Dinesh Kumar Srivastava vs Additional District Judge and Another

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

P.A. Case No. 5 of 2001 was filed by Sri Ram Milan, Respondent No. 2 before the Judge Small Causes Court/Prescribed Authority, Gorakhpur u/s 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for release of the shop in dispute against the father of the Petitioner who was tenant in that shop.

Hari Shankar Srivastava, father of Petitioner died during the pendency of the proceedings and Petitioner Dinesh Kumar was substituted in his place as his sole legal heir and representative.

The Judge Small Causes Court/ Prescribed Authority, Gorakhpur vide judgment and order dated 1.9.2008 allowed the aforesaid P.A. Case No. 5 of 2001.

Aggrieved by the aforesaid judgment and order dated 1.9.2008, the Petitioner filed Rent Appeal No. 19 of 2008, Dinesh Kumar v. Ram Milan before the District Judge, Gorakhpur. The appeal was transferred to Court No. 2 of Additional District Judge, Gorakhpur where it is still pending. An amendment application appears to have been moved by the Petitioner on 21.9.2010 on the ground of subsequent development by which he has challenged the bonafide need of landlord Respondent No. 2, which has been appended as Annexure-2 to the writ petition.

The Petitioner has prayed for amendment of his written statement in the following manner.

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fnus''k dqekj foi{kh la[;k 1 @ 2 @ vihykFkhZ

ge fd fnus''k dqekj foi{kh la[;k 1 @ 2 ;g lR;kfir djrs gSa fd bl izkFkZuk i= ds vijksDr dFku esjs O;fDrxr Kku o dkuwuh jk; ds vk/kkj ij lR; gSA

lR;kfir fd;k vkt

fnukad % & 21 & 09 & 2010 bZ- LFkku % & nhokuh dpgjh] xksj[kiqj

Objections were filed by the Respondent landlord inter alia that his son is still unemployed and that the thatched hut/shop is situated over another land towards southeast corner of the land where the shop in dispute inside a narrow lane where the work of junk or ''Kabadi'' is being done by another person to whom it has been given on rent for the reason that neither that place nor the thatched hut/ shop thereupon is suitable for the purpose of business of general merchant in which his son is to be engaged.

The Additional District Judge, Court No. 2, Gorakhpur by the impugned order dated 19.10.2010 rejected the amendment application holding that the shop which has been referred by the tenant in which he has alleged that son of Respondent No. 2 is doing the work of ''Kabadi'' is situated in the southeast corner of the plot in a Gali where the shop of general merchant cannot be run. It has also recorded a finding of fact that the son of the Petitioner is still unemployed.

After hearing learned Counsel for the parties and on perusal of record it appears that open land was available at a distance in one corner of the field from the shop in dispute. It was under the tenancy of a person who was earlier selling country made liquor after constructing a thatch roof/shop from the said place which was therefore, given on rent to another person to do work of Kabad and it was not a place where business of general merchant could be run. The court below has found that P.A. case is pending since 2001 and at that time son of Respondent No. 2 was class X pass and aged about 19 years. Now, he is married having children and is still unemployed. The court below has also noted that the Petitioner wants to delay the proceedings by moving an unjustified amendment application with mala fide intention to prolong the agony and proceedings when the case was being listed for final arguments.

From perusal of the impugned judgment it also appears that the case is fixed for final hearing and could not be heard because of the amendment application moved by the Petitioner. The trial has begun and evidence of the parties has concluded and case is being listed for final arguments as such there is no illegality or infirmity in the impugned order. Considering the facts of the case in totality and for all the reasons stated above, the writ petition is dismissed. No order as to costs.