Satish Kumar vs IXth Additional District Judge and Others

S.R. Singh, J.—Dinesh Kumar arrayed as a party-Respondent No. 3 in the instant petition, applied for release of the premises in question u/s 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (In short the ''Act''). His case as set out in the application for release was that after graduation in science, he spent years in Job-hunting and had reached the age of 31 years without any success and when his frantic efforts to secure a job did not pay off, he decided to settle and establish himself in Sarafa business in the shop in question independent of his brothers and other family members and to reinforce his preference for Sarafa business, he had obtained a training certificate in relation to the said business. The shop in question, according to the landlord, was situate at a place which is most ideal for Sarafa venture. It was alleged that the Petitioner herein arrayed as opposite party in the release application had a small utensil business in the shop in question which he could shift to another place and in fact initially, he had assured to vacate the shop but subsequently, avarice winged his urge to wangele Pagree money (Premium) and accordingly he resiled and is still occupying the shop. The application for release was resisted by the Petitioner inter alia on the grounds that the alleged need of the landlord was far-fetched and could not be characterised as bona fide and genuine one and that in the event of the release application being allowed, he (tenant) would be exposed to the perils of greater hardship vis-a-vis the landlord.

The Prescribed Authority by its judgment and order dated 16.9.1988, rejected the application on the finding that the need of the Respondent-landlord was far from bona fide and genuine and that the tenant would suffer greater hardship in the event of release application being allowed. It was held by the prescribed authority that the Landlord''s brothers were settled in their respective business and he too could float his business in his......shop No. 53 situate at Chhota Bazar Dibai, which was being used by his mother for storing Kerogas Chulhas. Aggrieved, the Respondent landlord went up in appeal which culminated in being allowed vide judgment and order dated 7th November, 1989, passed by IXth Addl. District Judge, Bulandshahr who held that the need of the Respondent-landlord was bona fide, urgent and real and that the balance of comparative hardship also learned in favour of the landlord. The appellate authority recorded a categorical finding that the shop No. 53 situate at Chhota Bazar Dibal which was actually offered by the Landlord''s mother to the Petitioner-tenant, was not the Ideal one for Sarafa business. As regards shop No. 120, situate at Mohalla Bazar Kalan, the appellate court held that it was the property of Landlord''s brother Surcsh Kumar wherein a business in the name and style of Firm Madan Lal Dinesh Kumar, was being run in which Suresh Kumar and his mother Smt. Narayani Devi had half share each. The tenant''s plea that the shop belonged to Dinesh Kumar, did not commend itself for acceptance by the appellate authority. Similarly, shop No. 118, situate at Bazar Kalan was held to be owned by Rajesh Kumar which was released in favour of Rajesh Kumar pursuant to the judgment and order dated 3.4.1988. In the like manner, godown Nos. 455, 565 and 458 were found not befitting the scheme of Sarafa business, being located at the outskirts of the City and also by reason of the same being godowns. Similarly, in respect of shop No. 111 also, the appellate court found that it was In the name of Landlord''s father Ram Swarup who had since sold it away.

At the same time, the appellate court also held that since the prescribed authority rejected the Landlord''s release application on the solitary ground that he could set up his business in shop No. 53 at Chhota Bazar Dibai and since the tenant did not file any cross-objection as against the adverse finding recorded by the prescribed authority regarding other shops, it was not open for him to agitate any plea based on shops other than shop No. 53, situate at Chhota Bazar Dibal. Sri K. M. Dayal, appearing for the Petitioner emphatically urged that the appellate authority was not Justified in repelling the Petitioner''s contention based on shops other than the shop No. 53 merely because no cross-objection was filed by the Petitioner. The learned Counsel urged that the Petitioner could support the order passed by the prescribed authority by challenging the adverse findings recorded by the prescribed authority even without filing cross-objection. The provisions of Order XLI, Rule 22, CPC are not intended for application to appeals preferred u/s 22 of the Act as held in Kunwar Krishna and Ors. v. Prescribed Authority, Orai 1980 U.P. Rent Control Cases 379, reliance on which was placed by the learned Counsel appearing, for the Petitioner, but in the said situation, it has also been held therein that the appellate authority could reverse or rescind an order only In so far as it may be necessary for giving relief to the Appellants.

So far as the question whether a Respondent to an appeal u/s 22 of the Act can support the order under appeal by challenging the adverse findings recorded by prescribed authority without filing a cross-objection is concerned, I am of the view that the appellate authority has the power u/s 10(2) of the Act to confirm, vary or rescind the order under appeal or remand the case to the prescribed authority for rehearing and by virtue of the said provision, the appellate authority could have gone so far as to reverse any adverse finding recorded against the Petitioner who had won the case at the level of the prescribed authority and thereby, maintained the final order passed in his favour for such a power has to be read in Section 10(2) to effectuate the express power to ''confirm'' the order under appeal as conferred thereunder, but in the Instant case, as noticed above, the appellate authority has, in fact, reckoned with Petitioner''s argument regarding various alternative accommodations which, according to him, were available for the landlord and has virtually affirmed the findings recorded by the prescribed authority in respect of the shops other than shop No. 53 situate at Chhota Bazar Dibai. Accordingly, the observations made by the appellate authority in paragraph 7 of the judgment that since the Petitioner had not filed cross-objection, he would not be permitted to make good by assailing the adverse finding recorded against him, would be of no consequence to the Petitioner.

That part, as urged by Sri. M.K. Gupta, and held by the Supreme Court in Mrs. Meenal Eknath Kshirsagar v. Traders and Agencies JT 1996 (6) SC 468, "If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient, it is not for the courts to dictate him to continue to occupy such premises."

The observations aforesaid though made in the context of residential accommodation, may usefully be quoted in connection with the Landlord''s business requirements as well. In Dr. Saroj Kumar Das v. Arjun Prasad Jogni 1987 SC in Supreme Court and Full Bench Rent Cases 432, it was taken by the Supreme Court as a settled principle of law that the alternative accommodation must be reasonably suitable and If it is not so, then mere availability of alternative accommodation will not be a ground to refuse a decree for eviction if otherwise, the courts are satisfied about the genuine requirements of the landlord. The principle laid down by the Supreme Court in the above noted decision is applicable to the facts of the present case on all fours inasmuch as the finding recorded by the appellate court is that the need of the Respondent landlord was bona fide, genuine and urgent.

In view of the above discussions, the petition fails and is dismissed. Interim order, operating in the instant case, shall stand discharged.

After the judgment was delivered, the learned Counsel appearing for the Petitioner urged that some time be given to the Petitioner to vacate the premises. Upon a consideration of the facts and circumstances of the case, it is hereby provided that in case the Petitioner gives an undertaking before the prescribed authority, within a month agreeing to vacate the premises and deliver vacant possession to the Respondent-landlord within a period of three months, he shall not be evicted pursuant to the impugned order for a period of three months.