Smt. Sugna Devi @ Sukhana Devi vs Mukhtar Ahmad

Manoj Misra, J.—Heard learned counsel for the petitioners and perused the record.

The present petition has been filed challenging the order of release dated 17.11.2015 passed by the Prescribed Authority/A.C.M.M., Court No.5, Kanpur Nagar in Rent Case No.37 of 2013 as also the order dated 24.12.2016 passed by the Additional District Judge, Court No.2, Kanpur Nagar in Rent Appeal No. 02 of 2016 by which the release order was affirmed in appeal.

A perusal of the record would go to show that the landlord-respondents filed a release application, under Section 21(1)(a) of the U.P. Act No. 13 of 1972 for release of an accommodation comprising one room and a courtyard situated on the first floor of House No. 102/203. The need of the family to have an additional space was set up by claiming that the family of the landlord constituted of the landlord himself, his married son and a daughter-in-law; two unmarried marriageable age sons; and one unmarried daughter. Additional need for having a Guest Room for married daughter and guest, etc. was also shown. The release application was, inter alia, primarily contested on the following grounds: (a) that the landlord being a Vendee-landlord had not given six months notice as required by the proviso to section 21(1)(a) of the U.P. Act No. 13 of 1972; (b) that the present release application was a second release application and not maintainable because it was filed during pendency of an appeal preferred against rejection of the previous release application; and (c) that the landlord had obtained release order of another premises by filing Rent Case No. 41 of 2002 which, after release, was let out to a third party, therefore, there was no need for the premises in question.

The courts below, after examining the material on record, found that in so far as the requirement of six months notice is concerned, that notice was not required because the release application was filed after three years from the date of purchase. The property in question was purchased in the year 1984 whereas the release application was filed in the year 2013 and even otherwise earlier also an application for release was filed against the tenant which amounted to notice and, therefore, the subsequent release application would, in any case, not be barred. The said view taken by the courts below is in accordance with law and finds support from the law laid down by this Court in Anwar Hasan Khan v. District Judge, Saharanpur and others : 2000 (38) ALR 682 which has been upheld by the Apex Court in Anwar Hasan Khan v. Mohd. Safi and others : 2001 (45) ALR 568 and has been consistently followed. Accordingly, the courts below rightly held that six months notice was not required in the facts of the case.

In respect of the second ground taken, the court below found that the second release application was based on changed circumstances inasmuch as sons of the landlord had all become of marriageable age and, therefore, their need was also required to be considered and in any case the order passed by the trial court was much before one year of presentation of the second release application. More over, the appeal filed against the order passed in the earlier release proceeding was not decided on merits but was dismissed for non-prosecution and, therefore, the second release application was not barred.

In respect of the third ground taken to resist the release application, the court below has come to the conclusion that from the affidavit it was established on record that the accommodation of which release was ordered in Rent Case No. 41 of 2002 was in possession of another son of the landlord and, therefore, it was not correct that it was let out. Apart from the above consideration, the court below further found that the need of the landlord was pressing inasmuch as to satisfy the residential need, the landlord had taken additional premises from one Jannu, who was pressing the landlord to vacate the premises and therefore the need set up by the landlord was genuine and pressing. On question of comparative hardship, the court below came to the conclusion that twice the landlord had proceeded against tenant for release of the accommodation and litigation was spread over a period of fourteen years yet, in all these years, the tenant had made no effort to search for an alternative accommodation and, therefore, under the circumstances, he was not entitled to seek protection on the ground of hardship.

Learned counsel for the petitioners tried to assail the orders passed by the court below by taking the same pleas which have all been dealt with by the court below and decided against him.

I do not find any legal error in the orders passed by the courts below which are well considered and in conformity with legal principles, therefore, no ground to interfere with the impugned orders is made out.

At this stage, the learned counsel for the petitioners prayed for sometime to vacate the premises.

In view of the above, this petition is disposed of by observing that no good ground is made out to interfere with orders impugned. However, considering the facts of this case, it is provided that pursuant to the orders impugned, the petitioners shall not be evicted from the accommodation in dispute up to 30.06.2017 provided the petitioners submit an undertaking in the Court of Prescribed Authority/A.C.M.M., Court No.5, Kanpur Nagar that they shall handover vacant and peaceful possession of the premises in dispute to the landlord-respondent by 01st July, 2017. The said undertaking must be furnished by 31.03.2017. In case, the undertaking is not submitted by 31.03.2017, the release order shall become executable forthwith. In case, the undertaking is submitted by 31.03.2017 and the petitioners fail to vacate the premises by 01st July, 2017 then it shall not only be open to the landlord-respondent to execute the release order passed against the petitioners but it shall also be open to the landlord respondents to initiate contempt proceedings against the petitioners for violation of the undertaking.