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Judgment
S.P. Mehrotra, J.—This writ petition under Article 226 of the Constitution of India has been filed by the petitioners, inter alia, praying for quashing the judgment and order dated 1482003 (Annexure No. 10 to the writ petition) passed by the Additional District Judge (Court No. 10), Kanpur Nagar (Appellate Authority).
The dispute relates to a portion on the ground floor of Premises No. 11/99 II, Maqbara Gwaltoli, Kanpur Nagar, the details whereof are given in the release application referred to hereinafter. The said accommodation has hereinafter been referred as the �disputed accommodation�.
It appears that the respondent No. 2 filed a release application against Bashir Ahmad, predecessorininterest of the petitioners herein, under Section 21(1)(a) of the U.P. Act No. XIII of 1972 (in short �the Act�).
It was, inter alia alleged in the said release application that the respondent No. 2 was the owner and landlord of the said Premises No. 11/99 II, MaqbaraGwaltoli, Kanpur Nagar, and the said Bashir Ahmad was the tenant of the disputed accommodation in the said Premises; and that the respondent No. 2 required additional accommodation; and that the comparative and constructive hardship lay in favour of the respondent No. 2. The said release application was registered as Rent Case No. 7 of 1998. Copy of the said release application has been filed as Annexure No. 1 to the writ petition.
It further appears that the said Bashir Ahmad contested the said release application and filed his written statement, copy whereof has been filed as Annexure No. 2 to the writ petition.
It was, inter alia, alleged in the said written statement that the respondent No. 2 used to collect rent from the said Bashir Ahmad; and that the disputed accommodation was let out by Khaliq to the said Bashir Ahmad 30 years back, and he used to collect rent and issue rent receipt; and that in 1988 when Khaliq lastly went to Pakistan, he asked the said Bashir Ahmad to pay rent in future till the next instruction to his wife''s brother Qamaruddin, i.e. respondent No. 2, to whom Khaliq also handed over the keys of his portion; and that the said Bashir Ahmad started paying rent to the respondent No. 2, and the respondent No. 2 started issuing rent receipt on behalf of the said Khaliq.
It further appears that a replication/counter objection was filed on behalf of the respondent No. 2, copy whereof has been filed as Annexure No. 3 to the writ petition. It was, inter alia, alleged in the said replication/counter objection filed on behalf of the respondent No. 2 that the respondent No. 2 was the owner and landlord of the house in question; and that Khaliq gifted the house in question to the respondent No. 2, and thereafter, he migrated to Pakistan in 1983, and now he had died there.
It further appears that the parties filed affidavits and the documentary evidence in support of their respective cases.
The learned First Additional Judge, Small Cause Court/Prescribed Authority, Kanpur Nagar by the judgment and order dated 1952000 dismissed the said release application filed by the respondent No. 2.
It was, inter alia, held by the learned Prescribed Authority in the said judgment and order dated 1952000 that there was relationship of landlord and tenant between the respondent No. 2 and the said Bashir Ahmad. The Prescribed Authority believed the version of the respondent No. 2 regarding oral Hiba in his favour by the said Khaliq in respect of the house in question, and disbelieved the denial made by the said Bashir Ahmad in this regard.
The Prescribed Authority in the said judgment and order dated 1952000, inter alia, further held that the respondent No. 2 failed to establish bona fide need for the disputed accommodation; and that the comparative hardships were also in favour of the said Bashir Ahmad. Copy of the said judgment and order dated 1952000 passed by the Prescribed Authority has been filed as Annexure No. 8 to the writ petition.
Thereupon, the respondent No. 2 filed an Appeal under Section 22 of the Act against the heirs and legal representatives of the said Bashir Ahmad (the petitioners herein). The said Appeal was registered as Rent Appeal No. 58 of 2000.
By the judgment and order dated 1482003, the learned Additional District Judge (Court No. 10), Kanpur Nagar (Appellate Authority) allowed the said Rent Appeal No. 58 of 2000, and set aside the said judgment and order dated 1952000 passed by the Prescribed Authority, and allowed the said release application filed by the respondent No. 2.
It was, inter alia, held by the Appellate Authority that the learned Prescribed Authority had correctly held that the respondent No. 2 was the owner and landlord on the basis of oral Hiba in respect of the house in question. It was, inter alia, further held by the Appellate Authority that the need of the respondent No. 2 was genuine and bona fide; and that the comparative hardships were in favour of the respondent No. 2. Copy of the said judgment and order dated 1482003 has been filed as Annexure No. 10 to the writ petition.
Thereafter, the petitioners have filed the present writ petition seeking the reliefs mentioned above.
I have heard Sri P.K. Srivastava, learned Counsel for the petitioners at length. It is submitted by the Sri Srivastava that the finding on the question of oral Hiba was erroneous as the Appellate Authority did not consider the admission of the respondent No. 2 contained in his statement recorded in Suit No. 230 of 1995 (Annexure No. 9 to the writ petition), copy whereof was annexed as additional evidence before the Appellate Authority. It is further submitted by Sri Srivastava that there was variance in the averments made by the respondent No. 2 regarding oral Hiba, and as such, the Appellate Authority erred in believing the case of the respondent No. 2 regarding the oral Hiba.
I have considered the submissions made by the learned Counsel for the petitioners. The Prescribed Authority in the said judgment and order dated 1952000 on a consideration of evidence on record held that there was relationship of landlord and tenant between the respondent No. 2 and the said Bashir Ahmad, predecessorininterest of the petitioners. The Prescribed Authority further believed the version of the respondent No. 2 regarding oral Hiba in favour of the respondent No. 2. The said finding recorded by the Prescribed Authority in the said judgment and order dated 1952000 was confirmed by the Appellate Authority in the said judgment and order dated 1482003 on a consideration of the evidence on record. A perusal of the said judgment and order dated 1482003 shows that the Appellate Authority applied its mind to the evidence on record on the question of oral Hiba. Merely because a particular evidence has not been specifically mentioned in the said judgment and order dated 1482003, it cannot be said that the Appellate Authority did not apply its mind to the said evidence.
Reference in this regard may be made to a decision of this Court in Civil Misc. Writ Petition No. 9160 of 2003, Suresh Kumar Gupta v. Girja Shankar Shankadhar, decided on March 13, 2003. In the said decision, this Court held as follows:
�The propositions which, amongst others, can be deduced from the above decisions are as follows:
(a) What is necessary for a Court of Appeal is to apply its mind to the oral and documentary evidence on record in recording findings of fact, but it is not necessary for the Court to specifically refer to each piece of oral and/or documentary evidence.
(b) If a perusal of the judgment of the Court of Appeal shows that the Court has recorded findings of fact after scrutinizing the oral and documentary evidence on record, such findings cannot be said to be vitiated merely because there is no specific reference to certain oral and/or documentary evidence.
(c) Such findings of fact cannot be interfered within Second Appeal under Section 100 Code of Civil Procedure merely on the ground of nonconsideration of the evidence which has not been specifically mentioned in the judgment of the Court of Appeal.
(d) If, however, a perusal of the judgment of the Court of Appeal shows that the Court while recording findings of fact, has not at all applied its mind to certain material oral and/or documentary evidence, and this is why, there is no specific reference to such evidence in the judgment, then the findings of fact are vitiated which can be interfered within Second Appeal under Section 100 of the Code of Civil Procedure.
It is true that the above propositions have been laid down with reference to the provisions of the Code of Civil Procedure, but the principles underlying the said propositions may be applied to the proceedings under the Act.�
The above principles, in my opinion, support the conclusions drawn above with regard to the question of consideration of the said statement of the respondent No. 2 in Suit No. 230 of 1995.
Even otherwise, the statement of the respondent No. 2 in Suit No. 230 of 1995 (Annexure No. 9 to the writ petition), which was filed before the Appellate Authority, clearly contained the statement of the respondent No. 2 that the said Khaliq had made oral Hiba in favour of the respondent No. 2 in respect of the house in question. Therefore, the said statement in fact supports the finding regarding oral Hiba in favour of the respondent No. 2. The submission made on behalf of the petitioners is evidently misconceived.
The question as to whether there was oral Hiba in favour of the respondent No. 2, is a question of fact. The Prescribed Authority as well as the Appellate Authority have recorded findings of fact on the said question on consideration of the evidence on record. No illegality or perversity has been shown in the said findings of fact recorded by the Prescribed Authority as well as the Appellate Authority. Merely because another view of the evidence is possible, is not a fit ground for interference with the said findings of fact by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.
The Appellate Authority has further recorded findings on the questions of bona fide need and comparative hardships in favour of the respondent No. 2 on a consideration of the evidence on record and taking into consideration the relevant factors.
Learned Counsel for the petitioners has tried to assail the said findings recorded by the Appellate Authority. In my opinion, the findings on the questions of bona fide need and comparative hardships are findings of fact. No illegality or perversity has been shown in the said findings of fact on the questions of bona fide need and comparative hardships recorded by the Appellate Authority. Therefore, no interference is called for with the said findings on the questions of bona fide need and comparative hardships.
In view of the aforesaid discussions, I am of the opinion that this writ petition lacks merits, and the same is liable to be dismissed. The writ petition is dismissed accordingly.