Mohd. Sharif vs Abdul Salam

Rakesh Tiwari, J.—Heard counsel for the Petitioner and perused the record.

Landlord -Abdul Salam, Respondent in this petition, filed an application u/s 21(1)(a) of U.P. Act No. 13 of 1972 for release of a portion of house No. 101/67, Colonelganj, Kanpur, at the ground floor consisting of one room, common latrine and bathroom, inter alia on the ground that his family consists of nine members and they are living in a portion comprising of one room, one very small room, verandah, kothari on the first floor and one temporary Unshed on second floor ; that his sons are doing work of sewing belts and embroidery on the ground floor which is the only source of their livelihood ; that his children have grown up and their marriage is due but the accommodation with the landlord is too inadequate and insufficient for residential purpose to accommodate his entire family and that he or any member of his family does not own or possess any other house.

The aforesaid release application was registered as Rent Case No. 5 of 2006, Abdul Salam v. Mohd. Sharif,in the court of Additional Civil Judge (S.D.), court No. 2/Prescribed Authority, Kanpur Nagar.

The Petitioner tenant did not contest the case before the trial court. However, in spite of noting the fact that landlord had bona fide need of the accommodation in dispute, the trial court rejected the release application vide order dated 6.4.2008 on a hyper technical ground that landlord had not stated that his hardships were comparatively more than the tenant.

Aggrieved by the judgment and order dated 6.4.2008, the landlord filed Rent Appeal No. 123 of 2008, Abdul Salam v. Mohd. Sharifin the court of District Judge, Kanpur Nagar. Summons were issued to the tenant Petitioner by registered post A.D. at the correct address but the same returned with postal remark that tenant was not available. The lower appellate court therefore deemed the service to be sufficient by its order dated 17.3.2009 in view of ratio laid down in M/s. Madan and Co. Vs. Wazir Jaivir Chand,

After summoning original record, the lower appellate court by its judgment and order dated 24.2.2010 allowed the rent appeal of the landlord holding that the trial court had accepted bona fide need of the landlord but has committed an illegality in holding that the landlord has not stated that his comparative hardships were greater than the tenant.

It appears that counsel for the landlord had argued before the lower appellate court was that since the tenant had not appeared before the trial court as well as appellate court, there can be no standard for comparing hardships and it was sufficient that plea of bona fide need of the landlord was found to exist by the court below. According to the landlord, the question of comparative hardships would have been relevant had the tenant appeared before the court below and that plea of bona fide need and hardships was sufficient in the facts and circumstances of the case. He relied upon the following decisions in support of his above contention, Subha Rao and Ors. v. VI Ith Additional District Judge, Deoria and Ors. 1993 (1) ARC 362: 1993 (2) AWC 981; Dayalunmal v. Third Additional District Judge, Pratapgarh and Ors. 1989 (2) ARC 51; Mukesh Kumar Jain v. Laxmi Narain Gupta and Ors., 2009 (1) ARC 794 and Haider Ali and Others Vs. IXth Addl. District Judge and Others, wherein it has been held that where the tenant does not appear, it is not possible to compare the hardships and bona fide need of the landlord is sufficient to determine need of the accommodation.

It may also be noted here that in Haider Ali''s case (supra), this Court has laid down that if the point of comparative hardships is not taken by the landlord due to inadvertent mistake of his counsel, the landlord should not be punished for it. In my opinion plea of bona fide need encompasses the question of "hardship" and the Court can evaluate comparative hardship between the landlord and the tenant only in cases where they both are before the Court with their circumstances for comparing the hardships and where only one party appears before the Court, the case is ought not to be rejected on hyper technicality as in the present case.

After decision in the appeal, notices were issued to the Petitioner by the court of Additional Chief Metropolitan Magistrate Vth, Kanpur Nagar in R.C. Misc. No. 10/23/2010 for appearance fixing 17.8.2010. According to contention of counsel for the Petitioner, Parwana for Dakhal has already been issued and that Petitioner tenant has filed an application for recall of the lower appellate court order.

Since the Petitioner tenant has not appeared before the courts below, it appears that present writ petition has been filed with a view to delay execution proceedings.

In view of the fact that recall application filed by the Petitioner is pending before the lower appellate court, this Court is not inclined to interfere with the matter. The Petitioner may persue his remedy before the lower appellate court and if so advised, may file an application for expeditious hearing of the recall application.

The writ petition is accordingly dismissed. No order as to costs.