Prakash Chandra Agarwal vs Addl District Judge, Lucknow and Others

Rakesh Sharma, J.

The judgment in the present case was dictated and delivered in the open Court on 12.5.2006, by which the writ petition was dismissed and as per latest law it has become the judgment of the Court. However, on the request of Sri Umesh Chandra, learned Senior Advocate appearing for the petitioner, it was not signed. Audacity (sicaudition) was given again on the request of learned Senior Counsel appearing for the petitioner.

At the outset, Sri Umesh Chandra, learned Senior Advocate has placed reliance on 1930 ILR 455. Maldahi v. Hargoven and AIR 1966 Allahabad 221 (Full Bench), Sangam Lal v. Rent Control and Eviction Officer Allahabad and others in support of his submission that a judgment delivered in open Court but not signed and sealed, it can be completely changed. He has relied on para 2 of Sangam Lal''s case (supra) to persuade the Court to allow him to put forth the case of the petitioner tenant and only thereafter the judgment and order dictated in open Court on 12.5.2006 maybe made final/binding or it may be recalled So far as the proposition of law laid down by the Full Bench in Sangam Lal''s case (supra) is concerned, I fully agree with the same. The said decision is binding on this Court. The Court has already permitted Sri Umesh Chandra, learned Senior Advocate and Sri B.C. Agarwal to make their submissions on merits of the matter and place their case the way they like.

Sri Umesh Chandra, learned Senior Advocate, has filed the following applications alongwith affidavits and documents:

(1) C.M. Application No.672 of 2006 for review/recall of the order dated 12.5.2006 passed by this Court.

(2) C.M. application No.673 of 2006 for recall of the order dated 12.5.2006.

(3) Third application filed on 19.5.2006 alongwith certain documents, and

(4) Rejoinder affidavit to the objection filed by the landlord''s counsel Sri Agendra Sinha.

Sri Agendra Sinha, learned counsel for landlordrespondent has resisted these applications by filing written objection on 19.5.2006.

Sri Umesh Chandra, learned Senior Advocate, has brought to the notice of the Court several subsequent developments which had taken place during pendency of this writ petition. He has placed on record a handwritten document, said to be a compromise between the parties executed on 9.3.1997. An application has been filed requesting the Court to decide the present writ petition on the basis of this compromise. Sri Umesh Chandra has submitted that the landlord Laxmi Narain Pal had agreed that he may not insist on execution of the release order and allow the petitionertenant to continue in the premises till 2014. The rent was enhanced. Some receipts duly signed by Laxmi Narain Pal have been filed to show that he was receiving enhanced rent. A formal application/compromise was drafted for submission in the Court on 2.8.2001 arrived at between the parties. According to him, the dispute between the parties has already stood resolved. Several terms and conditions have been spelt out in the compromise. He has further submitted on the basis of a document filed before this Court that a registered Will had been executed by Laxmi Narain Pal, the landlord on 31.5.2002, by which the landlord had separated his son Sushil Kumar Pal from the family. A private partition has become effective between Laxmi Narain Pal and his elder son Sushil Kumar Pal, for whose bona fide need the release application was allowed. Sushil Kumar Pal has purchased three shops in Laxmanpuri; he is now independently carrying on his milk business. This fact finds mention in the Will dated 31.5.2002. Thus, the need of the landlord for his son Sushil Kumar Pal has now ceased to exist. The landlord''s younger son Sudhir Kumar Pal has been given the property owned by the landlord at Narhi Bazar.

Sri Umesh Chandra, learned Senior Advocate, has on the basis of judgments reported in (1974) 1 SCC 675, Shikharchand Jain v. Digambe'' Jain Praband Karini Sabha and others: (1975) 1 SCC 770, Pasupuleti Venkateswarlu v. The Motor and General Traders and (2004) 8 SCC 76, Kedar Nath Agarwal (dead) and another v. Dhnraji Devi (Dead) by Lrs and another, submitted that this Court may take into account the above subsequent developments and hold that the landlord is not in bona fide and genuine need of the property now. The petitioner may be permitted to continue and remain in possession of the shop in dispute. The landlord and is elder son Sushil Kumar Pal are now comfortably carrying on their business

Sri Umesh Chandra, learned Senior Advocate, has also submitted on the basis of a decision reported in (2005) 4 SCC 1 20, Commissioner of Endowments and others v. Vittal Rao and others (Paras 16 and 17) that this case may now be decided on the basis of compromise arrived at between the parties. The High Court while exercising powers under Articles 226 of the Constitution of india has jurisdiction to pass appropriate orders. Such powers can neither be controlled nor affected by the provisions of Order 23 Rule 3 CPC. It would not be correct to say that the terms of Order 23 Rule 3 CPC should be mandatorily complied with while exercising, jurisdiction under Article 226 of the Constitution of India.

Sri Umesh Chandra has further contended that the landlord is already enjoying the enhanced rent. The ground for applying for release that he wanted the shop in question for his son Sushil Kumar Pal has now ceased to exist. The landlord now cannot take a somersault and say that he is still requiring the premises in possession of the tenant. On the basis of the decisions, as reported in (1994) 2 SCC 316, P.v. Papanna and others v. K. Padmanabhaiah; (2000) 5 SCC 708, Liaq Ahmed and others v. HabeeburRehman and (2001) 5 SCC 705, Deena Nath v. Pooran Lal, he has submitted that the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition, but also the fact whether any other suitable nonresidential accommodation is available to him for running his business. There must be an actual pressing need, not a mere whim or fanciful desire to get the tenant evicted. The learned counsel has laid much stress on the compromise, the Will executed by the landlord and other subsequent developments which took place during pendency of this writ petition under Section 34(1)(f) of U.P. Act XIII of 1 972. According to the learned counsel, this written and signed compromise, lawful agreement has to be seen and weighed by this Court.

In reply, Sri Agendra Sinha, learned counsel for the respondent landlord has denied that there existed a lawful agreement or a legal, valid compromise between the parties He has submitted that since the litigation was pending for several years, some negotiations took place between the parties and a draft was prepared on 9.3.1997. Sri Sinha has categorically denied that a legal, valid compromise or (lawful agreement was vetted by Sri K.B. Sinha, learned Senior Advocate, or any agreement or compromise became final and binding on the parties. The learned counsel has further submitted that the provisions of Order 23 Rule 3 CPC shall apply pursuant to Section 34 of U.P. Act XIII of 1972 for signing a lawful agreement between the parties. The strict compliance of Order 23 Rule 3 CPC should be made. He has placed reliance on AIR 1997 Delhi 317, 319 and 1997 Delhi Law Times 318, 321 (DB).

10, Sri Sinha has further submitted that the alleged compromise was acted upon as the conditions contained in Clauses 3. 4 5. 8 and 9 of the same were not complied with at all. Clause 1 0 of the said compromise clearly states that the decree dated 26.11 .1988 shall become executable if on receipt of intimation regarding construction of shop the petitioner does not occupy the same and vacate the premises occupied by him. It is to be noted that no construction was possible as the premises was not handed over to the petitioner There was no inclusion of a clause that in the event of nonperformance of the agreement, the party concerned would be entitled for execution and it would not render the decree inexecutable. It has been held in AIR 1986 Kerala 49, V.N. Sreedharan v. Bhaskaran that when a party has been stipulated under the compromise for performace of obligation, the Court has no power to extend the time provided. Sri Sinha has categorically submitted that the alleged compromise was never acted upon. The petitioner is trying to create a confusion to defeat the purpose of litigation initiated by the landlord for release of the shop. The alleged compromise was never brought on record before the Executing Court and this Court since 2001. It was when the judgment and order was dictated in open Court on 12.5.2006 that efforts are being made to manufacture grounds for reviewing the said judgment and order. He has also relied upon the decision as reported in AIR 1992 Allahabad 360, Budha Lal v. Ram Chand and various provisions of Specific Relief Act, 1963 and provisions regarding specific performance of contracts. According to the learned counsel, there is no compromise at all between the parties in the eye of law which can be regarded by the Court and the case be decided on the basis of said document.

Sri Agendra Sinha, learned counsel for the landlord has further submitted that this Court may also appreciate the subsequent developments which had taken place in the family of landlord Laxmi Narain Pal and his elder son Sushil Kumar Pal. When the release application was filed, the landlord had highlighted the need of his elder son Sushil Kumar Pal. He had pressed his need for augmenting his income to sustain a family of nine members. Now there are fourteen members in the family of the landlord. His three sons are married having their wives and two children each. His elder son Sushil Kumar Pal is still having one shop in Laxmanpuri and not six shops, as indicated by the petitioner''s counsel. There are four family units now which have to run their independent business to sustain themselves. All the four family units, three sons and Laxmi Narain Pal himself, are carrying on their independent business and still, greater need of the premises in question existed. As per learned counsel, the landlord Laxmi Narain Pal is having a very small shop in Narhi Bazar. His younger son Sudhir Kumar Pal and his family are in dire need of the shop in dispute. The family size has now increased and the only shop, which is in possession of the tenant, is urgently required to settle the grown up family members and to augment the family income. The release application was not submitted on only one ground of settling Sushil Kumar Pal in business but there were several other grounds also which were duly appreciated by the appellate authority while allowing the release application.

Sri Agendra Sinha has reiterated his earlier submissions which have been noted by this Court, that the petitioner Prakash Chandra Agarwal is a rich person. He is having following properties in Narhi Bazar, in the same vicinity/locality.

(i) House No 4125060, Narhi Bazar. In this premises, a flour mill and a Provision Store is being run in 7 ft x 14 ft shop

(ii) Shanti Sadan. This building was purchased by the petitioner in the year 1971.

(iii) Three flour mills (Ata Chakkis), including one in Bhuiyan Bazar, near Narhi Bazar.

(iv) Four shops in Narhi Bazar (Two shops in possession of the petitioner for funning business). One shop is entirely vacant, under the key and lock of the petitioner.

(v) Two shops vacated eight years back from Aizaj Ahmad and Meraj Ahmad.

Learned counsel for the respondent landlord has further submitted that the petitioner Prakash Chandra Agarwal is having his own tenants in the houses and the shops owned by him. He is enjoying the rental income from his property and his family members are comfortably occupied in business. On the other hand, the landlord Laxmi Narain Pal is still awaiting release of his shop to establish himself and fourteen member family, three married sons and grandsons requiring shop to settle them. His bona fide and genuine need is still existing. He and his sons shall face greater hardships if the shop in question is not released while the tenant shall continue with the above noted properties, owned by him in Narhi Bazar (in the same area of city of Lucknow).

Sri Agendra Sinha has further contended that by writing a Will, property rights do not flow in favour of a person. Laxmi Narain Pal is still alive and on the basis of said Will, it cannot be said that his son Sushil Kumar Pal has become absolute owner of all the properties of his father. Learned counsel for the landlord has placed reliance on AIR 2001 SC 1441, Vallampati Kalavathi v. Haji Ismail in support of his submission that while taking note of subsequent developments, the Court should keep in mind whether such material is relevant and can turn balance in the case. According to him, the crucial date shall be the date of institution of eviction proceedings i.e. submission of release application (However, the same circumstances still exist in the present case) and for this proposition, he has placed reliance on (2004) 5 SCC 772, Shakuntala Bai and others v. Narayan Das and others: AIR 2001 SC 803, Gaya Prasad v. Pradeep Srivastava: AIR 2002 SC 200, G.C.Kapoor v. Nand Kumar Bhasin and others: AIR 1997 SC 2510, Ansuyaben Kantilal Bhatt v. Rashiklal Manilal Shah and another: 2004 m ARC 414. Ram Sewak v. A.D.J. Etawah and others and a series of decisions of Apex Court as reported in AIR 2001 SC 803, AIR 2001 SC 1441, AIR 2002 SC 200, AIR 2002 SC 665, AIR 2003 SC 624 and AIR 2003 SC 632. His further submission is that the landlord is the best judge to assess his requirement for residential or business purposes and should get complete freedom in the matter, the tenant cannot dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises and the need of the landlord is bona fide and genuine. He has relied on AIR 1999 SC 100, Sarla Ahuja v. United India Insurance Co. Ltd.: AIR 2000 SC 534, Ragavendra Kumar v. Firm Prem Machinery and Co. and (1996) 5 SCC 353, Prativa Devi (Smt.) v. T.V. Krishnan in support of his above submission. Evidently the tenant is having better financial status than the landlord. He has in fact managed to get several shops, properties in the same area.

Sri Agendra Sinha has reiterated his earlier argument that the release application was filed in the year 1980. The petitioner has not made sincere efforts to find out alternative accommodation. However, in the present case, the tenant petitioner has several properties, shops and two buildings where he can comfortably carry on his business.

I have heard Sri Umesh Chandra, learned Senior Advocate assisted by Sri B.C. Agarwal, Advocate appearing for the petitionertenant and Sri Agendra Sinha, learned counsel for the respondentlandlord. I have also appreciated the material placed on record subsequent to the delivery of judgment and order on 12.5.2006, the alleged compromise and the caselaws cited by both the parties.

The petitioner has presented the alleged compromise dated 9.3.1997 as sheetanchor of his case and certainly it has to stand the test of validity at the threshold before it is allowed to become a ground to defeat the object of the respondent landlord. I have carefully considered the arguments advanced by both the parties and find force in the argument of Sri Agendra Sinha, learned counsel for the respondent landlord that the said document was not a lawful agreement or compromise as defined under Section 34(1)(f) of the U.P. Act XIII of 1972. It was not formally prepared or executed as per provisions of Order 23 Rule 3 CPC. Interestingly, this handwritten compromise said to be prepared on 9.3.1997 was not brought on record of this case while this writ petition is pending disposal since 1989. The learned counsel for the landlord has categorically submitted that the landlord is not prepared to accept this compromise and even till date he is persuading this Court to allow the release of the shop and evict the tenant from the premises. In my opinion, such a piece of paper, which is in the shape of a hand written draft prepared on 9.3.1997, cannot be regarded as a valid, legal compromise entered into between the parties. No legal rights flow from this document. The case law cited by Sri Agendra Sinha, as referred to above, support my conclusions in this regard.

From the above facts, it is amply clear that the landlord is still having bona fide, genuine and pressing need for the shop in question. Subsequent to the filing of the writ petition, the size of his family has enlarged and his need has multiplied. He has three grown up grand sons; all are married having their own children. From one family unit, there are now four family units who need proper accommodation to run their independent business. The landlord Laxmi Narain Pal and his son Sudhir Kumar Pal need a shop to augment income to support their grown up family. As per facts and circumstances of the case indicated above, the bona fide need of the landlord still persists. The tenant shall not face any hardship if he is evicted. From the above facts, it is amply clear that he is having several properties in the same locality i.e. Narhi Bazar. He has got not one shop, but four shops and two buildings. The details of his properties have been brought on record and have been discussed by the appellate authority Economically, the tenant is much more well off than the landlord and can adjust even when he is evicted from the shop in question. The tenant has laid much emphasis on the acquisitions of Sushil Kumar Pal, forgetting the fact that he has also grown economically and has acquired several properties subsequent to the filing of the release application before the Rent Control Officer/Prescribed Authority.

In view of what has been discussed above, no interference is required. I find no cogent reasons for the change of my judgment and order dictated in open Court on 12.5.2006, dismissing the writ petition.

The aboveindicated applications of the petitioner for recall/review of the judgment and order dated 12.5.2006 and the application with the prayer for deciding the writ petition in terms of alleged compromise dated 2.8.2001 are rejected.

This judgment and order pronounced in the open Court today in the presence of learned counsel for the parties shall be treated as part of the judgment and order dictated on 12.5.2006. Now the said judgment and order dictated on 12.5.2006 is also being signed and the same shall become operative and binding on the parties from today.

The parties shall ensure compliance of the Court''s order within the stipulated period.

(Ordered accordingly)