Amulya Kumar vs Adj and Others

Shashi Kant Gupta, J.—This writ petition is directed against the judgment and order dated 17.03.2007 passed by the Additional District Judge, Court No. 13, Varanasi in Rent Appeal No. 15 of 2005 upholding the judgment and order dated 11.02.2005 passed by the Prescribed Authority/First Additional Civil Judge, (Senior Division) Varanasi in P.A. Case No. 30 of 2001 whereby the release application of the landlords u/s 21 (A) (4) of the U.P. Act No. 13 of 1972 (hereinafter referred to as the ''Act'') has been allowed.

The brief facts of the case, as set out in the writ petition, are as follows:

An application u/s 21 (A) (4) of the Act was filed by the landlords-Respondents No. 3 and 4 against the Petitioner on the ground of bona-fide need alleging that the shop in dispute is required by them to settle their unemployed son namely, Shyam Kumar after setting up a business in his favour in the shop in dispute. The said application was contested by the Petitioner by filing his written statement alleging that the need of the landlords is neither bona-fide nor genuine and the tenant will suffer greater hardship in case he is evicted from the shop in dispute. The release application of the landlords was allowed by the Prescribed Authority/First Additional Civil Judge, (Senior Division), Varanasi, vide judgment and order dated 11.02.2005, holding that the need of the landlords was bona-fide and genuine.

Feeling aggrieved and dissatisfied with the order of the Prescribed Authority dated 11.02.2005, a Rent Appeal was filed by the Petitioner, which was also dismissed by the Additional District Judge, Court No. 13, Varanasi, vide the impugned order dated 17.03.2007. Hence, the present writ petition has been filed.

Heard learned Counsel for the Petitioner-tenant, learned Counsel for the Respondents-landlords and perused the material available on record. Learned Counsel for the Petitioner submitted that both the orders passed by the Prescribed Authority as well as the Appellate Court are based on a complete misreading of the case and misconception of the legal position. He further submitted that neither the landlords could able to prove their bona-fide need nor any hardship in their favour, as such, the finding on the question of bona-fide need and hardship stands vitiated. He also submitted that both the courts below have committed illegality in holding that the Petitioner-tenant can carry on business from his residential house situated in Mohalla Ganesh Mahal, Varanasi.

Learned Counsel for the Respondents-landlords has submitted that the judgments and orders passed by both the courts below are legally sound and in accordance with law and the finding of facts recorded by the courts below does not require any interference. He further submitted that the Petitioner-tenant has not made any effort to search out any alternative accommodation even after filing of the release applicant and the general merchant business of the Petitioner can be easily set-up in his residential house and No. hardship will be caused to him. After going through the material available on record, I find that the release application was filed by the landlords on the ground that they require the disputed shop to establish their unemployed son namely Shyam Kumar in furniture business and his other sons will also assist him. There is nothing on record to indicate that the Petitioner has made any effort to search out any alternative accommodation and even otherwise, he can shift his business of general merchandize to his house which is located in a Abadi area. I do not find any fault in the approach of the courts below particularly when the landlord who is having five grown up sons has No. alternative accommodation to establish his son Shyam Kumar. Both the Courts below have given cogent, convincing and satisfactory reasons while arriving at the conclusion that the need is bona-fide and genuine. The findings recorded are neither perverse nor based on any extraneous or irrelevant material. The appellate court below have on meticulous evaluation of evidence found the need of the landlords to be bona-fide and genuine and the comparative hardship tilts in favour of the landlords. Both the courts below have recorded concurrent findings of facts that the need of the Respondents-landlords for setting-up a furniture business for their unemployed son, namely, Shyam Kumar was genuine and bona-fide. The findings recorded by the courts below are based on the evidence and the materials available on record. As such, No. adverse inference can be drawn by this Court while exercising its jurisdiction under Article 226 of the Constitution of India. No. other point has been pressed by learned Counsel for the Petitioner-tenant.

I do not find any illegality or infirmity in the orders impugned in the writ petition. The writ petition is, accordingly, dismissed.

Learned Counsel for the Petitioner made a request that at least one year''s time may be granted to him to vacate the disputed shop so that his business may not suffer adversely. Learned Counsel for the Respondents-landlords has opposed the said plea but has submitted that he has No. objection if some reasonable time is granted to the Petitioner-tenant to vacate the shop in dispute.

As agreed by learned Counsel for the Respondents-landlords, nine months'' time is granted to the Petitioner-tenant to vacate the shop in dispute provided the Petitioner-tenant gives his undertaking in the form of an affidavit before the Prescribed Authority/First Additional Civil Judge, (Senior Division), Varanasi, within one month from today specifically stating therein that he will vacate and handover peaceful possession of the shop in dispute to the landlords/Respondents without inducting any third person within a period of nine months from today and will pay the entire arrears of rent including the current rent at the rate of Rs. 1,500/- per month upto the date of delivery of the vacant possession of the disputed premises within one month from today..

In case of default in compliance of the aforementioned conditions, the stay order shall automatically be vacated and it would be open to the Respondents-landlords to proceed to evict the Petitioner-tenant, if necessary, through coercive process with the aid of Police force.