RESERVED
Court No. - 30
Case :- WRIT - A No. - 15057 of 2018 Petitioner :- Atul Kumar And Another Respondent :- District Judge, Meerut And 6 Others Counsel for Petitioner :- Swetashwa Agarwal,Ashish Kumar Singh Counsel for Respondent :- Shodan Singh
Hon'ble Vivek Kumar Birla,J.
1. Heard Sri Ashish Kumar Singh, learned counsel for the petitioners and Sri Arvind Srivastava holding brief of Sri Shodan Singh, learned counsel for the respondents.
2. Present petition has been filed for setting aside the order dated 16.5.2018 passed by the District Judge, Meerut in Misc. Appeal No. 389 of 2016 (Atul Kumar and others vs. Rajeev Kumar and others) as well as order dated 22.10.2016 passed by Prescribed Authority / JSCC, Meerut in P.A. Case No. 49 of 2006.
3. The landlord-respondent filed an application under Section 21(1)(a) of the U.P. Act 13 of 1972 for release of half of the portion of the shop bearing no. 44, Dal Mandi, Sadar, Meerut Cantt., Meerut, which was allowed by the learned trial court.
4. Two issues were framed by the learned trial court. One, regarding bonafide need of the applicant and second, regarding comparative hardship. Both the issues were decided in favour of the landlord-respondent and the release application was allowed. A miscellaneous appeal was filed by the tenant-petitioner, which too was dismissed. Both the judgments and orders are under challenge by means of the present petition.
5. The lower appellate court has divided the facts in two parts. One, the fact admitted between the parties and second, the facts disputed between the parties. For convenience the facts admitted between the parties are quoted as under:-
"3. Following are the facts admitted between the parties:-
(1) There exists in between the parties a land-lord and tenant relationship.
(2) The opposite parties are the tenants in the shop at monthly rent of Rs. 6.25/-.
(3) That the shop in question is half portion of the shop bearing no. 44, situate in Dal Mandi in Sadar, Meerut Cantt. The other half portion of the shop Shri (late) Lala Ram Nath, father of the applicant an owner of the building the shop is part of, had got released in his favour from Shri (late) Krishan, husband of opposite party no.02 and father of other opposite-parties, in proceeding instituted on his application under Section 21(1)(a) of the Act, but which he after some time let out to Satish Chandra and Vijay Kumar and presently they are tenant therein at a monthly rent of Rs. 600/-.
(4) That Shri (late) Lala Ram Nath had filed in his lifetime, an application under Section 21(1)(a) of the Act, giving rise to prescribed authority case no. 30 of 1996, seeking release of the portion under tenancy of Satish Chandra and Vijay Kumar, and his this application the prescribed authority has granted."
6. The facts disputed between the parties are also quoted as under:-
"4. The facts disputed in between the parties are-
(1) Whether the applicant is unemployed and is not engaged in any independent business?
(2) Whether the applicant occupies or has under his control any other shop or the premises where he can start his desired business?
(3) Whether the opposite parties are not doing any business in the shop in question and in-fact they are actively doing their business else where?
(4) Whether the opposite parties has made any sincere and genuine efforts for searching out alternative accommodation/shop for their business?"
7. The admitted facts are not in dispute before this Court also. On the disputed facts following finding was recorded by the lower appellate court, which is also quoted as under:-
"7. Thus, on the basis of above discussion there cannot be any escape from the conclusion:
(1) That the opposite parties are not doing any business in the shops-in-question and have been doing their business elsewhere.
(2) That the opposite parties had filed to bring on record any convincing or plausible evidence to show their sincere and genuine efforts to search out alternative accommodation / shop.
8. The question of comparative hardship thus tilts in favour of the applicant and against the opposite parties."
8. While dealing with the disputed facts the lower appellate court after looking into the various documents and the affidavits exchanged between the parties that the trial court has infact not given the detailed findings and therefore, the lower appellate court had looked into the entire evidence and the affidavits as well as documentary evidence exchanged between the parties at great length.
9. Challenging the judgments impugned herein submission of learned counsel for the petitioners is that the Prescribed Authority has committed a gross mistake in not considering the various documents and affidavits placed on record and has passed the judgment in a casual manner; both the orders are illegal and perverse and had been passed without considering the material on record; there is no reference in the entire judgment by both the courts below in respect of shop no. 42 available to the landlord- respondent, wherein he is carrying on his business although the same was earlier mentioned as shop no. 45 but was clarified by filing subsequent affidavits and since the availability of shop no. 42 could not be disputed by the landlord-respondent the judgments are incorrect; the landlord-respondent have ample property in Meerut apart from western portion of the shop in dispute being shop no. 44 he also has shop no. 44, which could not be disputed; the fact that the shop no. 523 is in possession of Sanjay Kumar brother of the petitioner has not been considered in right perspective; the courts below have relied upon the Will dated 12.10.2003 executed by late Lala Ram Nath in favour of the applicant only of one shop, whereas on the other hand other shops/properties have been taken as belonging to the joint family and therefore, the view taken is contrary to the evidence on record; the courts below have incorrectly rejected the amendment application and the application to appoint Amin Commissioner for spot inspection, which has materially affected the judgment; the landlord-respondent is in possession of one shop no. 42 plus half portion of shop no. 44 (the shop in question) and thus, have no bonafide need; and comparative hardship has also been incorrectly denied as shop no. 523 is in possession of his brother and is not in possession of tenant-petitioner herein. Submission, therefore, is that in such view of the matter the impugned orders are liable to be set aside.
10. Per contra, learned counsel for the respondent has submitted that there is no dispute about the fact that half of the portion was released in favour of the landlord-respondent but it is not in dispute that the size of the half of the shop released in favour of the landlord-respondent only 6.6 ft. X 16 ft., which is in the shape of gallery and is not sufficient to carry on business, for which half of this shop being shop no. 42, which is in possession of the tenant-petitioner, is being sought to be released. He further pointed out that the application for amendment was rejected by the trial court, which was never independently challenged. It was further submitted that the application for spot inspection was also never challenged independently, however, it was pointed out that the rejection of the applications was specifically dealt with by the lower appellate court and the lower appellate court has rightly upheld the rejection of the application. He further submitted that the judgment of bonafide need and comparative hardship have been decided by concurrent findings of facts and thus, warrants no interference by this Court. It was submitted that it is not in disputed that the shop no. 523 is admittedly in possession of the tenant-petitioner alongwith his brother, wherein both of them are carrying on business and this fact has been proved by cogent documentary evidence on record. Submission, therefore, is that the petition is devoid of merits and is liable to be dismissed.
11. I have considered the rival submissions and have perused the record.
12. No doubt the trial court judgment though have drawn correct conclusion but findings written are not specific in nature, however, I find that the lower appellate court has gone into each and every documentary evidence on record as well as affidavits filed by the parties in the statement, therefore, the lower appellate court being the final court on findings of facts, has taken care of all the facts and no prejudice is caused to the petitioners by the judgment of the Prescribed Authority not being categorical in nature. The findings of fact recorded by both the courts below are concurrent in nature. It is not in dispute that the present shop is half portion of the shop no. 44. It has come on record that in the half of the portion released earlier the landlord-respondent tried to set up his business but when he failed in the same after four years he let out the same again to Satish Chandra and Vijay Kumar. However, during his lifetime he again filed an application under Section 21(1)(a) of the Act seeking release of the portion, which was allowed and the court below was informed that ultimately the landlords have been granted possession over the same after dismissal of the appeal. However, the lower appellate court has also noticed the fact that half of the shop is only 6.8 ft. X 16 ft. and it is more like a gallery and it is only the landlord-respondent to judge his own requirement for the opening of business he wants to set up. In my opinion, on this issue the lower appellate court has rightly noticed the same. Insofar as the contention of learned counsel for the petitioner regarding shop no. 42 is concerned, assertion was made by him regarding shop no. 45 and it was found that the landlord-respondent is not owner of the shop no. 45. Subsequently, the landlord-respondent sought to change his stand and claimed that infact it was shop no. 42 on which the landlord- respondent need his business. This argument was rejected on the ground that the assertion was made by filing rejoinder affidavit and there was no evidence filed on record by the defendant that the landlords-respondents have any other shop elsewhere in his ownership or within his power except the half portion, which has been got vacated by Satish Chandra and Vijay Kumar after a long drawn battle very recently. Specific assertion was made by the landlord-respondent that he is to set up his own business and at present as per wish of his late father Lala Ram Nath he is assisting his brother Ashwani Kumar in his business. The law is well settled on this issue that every member of the family has right to set up his own business. The aforesaid finding could not be disputed by the tenant-petitioner by producing any documentary evidence. While discussing the properties as alleged by the tenant-petitioner, in possession of the landlord-respondent, finding of fact has been returned by both the courts below that none of the shops is available to the landlord-respondent except the half portion of the shop no. 44 as already discussed. It has also come on record that by Will dated 12.10.2003 late Lala Ram Nath has divided the entire building and land to his three sons and in terms of commercial spaces he has give shop no. 44 to the landlord-respondent and rest of the two shops have been given to other two sons. In such factual background I do not find any legal infirmity and concurrent finding has been recorded by both the courts below regarding bonafide need of the landlord-respondent.
13. Insofar as comparative hardship is concerned, it is an admitted fact that as noticed by both the courts below that shop no. 523 is in possession of the tenant-petitioner and has admitted that he is doing business in shop no. 523. Further, it has been stated that Sanjay Kumar is doing business independently to his brothers. The documentary evidence has come on record in the shape of statement of Vishnu Prakash Sharma, who is owner of the aforesaid shop given in PA Case No. 59 of 2001 filed against Sanjay Kumar and others that the shop was let out to Atul Kumar and Sanjay Kumar both sons of Sri Krishan and they are doing business of bardana in this shop under the name of style 'Sanjay Bardana Store' and this statement of Sri Vishnu Prakash Sharma makes it crystal clear that Sanjay Kumar is not doing business in this shop exclusively. It has also come on record that the defendant Atul Kumar has also taken a lease godown and in shop no. 523 owned by Sri Vishnu Prakash Sharma, Sri Krishan father of Atul Kumar, Deepak and Sanjay Kumar were tenant. This fact could not be disputed by the tenant-petitioner herein. It is also come on record that Atul Kumar has also lease a godown measuring 200 sq. yds. in building no. 115 Chepal Street Meerut but this fact was concealed. Therefore, I find that the findings recorded on comparative hardship by both the courts below also do not suffer from any legal infirmity or jurisdictional error. All such factual aspect cannot be re-appreciated by this Court under Section 226 of the Constitution of India.
14. In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed.
15. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord- opposite party on or before 31.1.2019;
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order.
(4) The tenant-petitioner shall pay damages @ Rs. 1000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.1.2019 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant- petitioner shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
16. There shall be no order as to costs.
Order Date :- 27.7.2018 Lalit Shukla