Heard learned counsel for the parties and perused the record.
The petitioner claims that he is doing tailoring business in the shop in dispute for the last 24 years and has acquired goodwill in the area. The rent of the shop in dispute is Rs.125/- per month.
The case of the petitioner is that the respondent landlady demanded rent of the shop in dispute @ Rs. 1,000/- per month in the year 1996 which was refused by the petitioner and as a consequence the landlady stopped accepting rent from the petitioner. Thereafter, the rent was paid under Section 30(1) of U.P. Act No. 13 of 1972 in Case No. 20 of 1996 before the court below. An application under Section 21(1)(a) of U.P. Act No. 13 of 1972 was filed by the landlady Smt. Harwati Devi for release of the shop in dispute for establishing her son and grand son in business.
The petitioner contested the application by filing written statement denying the averments made therein. Affidavits were filed by the landlady of her own, her son, grand son and other two witnesses. In reply the petitioner filed his affidavit and the affidavits of his witnesses as well as supplementary counter affidavit denying the allegations made in the affidavits and the rejoinder affidavit of the landlady.
The Prescribed Authority allowed the application filed by the landlady vide his order dated 13.6.2008.
On the basis of the pleadings of the parties, the trial Court framed following issues.
^^1-D;k izkFkhZ;k fookfnr nqdku dh yS.MyksMZ gS rFkk foi{kh mlesa [email protected]& :i;s ekgokj dh nj ls fdjk;snkj Lo:i vkckn gS\ 2- D;k izkFkhZ;k dks fookfnr nqdku dh lnHkkoh vko';drk gS\ 3- rqyukRed dfBukbZ\ It appears that the case of the landlady before the trial court was that the tenant had sub-let the shop in dispute to one Raj Kumar @ Rs.500/- per month. The trial Court decided issue no.1 in favour of the respondent holding her to be the landlady who had let out the shop in dispute @ Rs. 125/- per month to the tenant petitioner.
Issue no.2 was decided by the trial Court holding that the son of the landlady Sri Ravindra Kumar and her grand son are not engaged in any business or profession and it is established from the legal position that the landlord/landlady is the best Judge of his need and that every members of the family of the landlord is entitled to augment the income of the family and establish himself independent business. It was also held by the trial Court that the need of the landlady was bonafide.
Issue no.3 was decided by the trial Court holding that in case the shop in dispute is not released in favour of the landlady she would suffer greater hardship than the tenant who has not made any efforts for an alternative accommodation and accordingly, decided the question of comparative hardship in favour of the landlady. By order dated 13.6.2008, the trial Court allowed the release application filed by the respondent landlady directing her to pay rent of two years to the tenant within a period of 15 days and further directed the tenant petitioner to handover vacant and peaceful possession of the disputed shop to the landlady. Otherwise, it was made open to the landlady thereafter to proceed in accordance with law for execution of the judgment.
Aggrieved by the aforesaid judgment and order dated 13.6.2008 of the trial Court, the petitioner preferred Rent Control Appeal No. 12 of 2008, Bhola Tailor Master versus Smt. Harwati Devi and others before the appellate Court.
It appears that in the mean time Smt. Harwati Devi expired and in her place respondent nos. 1/1 to 1/4 were substituted as her legal heirs and representatives.
The appellate Court vide its judgment and order dated 13.7.2010 also held that the need of the landlady was bonafide and also confirmed the findings of the trial Court in so far as comparative hardship in favour of the landlady was concerned.
The petitioner has challenged the order and judgment dated 13.6.2008 passed by the Civil Judge (Junior Division)/Prescribed Authority in Case No. 3 of 2007 as well as the judgment and order dated 13.7.2010 passed by the Additional District Judge,Khurja, District Bulandshahar in Rent Control Appeal No. 12 of 2008.
The validity and correctness of the concurrent findings of facts recorded by both the courts below have been challenged on the ground that the findings of the Prescribed Authority in favour of the landlady for release of the shop in dispute on the bonafide need of her son and grand son are erroneous and perverse. It is stated that they are already engaged in their respective business from which substantial amount of income is earned by them to meet their need, hence the need for the shop in question under the tenancy of the petitioner for establishing her son and grand son in business is neither bonafide for the reason that no evidence was brought on record before the trial court to establish the need of the landlady as bonafide and genuine.
As regards the order and judgment of the lower appellate court is concerned, the contention of learned counsel for the petitioner is that the findings recorded by both the courts below in respect of bonafide need and comparative hardship in favour of landlady is perverse and the need of the landlady for the shop in dispute is only ornamental.
It is urged that the courts below have completely ignored the aspect of the matter that the son of the landlady had retired 3 years before filing of the application and had sufficient means for his livelihood from his monthly pension as well as from tutoring the students/children of class I to VIII. He therefore, has no need to venture into any business from the shop in question at this advanced age. As regards the need of the grandson is concerned, it is stated that he has already married his daughter and is employed in some private Factory in Ahmedabad and therefore, there is no occasion for him to return to Khurja in State of U. P for establishing business in the shop in dispute.
It is lastly submitted by the learned counsel for the petitioner that the need of the petitioner is more pressing and genuine and he would suffer greater hardship than the landlady in case he is evicted from the shop in dispute which is his only source of livelihood. It is also stated that there is no evidence on record to the effect that son and grand son of the landlady do not want to continue in their present engagement/employment or want to establish their business from the shop in dispute.
Admittedly, Smt. Harwati Devi was the landlady of the shop in question who expired during pendency of the litigation. Her four sons, respondent nos. 1/1 to 1/4, Ravindra Kumar, Navendra Kumar alias Chotey, Rupendra Kumar and Alok alias Raju have been substituted as her legal heirs and representatives in her place. Sri Ravindra Kumar for whom the shop in question was needed was working in NREC College, Khurja as Librarian and has since retired. The case of the petitioner that Sri Ravindra Kumar is doing tuition to the children from class I to class VIII by which he is earning handsome money is vague. The courts below have found that the petitioner has failed to prove that Sri Ravindra Kumar is earning money from tuition for livelihood as the petitioner has not specifically pleaded or has adduced any evidence as to at which he took tuition and who were his students. The lower appellate Court also found that the petitioner has also failed to prove that Sri Ankur, the grandson of the landlady was working in a factory at Ahmedabad; that the version of the petitioner is vague as he has not disclosed as to in which factory Sri Ankur was employed and what was his salary etc. The courts below have rightly considered the fact that the members of the family of the landlady are entitled to augment their income and establish themselves in the business. It may be noted here that the grand son of the landlady was not doing any work even after marriage for a long time would not dis-entitle him to seek relief for the release of the shop. The contention of learned counsel for the petitioner that the landlady has not filed any application earlier and as such she has no need for the shop has no force for the reason that the family of Sri Ravindra Kumar has gradually increased and his son has also been married for the last 20 years and is dependent upon his father and grand mother. Need of the landlady is therefore more pressing and genuine when her son has retired from service and would not be able to support his family and the family of his son from the amount of pension which he is getting. The need of the son and grand son of the landlady for doing business in the shop in dispute appears to be genuine and bonafide.
As regards the question of comparative hardship is concerned, the court has found that the tenant has pleaded that he has earned sufficient goodwill from his tailoring shop which is only source of income of his family. The court has also found that the petitioner is not doing any tailoring business but has sub-let the shop in dispute to one Raj Kumar who is running the shop. Therefore, on this ground the question of comparative hardship has rightly been decided by the court below in favour of the landlady to the effect that the petitioner would not suffer comparative hardship than the landlady and he can shift his shop to some other place. The court below has also noted that the petitioner has not made any efforts to search out any alternative shop to shift his business. As regards goodwill is concerned, it is personal to the shopkeeper and not of the shop. Considering that both the courts below have recorded concurrent findings of facts on the question of comparative hardship and bonafide need in favour of the landlady. The petitioner has failed to prove his case that he is running the shop in dispute as according to the findings of the Court below, the petitioner had sub-let the shop in dispute to one Raj Kumar in 1996 @ Rs. 500/- per month.
Considering all the facts and circumstances of the case in totality, there appears to be no perversity or illegality in the orders of the courts below.
For the reasons stated above, the writ petition is dismissed. No order as to costs. The petitioner shall handover vacant and peaceful possession of the shop in dispute to the landlady within a period of one month from today.
Dated 11.10.2010 CPP/-