Hulas Chandra Mundhra vs Mohan Lal Kayan

Manoj Misra, J.—Heard Sri Ashish Kumar Singh for the defendant-petitioner; Sri S.K. Pal for the respondents 1 to 4; and perused the record.

The present petition has been filed seeking quashing of the orders dated 04.03.2017 and 29.02.2016 passed by the Additional District Judge, Court No. 7, Kanpur Nagar and Additional Chief Metropolitan Magistrate, Room No. 1/Prescribed Authority, Kanpur Nagar in Rent Appeal No. 36 of 2016 and Rent Case No. 35 of 2010 respectively.

A perusal of the record would reveal that a release application was filed by the landlord by alleging that the accommodation in dispute was purchased by them and they had a large family which required the accommodation in dispute for their residential purpose, and as they were living in a tenanted accommodation, they had a pressing need for the said accommodation. The release application was contested by the tenant-petitioner claiming that the entire ground floor portion of the building comprising several rooms and a hall was in occupation of the landlord, which could easily satisfy their residential need and, therefore, there was no need for the accommodation in dispute. It was also stated that the landlord, after purchasing the building, had demolished a certain portion on the top floor of the building. That had there been need for residential accommodation then the top floor accommodation would not have been demolished.

The trial court, after examining the record at length, came to the conclusion that the ground floor accommodation which was in the possession of the landlord was being used for commercial purpose and was not suitable for residential purpose inasmuch as it did not have ventilation, etc. and the sale-deed of the building disclosed that it was partly used for commercial purpose. In respect of demolition of the top storey of the building, it was found that the same was not suitable for residence and therefore its demolition would not raise adverse inference in respect of need. The court below further found that the landlord had been residing in a tenanted accommodation at Birhana road. Accordingly, after comparing the hardship and upon finding the same to be in favour of the landlord, the release application was allowed. Thereafter, the appellate court by a detailed judgment and order, after considering the evidence placed by both parties, upheld the finding recorded by the Prescribed Authority and affirmed the order of release.

Learned counsel for the petitioner has assailed the order of release by contending that already sufficient accommodation was available on the ground floor of the building and therefore there was no bona fide need for the accommodation in the possession of the tenant.

I have carefully perused the record as well as orders passed by the court below.

This court finds that detailed finding has been returned by the courts below in respect of bona fide need of the landlord and a finding has been returned that the ground floor portion of the building was not suitable for residential purpose as it was designed for commercial purpose. Accordingly, once a finding has been returned on appreciation of the evidence on record, this Court finds no good reason to interfere with the said finding in exercise of its writ jurisdiction.

In so far as the question of comparative hardship is concerned, the court below has found that the landlord had been residing in a tenanted accommodation and, therefore, he cannot be deprived of his own property for residential use and the courts below also found that no serious effort was made by the tenant to search for an alternative accommodation during the pendency of the release proceeding.

In view of the above, this Court finds no good reason to interfere with the orders impugned and accordingly the prayer of the petitioner to set aside the orders impugned is rejected.

At this stage, learned counsel for the petitioner prayed for some time to vacate the premises.

Considering the facts and circumstances, this Court is of the view that the interest of justice would be served if the petitioner is allowed time up to 30th November, 2017 to vacate the premises.

Accordingly, this petition is disposed of by affirming the judgment and orders passed by the courts below subject to the observation that for a period up to 30th November, 2017, the petitioner shall not be evicted from the premises in dispute pursuant to the release order provided the petitioner by 30th May, 2017 furnishes an undertaking along with an affidavit in the Court of Prescribed Authority, Kanpur Nagar that he will handover vacant and peaceful possession of the premises in question to the landlord-respondent on 01st December, 2017.

It is made clear that if by 30th May, 2017 the aforesaid undertaking is not furnished in the Court of Prescribed Authority, Kanpur Nagar then the release order shall become executable forthwith. It is also made clear that if by 01st December, 2017 the petitioner fails to handover vacant and peaceful possession of the premises in question to the landlord respondent despite undertaking, it would not only be open to the landlord-respondent to execute the release order but he may also initiate proceeding against the petitioner for contempt of Court.