Court No. - 26
Case :- WRIT - A No. - 10430 of 2018 Petitioner :- Ajai Kumar Srivastava And 3 Others Respondent :- Ram Jaiswal Counsel for Petitioner :- Pramod Kumar Srivastava Counsel for Respondent :- Harsh Vikram,Dharm Vir Jaiswal
Hon'ble Mrs. Sangeeta Chandra,J.
(ORAL) Mr Pramod Jain, learned counsel has filed his vakalatnama on behalf of the respondent, which is taken on record.
This writ petition has been filed by the petitioners- tenants challenging the order dated 17.01.2018 passed by the learned Additional Civil Judge (Senior Division), Court No. 6/Prescribed Authority, Allahabad in P.A. Case No. 37 of 1990 (Shri Ram Jaiswal vs Ajay Kumar Srivastava and others) and the order dated 29.03.2018 passed by the learned Additional District Judge, Court No. 7, Allahabad in Rent Control Appeal No. 2 of 2018.
It is the case of the petitioners as submitted by their counsel that Shri Buddhu Lal Jaiswal, the father of respondent No. 1 was the owner of several properties situated in Old Katra, Allahabad, and after his death, his property devolved upon his widow Smt. Saraswati Devi and three sons and two daughters in equal measure. All of them became the owners of the property i.e. four houses situated in Old Katra, Allahabad. In October, 1977 family partition took place and House No 322, Old Katra, Allahabad fell into the share of Shiv Murat Jaiswal and House No. 1143/28, Old Katra, Allahabad fell into the share of Shri Ram Jaiswal, respondent No. 1 herein, whereas other properties also were so divided between the co-owners, but this dispute relates only to House No. 322 Old Katra, Allahabad and therefore, no details are required to unnecessarily burden this judgment.
Initially, the shop situated in House No. 322, Old Katra, Allahabad was in the tenancy of grand- father of the petitioners Shri Pyare Lal Srivastava, who ran his business of denatured spirit. After death of Pyare Lal Srivastava, the tenancy of the disputed shop devolved upon Radhey Krishna Srivastava and Shyam Krishna Srivastava. One of them continued with the business of denatured spirit, while the other opened a Cycle Store in one half of the same shop. Subsequent to the oral partition of 1977, Shiv Murat Jaiswal continued as landlord of father of the petitioners, Radhey Krishna Srivastava and continued to receive rent. Subsequently, another partition occurred between the brothers Shiv Murat Jaiswal, Ram Kishan Jaiswal and Shri Ram Jaiswal, sons of Buddhu Lal Jaiswal and Original Suit No. 56 of 1986 was filed for a declaration to the effect that House No. 1143/28, Old Katra, Allahabad shall now fall into the exclusive share of Ram Kishan Jaiswal. The suit was decreed ex-parte on 06.08.1986. Later on, an application under Order IX Rule 13 was filed and the order was recalled and a compromise thereafter entered into between the brothers, which resulted into passing of the compromise decree dated 04.11.1989, by which House No. 322, Old Katra, Allahabad fell into the share of Shri Ram Jaiswal and Shiv Murat Jaiswal took over House No. 1143/28, Old Katra, Allahabad.
It has been contended by the learned counsel for the petitioners-tenants that this decree was entirely collusive and the compromise was entered only with the motive of throwing out the tenant.
However, he admits that no challenge to the said decree was made before any Competent Court of Law by any of the parties.
Learned counsel for the petitioners submits that they being the tenants of Shiv Murat Jaiswal did not recognize Shri Ram Jaiswal as his landlord in pursuance of the said decree dated 04.11.1989, and therefore, Issue No. 1, which was framed by the learned Prescribed Authority in P.A. Case No.
27 of 1990 related to whether there was a relationship of landlord and tenant between respondent No. 1 Shri Ram Jaiswal and the petitioners herein. This issue was wrongly decided on the basis of admission, wrongly made by the counsel for the petitioners that he did not dispute the existence of the decree dated 04.11.1989, and also that he does not dispute that Shiv Murat Jaiswal had filed affidavit in favour of his brother Shri Ram Jaiswal saying that after the decree dated 04.11.1989 Shri Ram Jaiswal became the landlord of the premises in question.
Learned counsel for the petitioners has also submitted that with regard to Issue No. 2 relating to bona fide need of the landlord, the Prescribed Authority as well as the Appellate Authority has wrongly come to the conclusion that such need as set up by the landlord was genuine. The landlord had alternative accommodation in the same premises, where during the pendency of the suit, he set up independent business of his wife along with partnership of another lady. He could have opened his shop to carry on cloth business in the said alternative accommodation available to him after such accommodation was vacated by one Dakkhi Lal, the tenant thereof.
Learned counsel for the petitioners has also submitted that with regard to comparative hardship, the tenants had submitted before the learned courts below the difficulty faced by the tenants, whose grand-father was conducting business in the shop in question for the past more than 80 years. Thereafter, their father and now the petitioners themselves were conducting their business, and therefore, they would be greatly prejudiced, if they are now forced to move out of the premises in question. It has been submitted that the learned Prescribed Authority and the Appellate Authority both did not consider the comparative hardship of the tenants-petitioners only because no effort was made for 28 years since the application for release was filed to search alternative accommodation in the city of Allahabad.
Learned counsel for the respondent, on the other hand, has pointed out from the order of the Prescribed Authority, the admission made by the Advocate of the petitioners and has referred to Order III Rule 1 of the C.P.C., where a recognized pleader or Advocate is etitled to make all factual and legal submissions before the court concerned and it is not open for the litigant to resile from the same.
Learned counsel for the respondent has also pointed out that Order XXIII Rule 2 and Rule 3 of the C.P.C. and the remedy that was available to the tenants- petitioners in case there were aggrieved by the decree dated 04.11.1989 being allegedly obtained by the landlord-respondent through fraud or misrepresentation of fact. No application even under section 23 of the Provincial Small Causes Courts Act was filed disputing the ownership of the house in question before the learned courts below. Now a new case is being set up after concurrent finding of fact has been recorded by the two courts below.
With regard to bona fide need, learned counsel for the respondent has referred to several judgments of this Court as well as Supreme Court saying that it is not open for the tenant to dictate to the landlord as to what accommodation should be utilized for what purpose. He has referred to several judgment of Hon'ble Supreme Court, which have been also referred to in the order of the Prescribed Authority, where if no genuine effort is made by the tenant to search for alternative accommodation, on notice to vacate tenanted premises is given to the tenant, the plea of comparative hardship cannot be considered.
Learned counsel for the respondent has pointed out the observations made by the Appellate Court regarding the pendency of the Suit and the Appeal for 28 long years. The landlord was 50 years old when he filed the Release Application in 1990, and was 78 years of age when the appeal was being heard. The tenants-petitioners even raised a plea before the Appellate Court that during the pendency of the Appeal that the landlord had become old and infirm, and therefore, he could not now run any business of his own, and therefore, the shop in question should not be directed to be vacated. The Appellate Court has considered the pendency of the Release Application for 28 years, and has also considered the physical condition of the landlord-respondent, who appeared in person, without any help before the Appellate Court, and has come to the conclusion that tenants petitioners cannot now raise the plea of old age of the landlord-respondent to dispute bona fide need of the landlord.
I have heard the learned counsel for the petitioners and learned counsel for the respondent and having gone through the orders impugned, I do not find any legal or factual infirmity in them to show interference.
The writ petition is dismissed with a cost of Rs. 5000/-.
The petitioners-tenants shall vacate the premises in question forthwith and deliver the vacant possession thereof to the landlord. In case, they do not vacate the premises in question, then it would be open for the landlord-respondent to approach the Prescribed Authority for issuance of orders under the Rules for Police force to be made available to the landlord-respondent for vacation of the premises in question.
Order Date :- 24.4.2018 Sazia