Govind Lal vs IInd Addl. D.J.Jhansi & Anr.

S.U. Khan, J.—Both these writ petitions have been filed by landlords. First writ petition was filed by Govind Lal and the second writ petition by Mohan Lal, Sohan Lal and Prakash Chandra, who are sons of Govind Lal, petitioner of the first writ petition. Govind Lal died during the pendency of the writ petition and has been substituted by his legal representatives, including his sons i.e. the three petitioners of the second writ petition, his wife and daughters. In the first writ petition, respondent No. 2 Sri Ram is the tenant of a shop. In the second writ petition respondent No. 2 Hukum Chand Jain (since deceased and survived by L.Rs) was also tenant of a shop. Both the shops are adjoining.

First writ petition arises out of release application filed by petitioner Govind Lal, against tenantrespondent No. 2 Sri Ram under Section 21 of U.P. Act No. 13 of 1972 before the Prescribed Authority, Jhansi which was registered as case No.62 of 1983. In the said release application Govind Lal stated that he was doing the business of selling Paan (betel leaves) from a wooden shop (KHOKHA), which was kept on the land of Sri Bhuvanendra and that the said KHOKHA was about two kilo meters away from his residence. It was stated in the release application that landlord had two grown up sons Mohan Lal and Sohan Lal and that he required the shop to settle them in business. It was further stated that landlord himself was finding it difficulty due to his old age to daily attend his shop which was two kilo meters away from the residence. Tenant filed written statement and stated that the Paan shop of landlord was quite famous so much so that the locality where the said shop was situate was popularly known by the name of Govind Chauraha. It was further stated by the tenant that another shop of the landlord which was in the tenancy occupation of one Nagaria had been vacated and landlord could use the same. There was some confusion regarding the first name of Nagara. Prescribed Authority Jhansi allowed the release application through judgment and order dated 1871984. Against the said judgment and order tenant Sri Ram filed R.C. Appeal No. 36 of 1984. Appellate Court himself inspected the premises in dispute and the other premises said to be available to the landlord. Appellate Court through judgment and order dated 1311986 allowed the appeal, set aside the judgment and order of the Prescribed Authority and rejected the release application of the landlord, hence the first writ petition. The tenant in his appeal had stated that Maithali Saran Nagaria was the tenant of another shop on behalf of the landlord and he had vacated the said shop. On the application of the tenant himself, Maithali Saran Nagaria was examined as Court witness by the Appellate Court. However, Maithali Saran Nagaria clearly stated that he was never tenant of Govind Lal in any shop. Landlord stated that the name of his other tenant was Chunnulal Nagaria, who had not vacated the shop in his tenancy occupation. Tenant did not file any affidavit of Chunnulal Nagaria. Tenant got examined wrong Nagaria who stated that he was never the tenant. In spite of all these things, Appellate Court held that Chunnulal Nagaria, the other tenant of the landlord had vacated the shop. Appellate Court stated that if the said shop had not been vacated then landlord should have filed the affidavit of Chunnu Lal Nagaria. This fact that another tenant of the landlord had vacated the shop was asserted by the tenant hence the burden to prove the said fact was upon him. Moreover, tenant himself requested for examination of Maithali Saran Nagaria, the alleged tenant of the landlord who had vacated. Sri Maithali Saran Nagaria appeared as a witness and denied the allegation of the tenant. Tenant did not make any further request for examination of correct Nagaria i.e. Chunnulal Nagaria. It is quite strange that in spite of it the Appellate Court held that the real tenant i.e. Chunnulal Nagaria had vacated the shop. The said finding is clearly erroneous in law.

Tenant had asserted that sons of the landlord were assisting him in his business. Even the need of the landlord could not be rejected on the ground that he was carrying on business from a tenanted shop or from a shop which was on licence with him. While deciding the question of bona fide need availability of a tenanted accommodation or an accommodation of which landlord is licensee cannot be taken into consideration vide M.E. Kshirsagar v. M/s Traders and Agencies, AIR 1997 SC 59 and G. K. Devi v. Ghanshyam Das, AIR 2000 SC 656 and G. Lal v. Kalawati Bai, AIR 2002 SC 2572 (para 26). However, as the landlord has died, hence there is no need to pursue this point any further.

Appellate Court refused to release the shop in dispute for the need of the two sons of the landlord on the ground that they were assisting their father in his flourishing business of Paan selling. It has been held by the Supreme Court in Shushila v. A.D.J., 2003 (52) ALR 160(SC) : 2003 (9) AIC 156 and A. Kumar v. Mustaquim, AIR 2003 SC 532, that the fact that sons are helping their father in his business or participating in the said business, is no ground to reject the release application for settling the sons in independent separate business.

In respect of the shop, which was in tenancy occupation of Nagaria, Appellate Court observed that in the Commissioner''s report it was mentioned that when ever the Commissioner inspected the premises the said shop was found closed and it contained some bags etc. and it appeared that the said shop was closed for a long period. If a tenant is keeping the tenanted shop closed for a long period and has also substantially removed his effects there from still landlord does not get right to take possession of the said shop unless tenant voluntarily hands over the possession to the landlord. Under Section 12 of the Act such shop may be deemed to be vacant and open to release/allotment. However, landlord has got no right to take possession of the said shop by himself. As such, the said shop cannot be said to be available to the landlord.

In any case, landlord had stated that his two grown up sons Mohan Lal and Sohan Lal required separate shops for starting their independent separate business. Even if the shop in which Nagaria was the tenant had been vacated by him, landlord still required two shops for his two sons. Shop vacated by Nagaria could satisfy only the need of the landlord himself and not of his two sons.

In respect of comparative hardship, Prescribed Authority had recorded the finding that tenant had two other shops available to him. Lower Appellate Court in this regard held that the shop in dispute was taken on rent by the father of respondent No. 2 Sri Ram, who was the only opposite party in the release reapplication. The Appellate Court further found that in the shop in dispute Devendra Kumar, younger son of Sri Ram was doing business and he was also tenant after the death of his father. Devendra Kumar does not appear to have filed any impleadment application to put forward his hardship. In any case, after the death of the tenant, all his heirs inherited the tenancy jointly and if shop is available to one of the joint tenants, it can be said that the entire body of joint tenants has got alternative shop available. It was found that two shops were available to the tenant. Two shops are sufficient to satisfy the need of both i.e. Sri Ram and his brother Devendra Kumar. Nothing was shown on behalf of the tenants that either he or his brother Devendra Kumar made any efforts to search for alternative accommodation after filing of the release application. This by itself was sufficient to tilt the balance of cooperative hardship against the tenant.

Lower appellate Court held that the need of the landlord was not bona fide only and only on the ground that the shop vacated by Chunni Lal Nagaria was available to the landlord. This view was clearly erroneous in law, firstly for the reason that it was not at all proved that by the time Appellate Court allowed the appeal the said shop had been vacated. Even if the said shop was available, landlord had pleaded and proved his own need and the need to settle two of his sons Mohan Lal and Sohan Lal as well hence release applications could not be rejected on the ground of availability of that shop. Accordingly first writ petition is allowed. Judgment and order passed by the Appellate Court is set aside and judgment and order passed by the trial Court/Prescribed Authority is restored.

Tenant respondent is granted six months time to vacate provided that:

(1) Within one month from today he files an undertaking before the Prescribed authority that on or before the expiry of period of six months he will willingly vacate and handover possession of the shop in dispute to the landlord.

(2) For this period of six months which has been granted to the tenant to vacate they are required to pay Rs. 3000/ (at the rate of Rs. 500/ per month) as damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord.

In case of default in compliance with either of these conditions, tenant shall be evicted after one month through process of Court.

It is further directed that in case undertaking is not filed or Rs. 3000/ are not deposited within one month then tenant shall be liable to pay damages at the rate of Rs. 2,000/ per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs. 3,000/ the accommodation in dispute is not vacated on or before expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2,000/ per month since after six months till actual vacation.

As far as the second writ petition is concerned, landlords petitioners of the said writ petition i.e. Mohan Lal, Sohan Lal and Prakash Chandra sons of Govind Lal, petitioner of the first writ petition purchased the shop in dispute on 731984 from is previous ownerlandlord. Respondent No.2 Hukum Chand Jain was the tenant of the said shop since before its purchase by the petitioners. Petitioners filed release application seeking release of the said shop on the ground of their bona fide need under Section 21 of UP Act No. 13 of 1972 on 171987, which was registered as P.A. Case No. 63 of 1986. Prescribed Authority through judgment and order dated 891987 allowed the said release application. Against the said judgment and order respondent No. 2 Hukum Chand Jain filed R. C. Appeal No. 25 of 1989. District Judge Jhansi allowed the appeal through judgment and order dated 411993, hence the second writ petition by the tenant.

The Appellate Court mainly placed reliance upon the inspection report of the Presiding Officer of the Appellate Court in appeal which is subject matter of the first writ petition. Appellate Court held that admittedly during pendency of the proceedings Nagaria had vacated the shop which was in his tenancy occupation. Appellate Court further held that in the business of their father, which was quite flourishing, landlords were participating or at least they could participate. In respect of comparative hardship both the Courts below held that tenant had established grocery business from the shop/room which was part of his residential house situate in Sagar Gate. The Prescribed Authority held that as tenant was doing business from another shop, hence landlord would suffer greater hardship in case release application was rejected than the hardship which would be faced by the tenant in case release application was allowed. In my opinion finding on the comparative hardship recorded by the trial Court is quite legal. Appellate Court illegally held that as tenant had several sons, hence the other shop from which he was also carrying on business could not mitigate his hardship.

As far as bona fide need is concerned, the three landlords of the second writ petition, who are real brothers required three shops one of the shops has been released through earlier part of this judgment in respect of first writ petition. The second shop available to the landlords is the one which was vacated by Nagaria. There is no third shop. Hence their need for the shop in dispute in the second writ; petition is quite bona fide. The shop from where their late father was carrying on business was only in the form of Khokha which was placed on the land of another persons which was on lease with their father. Such a shop cannot be said to be available, to the landlord. Accordingly judgment and order passed by the Appellate Court in the second writ petition is erroneous in law.

The arguments in these writ petitions were heard on 2282005 and judgment was reserved. Thereafter, a supplementary affidavit on behalf of tenants contesting respondents has been filed on 21 92005. Apart from it on 692005 an application had also been filed supported by affidavit. In para 6 of the said affidavit it was stated that their Counsel erroneously did not inform them about the hearing of the writ petition. It has also been stated in para 8 of the affidavit that their previous Counsel failed to protect their interest by making submissions with full preparation of the case. This application has been filed through another advocate Sri V. M. Zaidi. The allegation in the affidavit is quite wild. Learned Counsel for both the parties had fully argued the case on 2282005. In the supplementary affidavit dated 2192005 (filed after judgment was reserved) it has been stated that on 642000 petitioner No. 1 of the second writ petition had purchased 2/3rd share of a house in the form of shop. Photo copy of the sale deed has also been annexed as Annexure S.A. �1�. However, in the supplementary affidavit it has not been stated that Mohan Lal has started any business from the said shop. Through the sale deed only 2/3rd share was sold (even though it is mentioned in the sale deed that possession was delivered to purchaser Mohan Lal). A supplementary affidavit filed after the judgment is reserved cannot be taken into consideration. Even copy of this supplementary affidavit was not served upon the learned Counsel for the petitioner. However, copy of the application dated 692005 through which prayer for further opportunity of hearing was made was served upon the learned Counsel for the petitioner. In certain circumstances subsequent events can be taken into consideration. However, this fact must promptly be brought on record. According to the copy of the sale deed, the sale took place five years before. There is absolutely no explanation as to why the said fact was not brought on the record promptly. The Supreme Court in R. N. Gagar v. P. Das, AIR 2003 SC 632, has held that undue delay in bringing on record the subsequent event is fatal.

Accordingly, second writ petition is also allowed. Judgment and order passed by the Appellate Court is set aside. Judgment and order passed by the Prescribed Authority is restored. Tenant respondents are granted six months time to vacate provided:

(1) Within one month from today they file an undertaking before the Prescribed Authority to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the accommodation in dispute to the landlordpetitioners.

(2) For this period of six months which has been granted to the tenants to vacate they are required to pay Rs. 3000/ (at the rate of Rs. 500/ per month) as damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlordpetitioner.

In case of default in compliance with either of these conditions, tenantrespondents shall be evicted after one month through process of Court.

It is further directed that in case undertaking is not filed or Rs. 3000/are not deposited within one month then tenant petitioner shall be liable to pay damages at the rate of Rs. 2,000/ per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs. 3000/ the accommodation in dispute is not vacated on or before expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2000/ per month since on the expiry of six months till actual vacation.