Jagdish Saran vs The VIIIth A.D.J. and Another <BR>Vishnu Saran Agarwal Vs State of U.P. and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the parties.

First Writ Petition:

In this writ petition several supplementary affidavits were filed and at each occasion time for supplementary counter affidavit and then supplementary rejoinder affidavit was sought. Now the volume of the file is inversely proportional to the rent. Hence matter could not be heard earlier.

This is tenant''s writ petition arising out of proceedings for eviction/release initiated by landlord original Respondent No. 2 Smt. Vishnu Sharan Agarwal since deceased and survived by legal representatives in the form of P.A. Case No. 29 of 1982. Prescribed Authority, Chandausi District Mooradabad rejected the release application through order dated 28.05.1983. Property in dispute is a shop rent of which is Rs. 25/- per month and original Petitioner was tenant thereof since 1947. Against the order of the Prescribed Authority original landlord filed R.C. Appeal No. 34 of 1983 which was allowed by VIII A.D.J. Mooradabad on 14.04.1986. Order of Prescribed Authority was set aside and release application was allowed.

The need set up in the release application was for Mukesh Sharan son of the original landlord and now one of the Respondents after the death of the original landlord. Landlord alleged that he had 5 sons out of whom Mukesh Sharan was youngest and had completed his education. Tenant pleaded that mental condition of Mukesh Sharan was not good and he was not capable of doing business and that other shops were available to landlord. Mukesh Sharan had filed his own affidavit before the Prescribed authority on 07.11.1982. Tenant moved application for cross examination which was allowed and Mukesh Sharan was cross examined on 01.03.1983. At the end of the cross-examination Mukesh Sharan stated that he had not filed any affidavit. However, on the next day i.e. 02.03.1983 he filed an application stating therein that under some mistake and confusion he had stated that he had not filed any affidavit while in fact the affidavit had been filed by him. Said application was not disposed of by the Prescribed Authority. Mukesh Sharan on 15.05.1983 filed another affidavit stating therein about his need for the shop in dispute. The lower appellate Court held that Mukesh Sharan in his cross-examination had categorically stated he would do the business of electrical fittings and goods from the shop in dispute and that he had some experience of the same also. Lower appellate Court held that said oral statement was sufficient evidence. The tenant nowhere stated before the Courts below that Mukesh Sharan was having any other source of income or was employed anywhere. In this regard the only thing which was emphasised by the tenant was mental condition of the Mukesh Sharan. The lower appellate Court held that Mukesh Sharan was competent to do business. Regarding other property, the lower appellate Court held that no shop in vacant state was available to the landlord. Tenant was doing Halwai business from the shop in dispute.

Tenant Petitioner Jadish Sharan has also died on 14.07.2008. Substitution application to bring on record his widow and four sons has been allowed on 25.11.2010.

Some affidavits have been filed by the tenant particularly supplementary affidavit dated 25.08.2008 stating therein that during pendency of the first writ petition (which itself is a sort of record) several shops became available to the landlord, however he did not use them and some of the shops were sold. In the counter affidavit, landlord stated that no shop in vacant state of good condition was available to him and some shops were sold to tenants and some were in a highly dilapidated condition. In this regard reference was made to a judgment given by me on 20.05.2003 in Writ Petition No. 19041 of 2003, Bhura Mal v. Vishnu Saran and Anr. The landlord of the present writ petition was landlord Respondent in the said writ petition and another tenant Bhura Mal was Petitioner. In that case also the tenant had argued that two shops were available to the landlord. (The said case was in respect of need of another son of the original landlord) and it was held that two shops pointed out to be available to the landlord were in dilapidated condition. The landlord has in rebuttal stated that the shops are in dilapidated condition.

Supreme Court in several authorities has held that position of need of the landlord will have to be seen as on the date of filing of the release application and subsequent developments may be taken into consideration only if they completely wash away the need like acquisition of suitable accommodation by the landlord and user of the same by him for the purpose for which release application was filed. I have discussed this aspect in detail in Diptee Singh v. A.D.J. 2006 (1) A.R.C. 157.

In this case several Supplementary affidavits, Supplementary counter affidavits and Supplementary rejoinder affidavits have been filed. This practice is severely censured.

Tenant also filed a Supplementary affidavit dated 21.10.2010 stating that Bhuwnesh Saran Agarwal one of the sons of original landlord gave a notice to the tenant that after the death of the original landlord a family partition had taken place and the shop in dispute had fallen in his share hence now the release order which was passed for the need of Mukesh Prasad cannot be enforced. Affidavit in rebuttal of the same has been filed by the landlord copy of which was given to the learned Counsel for the tenant on 25.11.2010. The affidavit has been filed along with an application dated 25.11.2010 praying for punishing the deponent of the above affidavit filed by the tenant. The application is supported by affidavit of Bhuvnesh Saran himself and he has stated that no such notice was given by him as alleged. I do not propose to punish Mahesh Chandra - Petitioner No. 2 however, what he has done is severely condemned.

On 25.8.2008 a Supplementary affidavit was filed by the tenant alleging in para- 9 thereof that several shops have become available to the landlord bearing No. 130 to 138. Supplementary counter affidavit to that Supplementary affidavit has bee filed by the landlord on 31.3.2009. In para-10 of the Supplementary counter affidavit reply to the allegation of availability of the shops has been given. In respect of shop No. 131 it has been stated that the son of the outgoing tenant forcibly re-occupied the same and then it was got released by the landlord under Section-16 of the Act on 11.5.1994 and the said shop was 100 years old and it became khandahar not having any roof. Shop No. 132/133 was in tenancy of Bhura Mal which was released against which writ petition No. 19041 of 2003 was filed which was decided on 20.5.2003. The said shop was got vacated for Yogesh Saran another son of the original landlord. Regarding shop No. 134 it was stated that it was also dilapidated (all the shops pointed out by the landlord to be available to the tenant were in the same building) and as it had fallen down hence open piece of land was sold to Onkar Singh Yadav and his wife by sale deed dated 25.3.1994. Similarly in respect of shop No. 135 it was stated that it was in dilapidated condition and roofless and the same had also fallen down and its portion was included in the adjoining shop in which another son of the landlord was doing business.

In this manner it is abundantly clear that no shop in good condition became available to the landlord. The tenants have not been able to point out that Mukesh Prasad is doing business anywhere.

As far as comparative hardship is concerned, this writ petition itself is pending for 25 years. Tenant did not make any effort to purchase any other shop or take any other shop on rent. The only temptation to continue in the shop in dispute appears to be Rs. 25/- per month rent which is virtually as well as actually no rent.

Accordingly, in my opinion selling the shop to the sitting tenant or availability of a shop in dilapidated condition or not in a good condition does not warrant to deny the right of the landlord to seek release.

It is important to note that in spite of several affidavits filed in this writ petition, in no affidavit any allegation has been made that Mukesh Sharan the son of the original landlord for whose need release application was filed is doing any work. Even during arguments the only thing which was stated was that his mental condition was not good.

He was examined in Court, hence it cannot be said that he is either mad or totally incompetent to do any work. Weakness of mind has got various degrees. Even if he is not very sound still he may take help of some servant for doing business.

Accordingly, there is no merit in the first writ petition, hence it is dismissed.

Tenant-Petitioner is granted six months time to vacate provided that:

Within six weeks from today tenant files an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlord-Respondent.

For this period of six months, which has been granted to the tenant-Petitioner to vacate, he is required to pay Rs. 6,000/- (at the rate of Rs. 1000/- per month) as rent/damages for use and occupation. This amount shall also be deposited within six weeks before the Prescribed Authority and shall immediately be paid to the landlord-Respondent.

In case of default in compliance of any of these conditions tenant-Petitioner shall be evicted through process of Court after six weeks. It is further directed that in case undertaking is not filed or Rs. 6,000/- are not deposited within six weeks then tenant-Petitioner shall be liable to pay damages at the rate of Rs. 2500/- per month since after six weeks till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs. 6,000/- the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2500/- per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application u/s 23 of the Act.

Second Writ Petition:

As far as second writ petition is concerned, it is directed against an interim order passed in a suit (O.S. No. 89 of 2005) filed by the tenant for injunction before Civil Judge (J.D.) Chandausi. As tenant has been directed to be evicted hence no order is required to be passed in the said writ petition. Proceedings of the said suit shall remain stayed for six months and after six months it shall be dismissed as anfractuous.

Writ petition is disposed of accordingly.