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Mohd. Abdul Gani Azad v. Devi Prasad - WRIT - A No. 8695 of 1991  RD-AH 4493 (20 October 2005)
Civil Misc.Writ Petition No. 8695 of 1991
Mohd. Abdul Gani Azad. . . . . . . . . . . . . .Petitioner
Devi Prasad and others. . . . . . . . . . . . . . . . Respondents.
Restoration applications and Substitution application are allowed.
This is tenant's writ petition arising out of eviction/release proceedings initiated by landlord respondent no. 1(since deceased and survived by L.Rs) against him on the ground of bonafide need under section 21 of U.P.Act No. 13 of 1972 in the form of Rent Case No. 7 of 1984. Prescribed Authority/ Civil Judge Kanpur Dehat through judgment and order dated 19.4.1986 allowed the release application. Against the said judgment and order tenant-petitioner filed Rent Control Appeal no. 1 of 1986. Second Additional District Judge,Kanpur Dehat through judgment and order dated 21.2.1991 dismissed the appeal, hence this writ petition.
Property in dispute is a shop having frontage of 7 feet and depth of about 18 feet. Towards west of the shop in dispute there is another shop having frontage of 14 feet and depth of about 18 feet. In para 4 of the release application it was stated that landlords' family consisted of 12 members inclujding 3 sons aged about 26 years, 20 years and 16 years. In paragraphs 7 to 10 of the release application it was stated that in the shop adjoining to the shop in dispute landlord was carrying on the business of Kerana; that landlord needed the additional accommodation to expand the business in order to augment the income. It was further stated that two sons of landlord i.e. Mahendra Kumar and Rajendra Kumar were assisting him in the business and that one son Ashok Kumar was unemployed and it was necessary to settle him in separate business. The tenant contended that the shop in possession of landlord was actually in the form of two shops and in one shop landlord was carrying on business and in the other shop his son Ashok Kumar, for whose need release application was filed, was doing business. Some photographs were also filed showing that there were two shops in possession of the landlord. It is quite possible that there might be wooden partition or a partition wall of cement and bricks in the shop in possession of the landlord at some point of time. Prescribed Authority appointed Commissioner to inspect the property in dispute and the adjoining properties. Commissioner submitted report along with map. Copy of report is Annexure 8 and copy of the map is Annexure 8-A. In the said map disputed shop is shown by letters C D H I. The shop in possession of thelandlord is shown by letters A C I J O N. The frontage of the portion in possession of the landlord is 14 feet. If due to shortage of accommodation the said portion is divided into two shops by partitioning the same then it does not mean that landlord has got no bonafide need. If the said portion is divided in to two portions then each portion will have a frontage of only 7 feet. The fact that the said shop has been divided into two portions in order to accommodate one of the sons of the landlord, rather proves the bonafide need of the landlord. It clearly shows that landlord is short of accommodation and requires additional accommodation for his business and business of his sons. Two of the sons are helping the landlord in his business hence he requires a bigger accommodation. Learned counsel for the tenant petitioner has vehemently argued that the rejoinder affidavit of the landlord sworn on 27.3.1985 and filed before the Prescribed Authority, copy of which is annexure ''6' to the writ petition, contained such admissions which disprove the case of the landlord. In this regard particular reference has been made to paragraphs 7, 8 and 9 of the said rejoinder affidavit. Learned counsel for the landlord has argued that there are typing mistakes in the said copy. Learned counsel has supplied a Kachchi copy of the said rejoinder affidavit. In any case, I do not find any such admission in the said rejoinder affidavit, which may benefit the tenant in the least. In respect of comparative hardship both the courts below held that tenant did not make any effort to search alternative accommodation after filing of the release application. Supreme Court in B.C.Bhutada vs. G.R.Mundada (A.I.R. 2003 S.C.2713) has held that this by itself is sufficient to tilt the balance of hardship against the tenant.
Accordingly I do not find any error in the concurrent findings of bonafide need and comparative hardship recorded by the courts below in favour of the landlord. Writ petition is, therefore, dismissed.
However, there is one aspect, which requires consideration. The writ petition was dismissed on 20.2.2004. On that date learned counsel Sri A.N.Srivastava for respondent landlord was present. Thereafter restoration application was filed on 5.5.2005. The said restoration application was also dismissed in default on 20.7.2005. On that date also learned counsel for the respondents Sri Srivastava was present. On the said restoration application on 6.7.2005 it was directed that petitioner should not be evicted till 20.7.2005. By the said order it had also been directed that substitution application (for substitution of L.Rs of landlord respondent no. 1), should also be positively filed. On 20.7.2005 while dismissing the restoration application in default stay order was also vacated. Thereafter another application was filed on 22.7.2005 for setting aside the order dated 20.7.2005. The said application was directed to be listed on 21.9.2005 by order dated 2 (or 7).9.2005. By the said order it was also directed that until 21.9.2005 petitioner should not be evicted. The stay order was passed in the presence of learned counsel for respondents also. Thereafter on 21.9.2005 it was stated that in spite of stay order dated 2.9.2005 (or 07.9.2005) petitioner had been evicted on 14.9.2005.
Substitution application had also been filed on 5.9.2005. The Legal Representatives of landlord respondent no. 1 engaged counsel, who was heard. As far as dispossession of the petitioner inspite of stay order is concerned, stand of the Legal Representatives of landlord respondents is that due to communication gap in between them and their counsel they could not know about the stay order. However, tenant petitioner deserves some compensation for eviction in spite of stay order. Learned counsel for landlords has also argued that copy of stay order was not filed or communicated by the tenant, hence compensation/damages may be reduced.
Keeping in view all the facts and circumstances of the case it is directed that landlords-respondent shall pay Rs. 15,000/- as compensation to the tenant-petitioner for his eviction in spite of stay order. This amount shall be paid within two months from today, failing which possession shall be redelivered to the tenant for six months.
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