Ajay Katiyar vs Smt. Chhama and Others

Ran Vijai Singh, J.—Heard Sri Iqbal Ahmad learned Counsel for the petitioner and Sri Kuldeep Saxena learned Counsel appearing for the respondent.

Through this writ petition the petitioner has prayed for quashing of the judgment and order dated 20.2.2010 passed by Additional District Judge, Court No. 9 Kanpur Nagar in Rent Appeal No. 58 of 2004 as well as judgment and order dated 20.7.2004 passed by the Prescribed Authority, Kanpur Nagar in P.A. Case No. 57 of 1999 (Smt. Chhama and Ors. v. Ajay Katiyar and Anr.). Petitioner has also prayed for quashing of the orders dated 20.2.2003 and 09.7.2002 passed by the Prescribed Authority. Vide order dated 09.07.2002 petitioner''s application for appointment of Advocate Commissioner for spot inspection was rejected on the ground that the petitioner was not serious to pursue this application as even after number of calls he has not appeared. Whereas vide order dated 20.02.2003 another application to appoint Advocate Commissioner was also rejected. It is thereafter vide order dated 20.07.2004 the Prescribed Authority has allowed the application of the respondents landlord to release the accommodation in dispute and vide order dated 20.02.2010 the appeal filed against the judgment of Prescribed Authority was dismissed by learned Additional District Judge.

The facts giving rise to this case are that the respondents have filed an application u/s 21(1)(a) of the U.P. Urban Buildings (Regulations of Letting Rent & Eviction) Act, 1972 (hereinafter referred to as Act No. 13 of 1972) on the ground that there are eleven members in the family and they are living in one room. Out of eleven although the four persons are living at Delhi but they frequently visit to Kanpur. The petitioner happens to be tenant of one big room, one Kitchen, Store, Aangan, Varamda on the ground floor of the house and there are only four members in the respondents family, i.e., husband, wife and three kids. The original tenant was Late Sri Ram Kishan Katiyar and the present applicant petitioner is the son of late Ram Kishan Katiyar.

In reply to the release application an objection was filed by the tenant denying the bonafide need of the respondents. It was contended that there are five members in the tenant''s family and apart from that one daughter of late Ram Kishan Katiyar was married, but still living there. It was also contended that the landlord has desired to enhance the rent at Rs. 700/- per month and when the tenant refused, the release application was filed. It was also contended that the objector is a mechanic and is hardly earning Rs. 2000/- per month and in case release application is allowed, he will not be able to arrange the alternative accommodation. The genuineness of the need of the disputed accommodation was denied by the objector.

During the pendency of the release application, the present petitioner has filed an application for appointment of the Advocate Commissioner, as in the submissions of the tenant the landlord has not disclosed the real accommodation which has been occupied by them. There are two more rooms in the possession of the landlord. This application was rejected on 09.07.2002 on the ground that the applicant did not appear to press this application. However, after some time another application was filed by the tenant on the same ground which was rejected on 20.02.2003 on the ground that this application was filed at the time of final hearing of the release application. Thereafter the release application was allowed by the Prescribed Authority vide order dated 20.07.2004 holding that need of the landlord is genuine and comparative hardship is in favour of the landlord.

Aggrieved by that order the petitioner has filed an appeal which was numbered as Rent Appeal No. 58 of 2004. Before the appellate court the tenant has submitted that the release application was defective for non-joinder of the proper parties as the original landlord was late Lal Gopal Mehrotra and while filing the release application her wife Smt. Durga Devi was a not party. This argument was repelled by the learned Judge holding that the application for release can be filed by any one of the co-landlord.

So far as the findings with respect to the bonafide need is concerned the Appellate court has recorded that at least four rooms are required to satisfy the need of the landlord. The finding with respect to comparative hardship has also been found in favour of the landlord. Learned Judge while recording above findings has observed that during this long tenure the tenant has never tried to find out any alternative accommodation and after recording this finding the Appellate court has dismissed the appeal.

Sri Iqbal Ahmad learned Counsel for the petitioner while assailing these judgments and orders has submitted that the learned Prescribed Authority has erred in passing the orders dated 09.07.2002 and 2002.2003 in his submissions for coming to the right conclusion the spot inspect was necessary. In support of his submissions he has placed reliance upon the judgment of this Court reported in 2007 (2) 307 (Sanjay Kumar Katyal v. Smt. Kamlesh Gupta and Anr.) where this Court has held that the appointment of Advocate Commissioner for inspection of the spot is necessary, when the controversy is of such nature which can only be verified by the spot inspection. He has also brought on record the copy of the assessment record (panchsala) issued by Nagar Nigam Kanpur of the said house which finds that the disputed accommodation is consisted of four rooms set with varamda. In the submissions of Sri Iqbal Ahmad this is a necessary piece of evidence which could not be filed before the court below and that is essential for proper adjudication of the matter.

Refuting the submissions of Sri Iqbal Ahmad learned Counsel for the petitioner, learned Counsel for the respondent has submitted that the Prescribed Authority has not committed any error of law while passing the orders dated 09.07.2002 and 20.02.2003 rejecting the application of the petitioner-applicant for appointment of Advocate Commissioner. In his submissions the applicant was not serious to pursue his application before the Prescribed Authority. So far as filing of new piece of evidence, copy of the assessment record is concerned this was available since very beginning and the tenant has not filed the same before the Prescribed Authority/Appellate Court, therefore, it is too late to file the same. He has also submitted that both the courts below have recorded concurrent finding of fact with respect to the pressing need of the landlord and comparative hardship in their favour. Therefore, concurrent findings of fact recorded by the courts below should not be interfered with under Article 226 of the Constitution of India.

I have heard learned Counsel for the parties and considered their submissions. So far as the order dated 09.07.2002 is concerned this order was passed on an application filed by the tenant for appointment of the Advocate Commissioner for spot inspection on the ground that the landlord has not disclosed the correct accommodation as the landlord is occupying more than one room. This application was rejected as the petitioner did not appear before the Prescribed Authority to press this application. However, he has filed another application on 20.2.2003 on the same fact when the date was fixed for final hearing.

In between 09.07.2002 and 20.02.2003, the petitioner made no effort to file an application to recall the order dated 09.07.2002 by which the appointment of Advocate Commissioner was rejected in absence of his counsel and he permitted to proceed with the matter and when the case was at the final stage of hearing, the another application filed by him was rejected. I do not find any illegality in the order as the tenant was never serious to dispute the accommodation occupied by the landlord.

So far as the present piece of evidence filed by the petitioner with respect to the total accommodation of the house is concerned from the perusal of the same it transpires that this was of the assessment of the year 1987. Whereas the release application was filed in the year 1999. The case was pending before the court below for about 11 years and the applicant did not care to file this application. There is no explanation on record which may justify that the petitioner was unaware about this paper, what has been stated in the writ petition is that this could not be filed due to lack of legal advice. Otherwise also before the Prescribed Authority the tenant had disputed the accommodation occupied by the landlord and only for that purpose he has filed an application for appointment of Advocate Commissioner but he has allowed to reject this application in his absence. In view of that I am of the opinion that this is not the stage, when the tenant be again permitted to raise this point. Had it been a new development the matter would have been different.

So far as the finding with respect to the bonafide need, comparative hardship on the basis of material available on record is concerned, learned Counsel for the petitioner could not point out any perversity in the same by arguing that particular piece of evidence has either not been considered or mis read by the court below. In view of that I do not find any illegality in the impugned judgments.

The writ petition lacks merit and it is hereby dismissed.

In the last learned Counsel for the petitioner after consulting his client who is present in the court submitted that the tenant be provided at least one year time to vacate the premises as he is ready to enhance the rent by Rs. 700/- per month. In view of that considering the facts and circumstances of the case, it is provided that in case petitioner files an undertaking within a period of three weeks from today before the court below that he will vacate the premises by 1st June 2011 and will pay Rs. 700/- per month as rent, the eviction of the petitioner shall remain stayed upto 1st June 2011 provided the petitioner continue to pay rent w.e.f, from the month of May 2010. The rent of May be paid by 10th of June and for every succeeding month during stay by 6th date of each month. The rent of May, 2011 be paid at the time of vacation of the premises prior to or on 1st June, 2011. In case of default the interim order shall stand vacated and the respondent, may proceed in accordance with law.