Heard learned counsel for the parties and perused the record.
This writ petition has been filed challenging the order, rejecting the application of the petitioner for cross-examination of certain witnesses of the landlord who had filed affidavits in his support in the court below.
The brief facts of the case are that the petitioners are tenant of a shop situated in Sadar Bazar, Main Road, Firozabad on the rent of Rs.125/- per month. Release application under Section 21 (1) (a) of Act No. 13 of 1972 was filed by landlady Smt. Meera Rani Gupta for release of the shop in question on the ground of personal need. One of the ground for release of the shop in question was that the tenant is not running any business and the shop in question remains closed. The release application filed by the landlady was registered as P.A. Case No. 09 of 2007 in the court of Civil Judge (Junior Division), Firozabad. It was contested by the tenant by filing written statement inter alia that the shop in question is not closed and that the tenant is carrying on his business therein which is the only source of livelihood of his entire family.
The parties filed affidavits in support of their respective stands.
Thereafter, an application was moved on 4.2.2008 by the petitioner with the prayer that since there is discrepancy in the affidavits of witnesses produced on behalf of the landlady, they may be summoned for cross-examination. Objections were filed by the landlady to the aforesaid application and after hearing the parties. The court below vide its order dated 21.2.2008 rejected the application of the petitioner on the ground that the said application for cross-examination has no substance and appears to have been moved only with the purpose to delay the final decision in the case.
The order dated 21.2.2008 rejecting application for cross-examination was challenged by the petitioner in Writ Petition No. 12359 of 2008 (M/S Girdhari Lal & Company and another vs. Smt. Meera Rani Gupta) which too was dismissed on 4.3.2008. Thereafter, the prescribed authority by his order dated 10.4.2008 allowed the release application of the landlady granting two month's time to the petitioner-tenant for vacating the accommodation in dispute. The aforesaid order dated 10.4.2008 was also challenged by the petitioner-tenant in an appeal filed under Section 22 of U.P. Act No. 13 of 1972 before the District & Sessions Judge, Firozabad.
It is during pendency of the aforesaid appeal that petitioner filed an application on 19.4.2010 under Section 41 (c) of the Act, praying that in view of the newspaper published in "Amar Ujala" dated 10.12.2009 that Atul Gupta son of landlady is the owner of a big fishing tank on about 20 Bighas land, hence he may be permitted to cross-examine at least the landlady, Sri Virendra Gupta (husband of the landlandy) and Atul Gupta (son of the landlady). This application of the petitioner was also objected to by the landlady vide objections dated 6.9.2010. Ultimately, the District Judge upon hearing learned counsel for the parties, rejected the application of the petitioner-tenant vide his order dated 23.9.2010 for cross-examination of the aforesaid three witnesses. The validity and correctness of the order dated 23.9.2010 is now challenged by the petitioner in the present writ petition.
Learned counsel for the petitioner has argued that in view of the publication dated 10.12.2009, the contention of landlady that her son is not engaged in any business is incorrect. Hence, the court below have wrongly rejected the application of the petitioner for her cross-examination.
Per contra, learned counsel for the respondent has submitted that son of the petitioner is neither engaged in any business nor any publication has been made by him that he is running a fishing tank.
After hearing learned counsel for the parties, it is apparent that whether the son of the landlady is doing any business of fishing tank. Even assuming the allegations of the petitioner to be correct, it cannot be said that if a member of family for whom need of the shop in dispute is set up has taken employment or established any business will extinguish his need. It is but common knolwedge that there is huge pendency of cases and the courts are not able to decrease the pendency. A member for whom need is set up cannot be expected to make any efforts for his livelihood and wait for adjudication of need and comparative hardship to be decided by the court. The question before the Court below is as to whether the shop in dispute is required by landlady or not? It is not open to the tenant in view of the reasons above that since some other business is being run by the son of the landlady, therefore, his need is extinguished and he cannot establish his own business in the shop.
For all the reasons stated above, the Court is not inclined to go into the question of fact at the interlocutory stage as earlier also the court below has rejected the application of the petitioner and directed that his case will be considered at the time of hearing. The court below has already taken all the facts and circumstances of the arguments advanced by the parties before rejecting his application by a cogent order.
The writ petition is accordingly dismissed.
Dated: 19.10.2010 RCT/-