Altaf Hussain vs Kishwar Ali and Others

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

Pursuant to a decree passed in Original Suit No. 429 of 2002, Anwar Ali v. Kishwar Ali and Ors., the respondents claim themselves to be the owners. Tenancy of the petitioner was terminated by the landlord vide notice dated 28.7.2003 which was replied by the tenant vide his reply dated 13.8.2003. Thereafter, release application u/s 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act ) was filed by respondent landlord on the ground of bonafide need which was registered as P.A. case No. 8 of 2003, and was contested by the petitioner tenant by filing his written statement.

It appears that Prescribed Authority rejected the release application vide judgment and order dated 10.5.2006. Aggrieved Kishwar Ali-landlord filed P.A. Civil Appeal No. 25 of 2006, Kishwar Ali v. Altaf Hussain and Ors., u/s 22 of the Act.

An application ( paper No. 18 G) was filed by the petitioner thereafter for amendment in the written statement on the ground that Afsar Ali- son of the landlord, who was running Reliance P.C.O., had closed down his business and second son of the landlord Arshad had settled at Delhi and is engaged in business of tailoring work on contract basis there.

The aforesaid amendment application was objected upon by the landlord inter alia that shop in question was needed by him for himself and his sons. It has further been stated in the objection that his son Arshad had gone to Delhi for the purpose of getting some work but he is unemployed.

The court below after considering the facts brought to its notice, rejected the amendment application vide order dated 14.7.2010 holding that landlord himself required the shop under the tenancy of the petitioner and the shop in which the tenant alleged that tailoring business is being carried on by the respondent does not belong to him but belongs to Anwar Ali and that there is no proof of landlord another son establishing his business at Delhi.

Counsel for the petitioner has contended that facts of this case are covered by the decision rendered by the Apex Court in Kedar Nath Agrawal (dead) and Anr. v. Dhanraji Devi (Dead) By LR''s and Anr. 2004 (57) ALR 419, wherein the Court considered the provisions of Section 21(7) of the Act in respect of tenanted shop on the ground of bonafide need and greater hardships by the landlord. In that case subsequent events were taken into consideration. The application for release of shop was allowed by the Prescribed Authority on the ground of bonafide need and greater hardship being in favour of the landlord and the order was upheld in appeal. The original applicants in that case had expired and their three daughters were married who were living in their matrimonial homes. In those circumstances, the Apex Court held that the High Court erred in not taking into account the subsequent events and remitted the matter back to the High Court with direction to consider the matter afresh in the light of provisions contained in Section 21(7) of the Act.

It appears from the aforesaid judgment, that subsequent events may be taken into account in the following circumstances:

the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or

(ii) it is necessary to take notice of subsequent events in order to shorten litigation; or

(iii) It is necessary to do so in order to do complete justice between the parties.

In the instant case, the petitioner has only made bald allegations and the requirement of taking into account the subsequent events as held in aforesaid case cited by the petitioner himself are not satisfied.

Counsel for the petitioner then relied upon the decision rendered by the Apex Court in Gaya Prasad v. Shri Pradeep Srivastava 2001 (42) ALR 685. In that case release was sought on the ground of clinic for son. Subsequently it was discovered that the son has joined medical services. In those circumstances, effect of subsequent facts was considered and it was held that to over shadow the genuineness of need, the subsequent events must be of such nature and dimension that the need should have been completely eclipsed by it.

Lastly reliance has been placed by the counsel for petitioner on a decision of this Court in Mohd. Naeem v. Gaindan Lal and Ors. 2009 (77) ALR 774, wherein it has been held that while considering he amendment application, a liberal view should be taken and normally should be allowed unless it changes the nature of the suit.

In the present case, the petitioner tenant has failed either to establish the shop in which the landlord is said to be carrying tailoring business with his brother Anwar Ali did not belong to Anwar Ali or that for this reason the landlord was precluded from establishing himself or his sons in independent business in the shop under tenancy of the petitioner. He has also failed to establish that other son of the landlord namely Arshad is engaged in business at Delhi where he is permanently shifted, hence the averments made in the amendment applicant appear to be without any basis which have been considered by the court below and rejected by it assigning cogent reasons.

The court below has also found that partition between two brothers Anwar Ali and Kishwar Ali was genuine in view of settled law that every member of the family of the landlord has a right to establish his own business. The subsequent developments which according to the tenant came to his notice have neither been established nor have rendered bonafide need of the landlord inappropriate or overshadowed the relief claimed by the landlord.

Counsel for the respondent landlord submits that matter has been listing for last about four years for hearing before the court below and that the amendment application was filed with a view to delay the proceedings.

It appears from the arguments as well as record, that application for amendment has been filed only to delay hearing of the case and it is not bonafide. The decisions relied upon by the counsel for petitioner are not applicable in the facts and circumstances of this case as noted earlier.

For all the reasons stated above, the writ petition is dismissed with cost of Rs. 15000/- ( fifteen thousand only) to be recovered from the petitioner as arrears of land revenue within one month.

The court below is directed to proceed with hearing of the case and conclude it at the earliest if possible on the next date of listing.