Anand Dev Gupta vs Bindeshwari Gupta and Another

Rakesh Sharma, J.—Under challenge is an order dated 13.7.1999, passed by the Additional District Judge/Special Judge (S.C./S.T. Act), Unnao in Misc. Appeal No. 115 of 1998, allowing the appeal of the landlady and directing for release of the shop in dispute within a specified period. The learned appellate court has reversed the order dated 19.11.1998, passed by the prescribed authority in Case No. 19 of 1992, Smt. Bindeshwari and Anr. v. Anand Dev Gupta, filed u/s 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972), hereinafter referred to as the Act.

The Respondents are owners of the shop in dispute, situate at Kachehari Road, Unnao. The Petitioner Anand Dev Gupta is a tenant of the said shop. The Respondents filed an application for release of the premises/shop on 7.10.1992, on the ground that they wanted to settle one Rajendra Prakash, son of landlady Respondent No. 1 in business. He had attained the majority and after completing his education was in dire need of the shop to start the business of selling ready-made garments. The husband of Respondent No. 1 was also a tenant of a nearby shop and for his eviction, litigation had already been started by his landlord. Indicating the compelling circumstances and the need to settle her grown-up son, the release application was submitted by the landlady u/s 21 of the Act. It was also indicated in the release application that a registered notice had already been sent to the tenant on 28.7.1992. Several markets had come up in the city of Unnao, where the tenant could have moved and settled himself. The tenant was selling bread, butter and biscuits from the shop in dispute.

The prescribed authority, Civil Judge (Senior Division), Unnao, rejected the release application u/s 21 of the Act on the ground that Rajendra Prakash, son of landlady Respondent No. 1 was financially strong and was already running a business in the city of Unnao. As per prescribed authority, the landlady had failed to prove her bona fide requirement. The Respondents assailed the judgment and order of prescribed authority by filing a statutory appeal, which was allowed by the appellate authority, i.e., Additional District Judge/Special Judge (S.C./S.T. Act), Unnao on 13.7.1999. Being aggrieved by this judgment, the Petitioner tenant has preferred this writ petition.

Sri S.K. Mehrotra, learned Counsel for the Petitioner has submitted that the finding recorded by the prescribed authority, that Rajendra Prakash, son of landlady Respondent No. 1, for whose need the release application was moved, was already running his own shop in the building owned by the District Co-operative Bank, was not challenged in appeal. The appellate authority has taken into consideration the extraneous facts, pleas regarding bona fide need of landlady''s second son Sanjai. The name of Sanjai did not find place in the release application, but the appellate authority has given weightage to the need of this second son of the landlady. According to Sri Mehrotra, the release of the shop could be considered only on the basis of the pleas set up in the release application and the pleas going beyond the application for release cannot be considered in appeal. The learned Counsel for the Petitioner has further submitted that Rajendra Prakash was independently running his business in a rented shop in District Co-operative Bank. The husband of landlady Respondent No. 1 was also running his own business in a rented shop. In these circumstances, the need indicated by the landlady was not bona fide and genuine. As per Petitioner, the findings recorded by the appellate court reversing the judgment and order passed by the prescribed authority are vitiated by manifest illegality; these were not based on relevant admissible material on record. The learned Counsel for the Petitioner has further contended that at the most, the appellate court could have remanded the case for re-consideration by the prescribed authority. He has placed reliance on the judgments, as in J. Jermons v. Aliammal and Ors. (1997) 7 SCC 382; Lalita Printers Stores v. IVth Addl. District Judge, Kanpur and Ors. 1981 ARC 649; Mata Prasad v. 1st Addl. D.J., Rae Bareilly and Ors. 1987 (5) LCD 181; Smt. Razia Khatoon v. 1st Additional District Judge, Badaun and Ors. 1997 (2) ARC 175: 1997 AWC 107 and Anant Ram Jain Vs. VIth Additional District Judge and Others, in support of his submissions.

Sri K. D. Nag, learned Counsel for the Respondents has opposed the writ petition. He has submitted that the landlady has discharged her burden to prove her bona fide requirement before the courts below. He has highlighted the following facts to prove the bona fide requirement of the Respondents:

(1) That Rajendra Prakash, son of landlady Respondent No. 1 had required the shop in dispute for running his business of selling ready-made garments. The Petitioner tenant was selling bread, butter and biscuits, for which an alternative shop situate at Mohalla Kabba Khera, Civil Lines, Unnao, was already offered. Considering the nature of landlady''s son''s business, the shop in question situate at Kachehari Road was most suitable. The Petitioner tenant declined the offer and this fact has come on the record of the lower court.

(2) That said Rajendra Prakash, son of landlady Respondent No. 1 is married, having a family which was growing. He was running his business of selling ready-made garments in a shop under the tenancy of one Purushottam Das. It has come on record that the shop was owned by the District Co-operative Bank, Unnao and was rented out to Purushottam Das and by his courtesy, Rajendra Prakash was selling ready-made garments from Purushottam''s rented shop. Thus, Rajendra Prakash, the eldest son of landlady, at the time of submission of the release application, was not having a proper accommodation or a rented accommodation to peacefully run his business and maintain his family.

(3) The husband of the landlady Respondent No. 1 was himself running his business in a rented shop. He was under imminent, instant threat of eviction, as proceedings of eviction had already been initiated against him by the landlord one Sri Hari Shankar Pandey, a reputed influential advocate practising at Unnao.

(4) The landlady''s second son Sanjay, who was born in 1997 had attained majority and was unemployed. The shop in dispute was also needed to provide him employment. At the time of making the release application, this second son of the landlady was minor. His name was not indicated in the release application. Later on, when he became major, the bona fide need was indicated to the prescribed authority and the appellate court. This fact was brought on record before the prescribed authority and was properly appreciated by the learned appellate court as an additional circumstance weighing in favour of the landlady.

Sri K. D. Nag, after highlighting the above facts, has submitted that the appellate court has properly considered the bona fide need of the landlady. Her two major sons were to be settled in life. Moreover, the husband of the landlady was also facing eviction proceedings. The whole family was going to suffer as they had no other means to sustain themselves.

Sri Nag has further submitted that the release application was filed on 7.10.1992. The Petitioner tenant has not made any serious effort to find out an alternative shop in the developing city of Unnao. It was pleaded before the learned courts below that the tenant could have found out an alternative accommodation in the shopping complexes, commercial areas, being raised in the developing city of Unnao. The Petitioner has failed to prove comparative hardships before the learned courts below. He could sell bread, butter and biscuits from any place or shop in the city of Unnao, but ready-made garments could be sold only in areas, where commercial or business activities were actively going on. Sri K. D. Nag has placed reliance on the following judgments in support of his submissions:

(1) Bharat Kumar Gupta and Ors. v. 7th Additional District and Sessions Judge, Aligarh and Ors. 1997 (15) LCD 585;

(2) Smt. Jamila Khatoon and Ors. v. Additional District Judge, Saharanpur and Ors. 2004 (22) LCD 576;

(3) Ram Sewak v. Additional District Judge, Etawah and Ors. 2004 (22) LCD 483: 2004 (1) AWC 434.

(4) Pramod Kumar Verma Vs. VI Additional District Judge, Bijnor and others,

(5) Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta,

(6) Sarla Ahuja Vs. United India Insurance Company Limited,

(7) Sardar Jaswant Singh v. 4th Additional District Judge, Kanpur and Ors. 1995 (13) LCD 1170 ; and (8) Arumugham (Dead) By Lrs. and Others Vs. Sundarambal and Another,

I have heard learned Counsel for the parties at length and perused the record.

The findings of fact recorded by the learned court below are that the landlady has fully proved her bona fide need. The balance of hardships has also laid in her favour. The learned appellate court after discussing the materials, evidence on record has concluded that the need of landlady is bona fide and genuine; it is greater than that of the tenant. These are findings of fact and this Court, in such situations, ordinarily does not interfere with the same in writ jurisdiction, as per law laid down by the Hon''ble Supreme Court of India in the case of Muni Lal and Others Vs. Prescribed Authority and Others, The husband of the landlady was carrying on business in a tenanted shop facing immediate threat of eviction. Rajendra Prasad, the elder son of landlady was carrying on business of selling ready-made garments due to courtesy of one Purushottam, who was himself a tenant of the shop owned by the District Co-operative Bank, Unnao. The appellate court has appreciated the need of landlady for her son Rajendra Prakash and I find no error in the same.

As far as the other son Sanjai is concerned, the appellate court has taken note of the relevant circumstance, his attaining the age of majority during pendency of litigation. This circumstance has been taken into consideration for assessment of hardships being suffered by the landlady. The appellate court has given due consideration to the facts indicated in the release application which was moved for the need of Rajendra Prakash, elder son of the landlady. The need of Rajendra Prakash was maintained at all stages of litigation including the stage of appeal. In the circumstances, it cannot be said, as suggested by the learned Counsel for the Petitioner, that extraneous material regarding need of Sanjai, the second son of the landlady, was unduly considered by the appellate court. In fact when this circumstance was brought to the notice of the appellate court, it was duty-bound to consider the same and give its finding thereon, as per law laid down by the Hon''ble Supreme Court of India in the case of Arumugham v. Sundarambal(supra). The Apex Court (vide para 14 of the said judgment) has laid down that it is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. In view of this, I hold that the appellate court has rightly appreciated the fact of second son of the landlady attaining majority and accordingly her need to settle him in life, besides the bona fide requirement of her elder son Rajendra Prakash.

It is noteworthy that the Petitioner tenant was offered an alternative accommodation in Mohalla Kabba Khera, Civil Lines in the city of Unnao, but he refused to accept the offer. The Petitioner was certainly not facing greater hardships than those faced by the landlady and her family.

This Court has also appreciated the submission of Sri K. D. Nag, learned Counsel for the Respondents that the Petitioner tenant has never brought on record anything to show that after filing of the release application, he had made any search for alternative accommodation. This by itself was sufficient to decide the question of comparative hardships in favour of the landlady, as held by the Hon''ble Supreme Court of India in a judgment in Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, and the recent judgments of this Court, one in Mohammad Arif v.II Ird Additional District Judge, Pilibhit, 2005 (2) ARC 793 . In the present case, the release application was submitted on 7.10.1992. The matter then remained pending disposal in appellate court for a long time. This writ petition was filed in the year 1999 and it is pending disposal in this Court since then. The Hon''ble Supreme Court has held in United India Insurance Co. Ltd. Vs. Kartick Chandra Mandal and Another, and R.C. Kesharwani v. Dwarika Prasad, 2002 (2) ARC 298 (SC), that when the matter is pending for long, remand must be avoided. The Hon''ble Supreme Court in its authority in Shail v. Manoj Kumar, 2004 ACJ 1213 , placing reliance upon Surya Dev Rai Vs. Ram Chander Rai and Others, has held that in exercise of writ jurisdiction, High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or Tribunal should have made. This Court is strengthened in arriving at its conclusion on the basis of the judgments cited by the learned Counsel for the Respondents as referred to above and the recent judgment of this Court as in Hasmat Ali v.V Ith Additional District Judge, Kanpur Nagar and Ors. 2006 (1) ARC 65.

In view of above discussion, I am not inclined to interfere in the impugned judgment and order passed by the appellate court on 13.7.1999. The writ petition being devoid of merit is dismissed.

However, considering the facts and circumstances of the case, the Petitioner is directed to vacate the shop in dispute within two months from today and hand over its peaceful possession to the landlady. The judgment and order passed by the appellate court dated 13.7.1999 shall be immediately implemented without any delay.

After the above judgment and order was passed, Sri S.K. Mehrotra, learned Counsel for the Petitioner has requested for allowing him six months'' time in place of two months, as indicated by the Court in the operative portion of the order.

This Court has already discussed in the judgment that the landlady''s husband is also facing eviction proceedings initiated against him by the landlord. Her elder son Rajendra Prakash is carrying on business by the courtesy of one Purushottam, who himself is a tenant of a shop of District Co-operative Bank, Unnao. Her second son Sanjai has also become major and needs some accommodation to settle him in life. Due to these reasons, this Court is of the view that three months'' time would be sufficient for the Petitioner to vacate the premises in question.

The request of Sri S.K. Mehrotra is dealt with accordingly.