aforesaid order dated 29.1.1997 respondent no.3-tenant filed an appeal before the appellate Court.
During the pendency of appeal, respondent no.3-tenant moved an application that the petitioner has acquired a vacant accommodation on ground floor of the aforesaid house and the same was being used for commercial purpose by the petitioner for repairing Air Conditioner and Fridges etc.
The petitioner filed objection thereto alleging that the adjacent room is a kothari in a narrow gallery of 3 feet and the same is not being used for commercial purposes and he is ready to give the said accommodation to respondent no.3 provided the shop in dispute is vacated by him.
The Additional District and Sessions Judge, Court No.15, Kanpur Nagar made spot inspection on 14.3.2002 and found that the breadth of the disputed shop is 11'4" in the inner side and 13'4" as such looking to the interest of the parties he divided the shop in dispute in two equal parts and gave eastern portion to respondent no.3-tenant (area 15'11"x5'6") and western portion to the petitioner whose breadth is 5'6" and depth at the back of the shop is 2 feet because to the north side of the petitioner's shop there is latrine and bath room in an area of 3'6"x5'11".
The appellate Court vide order dated 22.3.2002 partly allowed the appeal of respondent no.3-tenant, hence this writ petition.
The counsel for the petitioner submits that the appellate Court has failed to consider that the petitioner's two sons can not do the business of T.V. Fridge, A.C. Radio and Electrical equiptments in the shop released in his favour; that respondent no.3-tenant is having his own house no.1/153 situated at Nawab Ganj Kanpur where he can carry on his electrical and T.V. repairing work which is at a distance of 100 yards from the shop in dispute and that respondent no.3 has not given the possession of half shop to the petitioner.
He further submits that the appellate Court has also failed to consider the bonafide need and comparative hardship of the petitioner in comparison to respondent no.3-tenant; that the order dated 22.3.2002 passed by respondent no.1 is against the facts and evidence on record and that it can not be sustained in the eye of law, as such the order dated 29.1.1997 passed by respondent no.2 is liable to be maintained and the entire shop ought to have been released in favour of the petitioner.
He also submits that the appellate Court has also failed to consider this aspect of the matter that the kothari situated behind the shop in dispute is a residential accommodation and can not be used for business purpose and that it has committed an error in making the partition of the shop in dispute and releasing the western portion of the shop in favour of the petitioner whose breadth in the front after partition will come about 5'6" and depth at the back of the shop will come about 2' because to the north side of shop there is latrine and bathroom in an area 3'6" x 5'11" while respondent no.3 has been given a clear vacant area of 15'11" x 5'6" which clearly proves that the appellate Court has failed to consider all these aspect of the matter.
Since no counter affidavit has been filed in-spite of time having been granted to the respondent for rebutting the averments made in the writ petition, the averments made in the writ petition are taken to be correct and the writ petition is liable to be allowed.
For the reasons stated above, the writ petition is allowed and the impugned order dated 22.3.2002 is quashed.
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