Smt. Sharifan and Another vs XIth Additional District Judge and Others

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

This is a tenant''s petition. The landlady, respondent No. 3, purchased house in dispute vide sale deed dated 1.6.1989. She sent notice dated 10.9.1990, informed the petitioner that his tenancy is in a part of house in dispute. Considering of one room @ Rs. 50, that the tenement is in dilapidated condition and not a habitable condition as the walls have developed big cracks and have left their joints with passage of time and are in irreparable condition. It was also informed to the petitioner as tenant that he has also failed to pay the rent w.e.f. 1.6.1989 inspite of demand, as such his tenancy is determined, hence he should hand over vacant and peaceful possession of the house in dispute within seven days of the receipt of the notice the respondents alongwith arrears of rent w.e.f. 1.6.1989 otherwise proceeding in accordance with law for her eviction would be initiated by the landlord.

It appears from the notice that the house in dispute was in dilapidated condition and the landlord wanted to demolish the existing building and construct a new building on the same site.

Respondent No. 3, thereafter filed release application on 20.9.1990 u/s 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It was contested by the petitioner by filing written statement. An amendment application was also filed by the petitioner-tenant for amending his written statement bringing following text on record.

Clause 14 (a)-That the house in question is under the tenancy of O. P. since before its purchase by the applicant, from its earlier owner. The applicant has not been served with statutory notice of six months and the application has been moved within three years of the date of purchase of the house as such the same is not legally maintainable.

The petitioner also filed an affidavit dated November, 1991, that she has been informed that the plaintiff was not sole owner of the house and that the house is neither about 100 years old nor is in dilapidated condition. It was averred in the affidavit that part of the roof of first floor portion, in which the landlady was living earlier has been broken down by her and she has left the debris upon the roof of the ground floor portion with the sole motive that ground floor portion may cave in.

Averments were also made in the affidavit to the effect that the walls of the tenement were intact and strong enough to hold the weight of the entire building; that the house did not require any demolition and reconstruction. It was also averred that the grounds in this regards had been taken by the landlady only to give colour to the case. It was also denied that the land lady was living in two small rooms and it was averred that infact she is living in spacious house alongwith her family members in the adjacent house. It was stated in the aforesaid affidavit that the tenants had definite information that landlord have no building plan and no source to arrange the requisite amount for reconstruction, as such there was no question for vacating the accommodation in dispute in the circumstances.

It was denied in the aforesaid affidavit need of the landlady was bonafide and she would not face any comparative hardship, that notice was only a ruse to pressurise the tenant to increase the rent and in the alternate for her eviction from the house in dispute.

The, aforesaid facts in the affidavit were replied by the petitioner vide affidavit dated 20.10.1984 appended as Annexure-6 to the writ petition. The prescribed authority vide its order and judgment dated 2.11.1995 allowed the application of the landlady for release of the accommodation in dispute in tenancy of the petitioner inter alia holding that landlady had proved that map had been sanctioned for reconstruction of the building had been prepared by the Architect in accordance with bye-laws after the house had been inspected by him on the spot in presence of the petitioner tenant that the landlady had also submitted his report before Small Cause Court has found that the petitioner has herself has constructed a house of her own. The relevant findings are as under:

fookfnr edku dk eqvk;uk vkjdhVSDV bathfu;j Jh Mh0 ,u0 ukeiky }kjk ekSds ij tkdj fd;k x;k Fkk A ml le; foi{kh Hkh ekStwn Fkk A fujh{k.k djus ds mijkUr viuh fjiksZV o dSUVksesUV cksM+Z ds ckbZykt ds vuqlkj uD''ks ds lkFk rS;kj dh x;h fjiksZV o uD''ks ij Mh0 ,u0 ukeiky ds gLrk{kj gS] ftudks og igpkurh gS A ;g gLrk{kj mUgksus mldh ekStwnxh esa fd;s Fks A bl izdkj Jherh BkdqjnsbZ us vkjdhVSDV bathfu;j dh fjiksZV o uD''kk iw.kZr;k fl) fd;k gS A izkfFkZuh us ;g Hkh Li"V dgk gS fd fookfnr lEifRr fxjus ds i''pkr ,d fdjk;snkj Hkxokunkl vius futh edku 144] ?kkslh eksgYyk] ykydqrhZ esa pyk x;k gS A rFkk foi{kh us Loa; Hkh fookfnr edkfu;r ds if''peh mRrjh dksus ij viuk fjgk;''kh edku [kkyh Hkwfe ij cuk fy;k gS A vkSj og bl le; mlh edku esa jg jgk gS A izkfFkZuh us Mh0 ,u0 ukeiky vkjdhVSDV }kjk ekSds ds vuqlkj dh x;h fjiksZV dh izfrfyfi rFkk fookfnr edkfu;r ds iqufuZek.k esa [kpsZ dk C;kSjk o dSUVksesaV cksM+Z ckbZykt }kjk cuk;s x;s uD''ks dh QksVks dkih ''kiFk&i= 75 x ds layXud 3] 4 ,oa 2 gS A ewy fjiksZV o uD''kk dh Jh Mh0 ,u0 ukeiky ds vey ''kiFk&i= }kjk vU; fdjk;snkj Hkxoku ds fo:) fopkjk/khu gS vihy la[;k 55@93 U;k;ky; =;ksn''k vij ftyk tt] esjB BkdqjnsbZ cuke Hkxokunkl esa fnukad 22-9-1994 dh izLrqr dj j[kk gS A----

�9� foi{kh dh vksj ls tks ''kiFk&i= 26 x udh gqlSu] 27 x Jherh ''kQhdu] 28 x Jh ys[kjke] 70 x Jherh ''kjhQu] 79 x Jh udh gqlSu }kjk nkf[ky fd;s x;s gS] ls izkfFkZuh ds HkwfedFku ij dksbZ foijhr izHkko ugh iM+rk gSA foi{kh dh vksj ls ,slk dksbZ lk{; ugh fn;k x;k gS A ftlls ;g fofnr gks fd iz''uxr vkokl ttZj gkyr esa fxjkbZ fLFkr esa ugh gS A ,slk Hkh dksbZ lk{; ugh gSa A ftlls ;g fofnr gks fd edku dh ejEer djus ds i''pkr vPNh gkyr esa yk;k tk lds A izkfFkZuh us m0 iz0 vf/kfu;e 13@72 ds fu;e 17 dk iw.kZr;k vuqikyu fd;k gS A foi{kh dk ;g dFku ekU; ugh gS fd izkfFkZuh mDr edku dks fxjkdj u;k fuekZ.k djkus esa l{ke ugh gS A foi{kh dk ;g Hkh dFku ekU; ugh gS fd izkfFkZuh us fu;ekuqlkj uD''kk ikl ugh djk;k A mDr lEiw.kZ fLFkfr dks ns[krs gq, izkfFkZuh ds izkFkZuk&i= 4d esa dkQh cy gS A vkSj lO;; Lohd`r fd;s tkus ;ksX; gS A

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vr% izkFkZuk&i= 4d ds vUrZxr /kkjk 21�1��ch� m0iz0 vf/k0 13@72 lO;; Lohd`r djrs gq, foi{kh dks ;g vkns''k fn;k tkrk gS fd iz''uxr vkokl [kkyh djds mldk okLrfod dCtk izkfFkZuh dks 30 fnu esa ns nsos vkSj ;fn mDr vof/k esa foi{kh dCtk nsus es vleFkZ jgk rks izkfFkZuh dks ;g vf/kdkj gksxk fd og iz''uxr vkokl dk dCtk tfj;s U;k;ky; izkIr dj ysos A

fnukad 02-11-1995 g0 vLi"V fu;r izkf/kdkjh] esjB A

The appeal filed by the tenant was also dismissed by the appellate court disbelieving the case of the petitioner tenant. The Court also found that the landlord had applied the provision of Rule 17 is as under:

eS vihykFkhZ ds vf/koDrk ds rdZ ls lger gwWa A fu;e 17 ds vuqlkj dksbZ Hkh izkFkZuk&i= tc /kkjk 21�1��ch0� ds vUrZxr U;k;ky; ds le{k izLrqr fd;k tkrk gS rks mlesa izkFkhZ Hkw&Lokeh dks 4 rF; U;k;ky; ds le{k izLrqr djus vkSj mUgs fl) djus gksrs gS A izFke rF; ;g gS fd lEifRr okLro esa [kLrk vkSj ttZj gkyr esa vkSj mldk fxj tkuk vko;''d gS A bl rF; dks izR;FkhZ }kjk HkyhHkkafr fl) fd;k x;k gS A izR;FkhZ }kjk vius ''kiFk&i= esa Li"V :i ls dgk x;k gS fd fookfnr lEifRr 100 o"kZ ls vf/kd iqjkuh gS ftldk dksbZ [kaM+u vihykFkhZ }kjk ugh fd;k x;k lkFk gh izR;FkhZ }kjk izLrqr QksVksxzkQ~l ls Hkh fookfnr lEifRr dk [kLrk gkyr Li"V gksrh gS A lcls egRoiw.kZ rF; gS fd Loa; vihykFkhZ }kjk ;g Lohdkj fd;k x;k fd fookfnr lEifRr dk izFke ry cjlkr esa fxj pqdk gS A ftlesa izkfFkZuh jgk djrh Fkh vSkj izkfFkZuh us mldk eyck fookfnr lEifRr dh Nr ij gh NksM+ fn;k gS blds vfrfjDr Loa; vihykFkhZ }kjk ;g Lohdkj fd;k x;k fd fookfnr lEifRr dk dqN Hkkx fxj x;k gS ijUrq mlds fo"k; esa ;g dFku fd;k x;k fd izkfFkZuh o mlds ifr tkucw>dj foi{kh dks csn[ky djus ds fy;s fxjk fn;k gS A ijUrq bl rF; ls bruk vo''; Li"V gksrk gS fd fookfnr lEifRr dk ,d Hkkx fxj x;k gS A tgka rd og Loa; fxjk gS vFkok mls izkfFkZuh }kjk Loa; fxjk;k x;k gS] ;g rF; bl okn esa vko;''d ugh gS A ;fn vihykFkhZ pkgrk gS rks mlds fo:) /kkjk 29 vf/kfu;e 13 lu~ 1972 ds vUrZxr dk;Zokgh dj ldrk gS A bl izdkj izR;FkhZ }kjk leqfpr lk{; i=koyh ij miyC/k djk;h x;h gS ftlls ;gh fu"d"kZ fudyrk gS fd fookfnr lEifRr cgqr [kLrk vkSj ttZj gkyr esa gS vkSj mldk fxjk;k tkuk vko;''d gS A v/khuLFk U;k;ky; ds bl fu"d"kZ esa fdlh izdkj dh =qfV ugha ikrk gwWa A

The Court held that there is no illegality or infirmity in the order of the court below passed by the Judge Small Cause Court, Meerut and upheld the finding in P.A. Case No. 212/1990.

Counsel for the petitioner contended that the courts below have not considered the averment made in the affidavit of the petitioner. He also relied upon the decision rendered in Ram Kumar v. 3rd Add. District Judge, Faizabad and Ors. 1986 (2) ARC 275 and submitted that if the landlord purposely damages the building he is not entitled of release of tenement. He relied upon the averments made in the affidavit wherein it has been averred that the landlady herself damage the first floor building.

No other point has been argued.

It appears from the record that the courts below have found that the building was in dilapidated condition and that it was inspected in the presence of the petitioner by the Architect, who also submitted, which was filed by the court below. The courts below have recorded a finding of fact that the provision of Section 17 was complied with by the respondents landlady and also that the tenants'' have left house and are living in their own house that the landlady, who was earlier being on the first floor of the tenement had to leave that part of the house as it was in such a bad state that it would have fallen down any time,

As regards the decision relied upon by the petitioner concerned, the courts below held that in order to attract Section 21 (1) (b) the building must be beyond repairs so much so that it has to be demolished for reconstruction.

From the record it appears that the walls of the building had developed big cracks and they had left joints and was not repairable. It further appears that the building had so much in dilapidated condition that it was almost in ruins in the natural course with the passage of time so much so that the landlady, who had been living on the first floor had to leave it and shift herself in two room accommodation in the adjoining house.

In the case of Ram Kumar (supra), relied upon by the petitioner tenant there was a finding of the fact that in the first floor of the house was entered into by the landlord after it have been vacated. The landlord then moved an application u/s 21 (1) (b) of Act No. 13 of 1972 for possession of the disputed house on the grounds that it was in a dilapidated condition and it required demolition and reconstruction, which is not in the instant case as the courts below have also given a finding that the landlord had not damaged the first floor of the building.

For the reason stated above and the fact that the petitioner has built her own house and has shifted there as well as in view of concurrent findings by the courts below, there appears to be no illegality or infirmity in the orders impugned.

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