Heard counsel for the parties and perused the record.
Release application was filed by the landlord-respondent and his brother under Section 21(1) (a) of U.P. Act No. 13 of 1972 for establishing computer and printing press business in the two door shop under the tenancy of the petitioners. The release application was contested by the tenants by filing objections. The Prescribed Authority/Chief Judicial Magistrate, Etawah allowed the release application of the landlord respondent vide order dated 30.10.2006 with a direction to the tenants to handover the vacant possession of the disputed shop to the landlord within a period of two months from the date of the order. Aggrieved by the order dated 30.10.2008, the tenants preferred P.A. Appeal No. 5 of 2006, Laxmi Mohan Agarwal and others versus Prakash Narain under Section 22 of the Act before the District Judge, Etawah. The appeal was admitted and was transferred by order dated 22.11.2006 to the Court of Additional District Judge, Etawah with a direction that the stay application will be considered on the next date. The interim order was granted by the appellate Court in favour of the petitioner on 15.4.2008 staying the execution proceedings.
It appears that an application has been moved by the tenants before the appellate authority as paper no. 42-C for amending the grounds of appeal for the reason that new and subsequent developments have come into existence during the pendency of the appeal as a commercial establishment just adjacent to the shop in dispute having approximately 4 times of the area of the shop in dispute which was previously under the tenancy of Bank of Baroda has come in possession of the landlord respondent. Another application paper no. 49-C was moved by the tenants for appointment of Advocate Commissioner before the appellate authority for inspection of the aforesaid premises vacated by Bank of Baroda. These two applications paper nos. 42-C and 49-C were considered by the appellate authority on 21.5.2009 and rejected on the ground that parties were not present to press the applications. On coming to know about the order dated 21.5.2009 the petitioners tenants moved an application paper no.56-C with an affidavit paper no.57-C for recall of the order dated 21.5.2009, which was also rejected vide order dated 30.7.2009 on the ground that there is no justification and ground under the law to recall the order dated 21.5.2009 fixing 11.8.2009 as the next date of hearing..
It is submitted by the learned counsel for the petitioners that along with application paper no. 58-C and the supporting affidavits three papers regarding evidence for vacating the shop by the Bank of Baroda were filed requesting the appellate authority to take the same on record.
According to the petitioners, the petitioners appellants again moved an application paper no. 67-C before the appellate authority stating therein that the Bank of Baroda has now finally handed over the possession of the premises under its tenancy to the respondents landlords and in this light the amendment application may again be considered. This application has also been rejected by the appellate authority fixing 27.8.2009 as the next of hearing.
The contention of learned counsel for the petitioners is that the appellate authority has rejected the said two applications by orders dated 21.5.2009 and 30.7.2009. On that date, neither the parties nor their counsels were present in the court due to condolence meeting of the lawyers, hence the order passed by the appellate authority rejecting the applications of the petitioners was behind the back of the counsel for the parties, is parse illegal having been passed in violation of principles of natural justice and is liable to be set aside.
Learned counsel for the petitioners has relied upon paragraph 7 of the counter affidavit filed by the landlord wherein it is stated thus:-
" 7.That in reply to the contents of para 7 of the writ petition it is stated that the petitioner had moved application 42-C for amendment in the grounds of appeal and additional written statement only to protect the hearing of appeal to a hazarous length. It is not disputed that Bank of Baroda had vacated the premises under its tenancy during the pendency of the appeal. What will be the effect of the vacation of the building of Bank of Baroda will be considered by the appellate Court at the time of hearing of the appeal. The appeal was filed on 14.11.2006. About 3 years have passed the appeal could not be heard due to litigative acrobates of the petitioners tenants."
He further submits that the authority in the order has already noted that the matter can be raised at the time of final hearing by the petitioners tenants but as there is no supporting documents taken on record by the court having rejected his application he can not raise it.
Sri M.M. D. Agarwal, learned counsel appearing for the respondent has submitted that the matter is an old one and the writ petition has been filed challenging an interlocutory order passed by the court below. He has stated that the landlord has to prove his bona fide need in respect of the shop in dispute and if during the pendency of the litigation some property has come into his possession it may not take away the bona fide need of the landlord as the need of the landlord of the premises in dispute is to be considered on the date of application.
In support of his aforesaid submission, Sri M.M.D. Agarwal, learned counsel for the respondent has placed reliance upon the judgment rendered in AIR 2001 Supreme Court-803, Gaya Prasad versus Pradeep Srivastava wherein the crucial date for deciding bona fides of the need is the date of application and subsequent developments occurred pedente lite can be taken into account only when need of the landlord is completely eclipsed by such subsequent events.
In rebuttal, Sri Pradeep Kumar, learned counsel appearing for the petitioners has submitted that since the premises adjacent to the shop in dispute has been vacated by the Bank of Baroda, hence the need of the respondent landlord is completely eclipsed as he has also opened a showroom in the said premises. In any way he has now shifted the business for which he was requiring the shop in dispute, the need of the landlord has extinguished, hence subsequent events as to whether any bonafide need of the landlord remains can be considered by the authority.
This Court is not inclined to enter into any factual aspect of the matter. Suffice it to say that the landlord in paragraph 7 of the counter affidavit has taken a stand that the effect of the vacation of the tenanted portion by the Bank of Baroda in which the landlord has opened a showroom of Liberty Company can be considered at the time of hearing of appeal. Hence, with the consent of learned counsel for the parties and without entering into any factual matrix it is directed that the appellate court shall consider the effect of the subsequent event having bearing on the bonafide need and comparative hardship of the landlord i.e. of vacation of the premises earlier under the tenancy of Bank of Baroda as agreed by the parties. In fact the order dated 21.5.2009 also speaks of this fact which can be considered at the time of hearing, the relevant portion of which reads thus:-
^^i=koyh izLrqr gqbZA i;kZIr bUrtkj fd;k x;k ysfdu dksbZ Hkh i{k mifLFkr ugha gSA eqdnek iqjkuk gSA i=koyh ds voyksdu ls Li"V gksrk gS fd izkFkZuk i= 42x dk fuLrkj.k gksuk gSA 42x la'kks/ku izkFkZuk i= gS tks bl vk/kkj ij fn;k x;k gS fd nkSjku vihy Hkw&Lokeh dh dksbZ lEifRr cSad vkQ cM+kSnk us [kkyh dj nh gS ftldk mUgsa dCtk izkIr gks pqdk gSa vr% ;g rF; eseksjsUMe vkQ vihy esa la'kksf/kr dj fn;k tk;A pwWafd izkFkZuk i= ij cy nsus ds fy, dksbZ mifLFkr ugh gS vkSj esjs fopkj ls eseksjsUMe vkQ vihy esa bl izdkj ds la'kks/ku djuk U;k;laxr ugha gSa bl rF; dks i{kx.k ds rdksaZ ds le; izlaKku esa fy;k tk ldrk gSA lEcfU/kr cSad ds eSustj vkfn dk bl lEcU/k esa i= nkf[ky djk;k tk ldrk gSA ysfdu ,slk dksbZ Hkh i= nkf[ky ugha djk;k x;k gSA bu leLr ifjfLFkfr;ksa ds vk/kkj ij izkFkZuk i= vLohdkj fd;k tkrk gSA izkFkZuk i= 49x esa vihykFkhZ dh rjQ ls mijksDr lEifRr dk fujh{k.k djkus ds fy, fdlh odhy dfe'uj dks fu;qfDr djus dh izkFkZuk dh x;hA esjs fopkj ls vihy ds bl Lrj ij odhy dfe'uj dh fu;qfDr djds lEifRr dk fujh{k.k djkuk vko';d ugha gSA izkFkZuk i= 49x vLohd`r fd;k tkrk gSA i=koyh okLrs cgl fn- 30-5-09 dks is'k gksA g0 v0 21-5-09 ¼Mh0,l0dfV;kj½ vij tuin U;k;k/kh'[email protected]'ks"k U;k;k/kh'k ¼,l-lh-,l-Vh- ,DV½** It has also come on record that the petitioners had subsequently filed letter of Bank of Baroda vacating the said premises and handing over its possession to the landlord.
Therefore, the writ petition is disposed of finally with a directin that in view of averments made in paragraph 7 of the counter affidavit of the landlord and in order dated 21.5.2009 the appellate court will consider the factum and effect of vacation of commercial building of the landlord adjacent to the shop in dispute as to whether the subsequent events would extinguish the bonafide need and comparative hardship of the landlord. No order as to costs.
Since it is an old matter, the appellate Court is directed to decide the appeal within a period of three months from the date of production of a certified copy of this order by either of the parties.
Dated 8.3.2011 CPP/-