Heard learned counsel for both the parties.
This is tenant's writ petition arising out of proceedings for eviction/release under Section 21 of U.P. Urban Building Regulation of Letting Rent and Eviction Act 1972 (U.P. Act No.13 of 1972) initiated by landlord respondent on the ground of bonafide need in the form of P.A. Case No.1 of 2007. Property in dispute is a shop. Prescribed Authority/Judicial Magistrate, Jalaun at Orai allowed the release application on 18.2.2010. Through the said order landlord-respondent was also directed to pay two years rent to the tenant-petitioner. Against the said order petitioner filed Rent Appeal No.1 of 2010 which was dismissed on 2.11.2010 by 3rd Additional District Judge, Jalaun at Orai hence this writ petition.
The need set up in the release application was for settling Nafees son of the landlord in business. Petitioner contended that he was tenant for 40 years and was doing business of selling vegetables from the shop in dispute. Rate of rent is Rs.400/- per month. It was stated in the release application that Nafees, landlord's son was not doing anything and sitting idle and he wanted to do the business of general merchandise from the shop in dispute.
The tenant contended that adjoining shop also belonged to the landlord and that Nafees for whose need application was filed was running a hotel known by the name of Lucky hotel in partnership with some one and that landlord was doing business from a shop which he had taken on rent from a mosque. Landlord denied that he was doing business from a tenanted shop belonging to the mosque. The Secretary of the mosque filed affidavit that landlord respondent was not tenant in any shop belonging to the mosque. Raeesudeen also filed affidavit stating therein that he was sole owner of Lucky Hotel and Nafees son of the landlord was not his partner in the said business.
In respect of comparative hardship Prescribed Authority held that the four sons of the tenant were carrying on their separate business and his daughter in laws were earning money from stitching the clothes and embroidery. Courts below held that these allegations were not specifically denied. In any case the tenant-petitioner did not show that he made any effort to search alternative accommodation.
As far as findings of bonafide need are concerned, I do not find any error therein. Firstly petitioner failed to prove that landlord was carrying on business from anywhere. Secondly even if landlord was doing business he was fully entitled to release of the shop in dispute for settling his son in independent separate business vide Sushila vs. A.D.J. A.I.R. 2003 S.C. 780.
The main point argued by learned counsel for the petitioner is that the lower appellate court has not said anything regarding comparative hardship. In para-4 of the judgment by the lower appellate court it has been mentioned that the Prescribed Authority framed two issues regarding bonafide need and comparative hardship and decided both the issues in favour of the petitioner. Even copy of the grounds of appeal has not been annexed alongwith writ petition. Learned counsel for the petitioner has cited an authority of this court reported in Smt. Kesar Bai vs. Addl. District Judge 1985 (1) A.R.C. 360. In the said case Prescribed Authority had rejected the application (probably holding both the points of bonafide need and comparative hardship against the landlord). However in appeal lower appellate court allowed the release application but while allowing the appeal and thereby the release application lower appellate court did not compare the hardship. Accordingly the High Court affirmed the findings of bonafide need but remanded the matter after setting aside the order of the lower appellate court to decide the question of comparative hardship only. The other authority cited is of Surendra Kumar Sharma vs. XIII Additional District Judge, Kanpur and others 1986 A.R.C. 204. In the said case lower appellate court had held that tenant had made some admission regarding family settlement among the landlord and his family members. The High Court held that there was no such admission. Accordingly, impugned order was set aside and matter was remanded.
As far as the authority of Smt. Kesar Bai is concerned it is not applicable to the facts of the present case. In the judgment of Smt. Kesar Bai (Supra) appellate court for the first time allowed the release application hence it was mandatory for it to decide the question of comparative hardship. In the instant case finding of comparative hardship had been recorded by the Prescribed Authority. It is not clear as to whether the said findings were specifically challenged before lower appellate court or not.
Moreover on the principle of Section 103 C.P.C. defining the powers of the High Court in Second appeal, even in writ petition High Court may if the evidence on record is sufficient determine any issue necessary for the disposal of the writ petition which has not been determined by the lower appellate court or even by both the courts below. Supreme court in R.E.V. Gounder v. V.V.P. Temple, 2004 ACJ 304 (S.C.); 2004 SCFBRC 66: 2004 (1) ARC 137 and R.C. Kesarvani v. Dwarika Prasad, 2002 (2) ARC 298, has held that when the matter is pending for long remand must be avoided. Supreme Court in its authority reported in Shail v. Manoj Kumar, 2004 ACJ 1213, placing reliance upon Surya Dev Rai v. R.C. Rai, 2003 (6) SCC 675, : 2003 (2) ARC 385 has held that in exercise of writ jurisdiction High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or tribunal should have made. All the four sons of the petitioner are doing independent business. Petitioner did not make any effort to search alternative accommodation. Accordingly in view of the following authorities of the Supreme Court question of comparative hardship had/has to be decided against the tenant petitioner.
B.C.Bhutada vs. G.R.Mundada A.I.R. 2003 S.C. 2713 and Shamshad Ahmad Vs. Tilok Raj Bajaj, AIR 2008 (Supp.) 526 .
The other argument of learned counsel for the petitioner is that tenant petitioner before the lower appellate court filed an application for inspection by Amin of the shop belonging to the mosque in which according to the tenant petitioner, landlord was tenant. The other property sought to be inspected was house no.46 of the landlord. Even if it is assumed that landlord is tenant in a shop belonging to the mosque it is meaningless in view of aforesaid authority of the Supreme Court (Sushila) holding that son is entitled to separate independent business. As far as house of the landlord is concerned appellate court held that in the written statement (para-14) it was mentioned that there was a double storied house 3/4th part of which had been let out however, it was not mentioned that in the said house any shop was there. Copy of the written statement is Annexure-2 to the writ petition. In para-14 it is mentioned that 3/4th part of the house was let out by Kaleem Ullah landlord for Rs.2,000/- per month which was sufficient to meet the need of the landlord.
Absolutely no fault can be found in the impugned order of the lower appellate court in rejecting the inspection application. Moreover no reason was given as to why the said application was not filed before the trial court/prescribed authority.
Accordingly, I do not find any merit in this writ petition hence it is dismissed.
Tenant petitioner is granted six months time to vacate on the following conditions.
1. For this period of six months, which has been granted to the tenant-petitioner to vacate, he is required to pay Rs. 6,000/-( at the rate of Rs.1,000/- per month) as rent/damages for use and occupation. This amount shall be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-respondent.
2. Within one month from today tenant will file an undertaking before the Prescribed Authority to the effect that on or before 09.4.2013 he will willingly vacate and handover possession of the property in dispute to the landlord-respondent.
3. If within one month undertaking is not filed or amount of Rs.6,000/- is not deposited then from today till actual eviction tenant shall be liable to pay Rs.2,000/- per month as rent/damages for use and occupation.
4. Similarly if after filing undertaking and depositing the aforesaid amount of Rs.6,000/- shop in dispute is not vacated by 09.4.2013 then since the said date till actual vacation tenant petitioner shall be liable to pay rent/damages of Rs.2,000/- per month.
It is needless to add that this direction of payment of Rs.2000/- per month is in addition to the right of the landlord to get the shop vacated through execution.
Order Date :- 9.10.2012 RS