Abrar Ahmad vs Shri Subhash Chand

Dilip Gupta, J.—The landlord has filed this petition to assail the judgment and order passed by the Appellate Court u/s 22 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the ''Act'') by which the Appeal filed by the tenant has been allowed and the application filed by the landlord u/s 21(1)(a) of the Act for eviction of the tenant from the shop in dispute on the ground that he bona fide required it to establish his son in business was rejected.

The sole reason assigned by the Appellate Court for holding that the landlord did not bona fide require the shop in dispute is that during the pendency of the application filed by the landlord before the Prescribed Authority, an identical adjoining shop was vacated by another tenant and so the need of the landlord could be satisfied from the said shop.

Leaned counsel for the petitioner submitted that, in fact, the landlord bona fide required the shop in dispute and that, in any case, in view of the decisions of this Court in Punit Kohli v. Vinod Kumar Jain and Ors. 2008(1) ARC 159 and in Shakuntala Devi Rathod (Smt.) v. Smt. Raj Kumari and Ors. 2008 (1) ARC 242 the tenant cannot dictate to the landlord the place from where the son of the landlord should establish his business.

The proposition of law laid down in the aforesaid decisions cannot be doubted but in the present case, the Appellate Court has found, as a fact, that the adjoining shop was vacated by another tenant and the shop in dispute was identical to that shop and so the need of the landlord could be satisfied from this shop. The Courts have repeatedly held that subsequent events can be taken into consideration and if it is found that during the pendency of the release application before the Prescribed Authority or during the pendency of the Appeal u/s 22 of the Act some other accommodation becomes available to the landlord and the need of the landlord can be satisfied from that accommodation than in that case it cannot be said that the need of the landlord still subsists.

In Gulabbai Vs. Nalin Narsi Vohra and others, an order of eviction was passed against the tenant on the ground of bona fide need of the landlord. Subsequent event of shifting family of the landlord to a spacious bungalow constructed by him during the pendency of appeal, was considered by the Supreme Court.

In Hasmat Rai and Another Vs. Raghunath Prasad, the Supreme Court held that when an eviction was sought on the ground of personal requirement of the landlord, such requirement must continue to exist till the final determination of the case and it was observed:

It is now convertible that where possession is sought for personal requirement, it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but also subsist till the final decree or order for eviction is made. If in the meantime events have crept up which would show that the requirement of the landlord is wholly satisfied then in that case his action must fail and in such a situation it is not incorrect to say that such decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration the subsequent events.

These decisions of the Supreme Court were followed by the Supreme Court in Kedar Nath Agrawal (Dead) and Anr. v. Dhanraji Devi (Dead) by Lrs. and Anr. AIR 2004 SCW 5789 and Ram Kumar Barnwal v. Ram Lakhan AIR 2007 SCW 3250.

In this connection reference can also be made to two decisions of this Court. In Gauhar Hasan v. Addl. District Judge, Saharanpur and Ors. 1981 ARC 226 it was observed:

It is settled law that if a landlord has more than one accommodation the landlord cannot be compelled to choose one particular accommodation and to apply for the release of the same and it is always open to the landlord to select any of the accommodation for his own use. This is not an absolute proposition. The choice which has to be exercised by the landlord cannot be an arbitrary choice. The choice has to be based on reasonable grounds. It depends upon the facts and circumstances of each case. In the instant case, as I have already observed above, the portion of the adjacent shop which is as large as the shop in dispute itself is lying vacant. In such a situation respondent No. 3 could have reasonably applied for release of the portion of the adjacent shop, which was lying vacant and not apply for the release of the shop in dispute by dislodging a tenant, who is already carrying on business in the said shop. The observations, made, to the contrary in the impugned order are, therefore, not sound in law.

In Badri Prasad and Ors. v. Munna Lal and Ors. 1981 ARC 629 this Court also observed:

...Likewise it cannot be disputed that the fact that some accommodation came in possession of the landlords during the pendency of the release application which was stated to be sufficient or at least partly sufficient to meet their needs, is a material fact for the consideration of the question as to whether the need of the landlord was bona fide.

In view of the aforesaid decisions, it has to be held that the need of the landlord was not bona fide as the alleged need set up by him could well have been satisfied from the adjoining shop.

Learned Counsel for the petitioner also contended that the landlord has a big family and, therefore, in such circumstances the need of the other family members should have been examined but no material has been placed before the Court to show that the need of any other family member was even set up in the release application or before the Appellate Court. In such circumstances the contention of the learned Counsel for the petitioner cannot be accepted.

There is, therefore, no merit in this petition. It is, accordingly, dismissed.