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Smt. Uma Goswami & Others v. 5th A.D.J., Mathura & Others - WRIT - A No. 32141 of 1998  RD-AH 1921 (24 January 2006)
Civil Misc. Writ Petition No.32141 of 1998
Smt. Uma Goswami and others vs. Vth A.D.J., Mathura & Others
During arguments no one appeared for tenant-respondent no.3. Heard learned counsel for the petitioners.
This is landlords' writ petition arising out of eviction/release proceedings initiated by them against tenant-respondent no.3 Ishwar Singh on the ground of bonafide been under Section 21 of U.P. Act No.13 of1972 in the form of P.A. Case no.62 of 1992 before Prescribed authority/Ist Additional Civil Judge (SD), Mathura. Prescribed authority through judgment and order dated 4.10.1996 allowed the release application. Against the said judgment and order respondent no.3 filed P.A. Appeal No.146 of 1996. V A.D.J., Mathura through judgment and order dated 27.5.1998 allowed the appeal, set aside the judgment and order passed by the Prescribed authority and dismissed the release application of the landlords hence this writ petition by the landlords.
Petitioner no.1 who is mother of other petitioners stated in her release application that her husband died in the year 1981 when she was quite young hence she requested her brother to reside with him and his brother started residing with her. It was further stated in the release application that children were growing hence additional residential accommodation was required for them as well as for the brother of the landlady applicant-petitioner no.1. Accommodation in dispute is adjacent to the accommodation in possession of the landlords. Rent of accommodation in dispute is Rs.48/- per month.
Appellate court reversed the judgment and order passed by the trial court mainly on the ground that brother of landlady-petitioner no.1 was not included in the definition of her family hence his need could not be considered. This view is patently erroneous in law. Under the facts and circumstances of the case need of brother of applicant no.1 who was residing with her since long was bound to be considered. The Supreme Court in K.V. Muthu Vs. A. Anand A.I.R. 1997 S.C. 628 has held that need for a nephew brought up as a son by the landlords is in-fact the need of the landlord and building may be released for his need.
In respect of comparative hardship it was stated by landlords that tenant was having a house in Bombay and another house in a Village. It was also stated that tenant was quite rich. Appellate court held that such questions could not be considered in release proceedings. The appellate court was not correct. Supreme Court in B.C.Bhutada Vs. G.R.Mundada A.I.R. 2003 S.C. 2713 has held that if the tenant does not make any sincere effort to purchase or take on rent another accommodation after filing of the release application then balance of hardship tilts against him.Tenant did not show that he made any such effort hence question of hardship was rightly decided against him by the Prescribed authority.
Accordingly I find that the judgment and order passed by the appellate court is erroneous in law and liable to be set aside. Consequently, writ petition is allowed. Judgment and order passed by the lower appellate court is set aside and that of trial court is restored.
However, as no one has appeared on behalf of tenant respondent no.3 hence before issuing writ of possession/parwana dakhal on the execution application which may be filed by the landlord- petitioner under Section 23 of U.P. Act No.13 of 1972 in pursuance of this judgment, Prescribed authority shall issue notice to the tenant-respondent no.3. It is further directed that with effect from the date of service of the aforesaid notice tenant-respondent no.3 shall be liable to pay damages at the rate of Rs.700/- per month to the landlords till date of actual vacation.
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