Heard Sri Abhay Raj Singh holding brief of Sri Ravi Singh, learned counsel for the petitioners, Sri Manish Kumar on behalf of respondent nos. 1 & 2 and Sri Manish Mathur on behalf of respondent no.3.
Controversy involved in the present case relates to the shop no. 6/11/269(Old No. 1139/1141) situated at Mohalla Haiderganj, City and District Faizabad (hereinafter referred as shop in question) purchased by the father of respondent no. 3/landlady by registered sale-deed in the name of his wife Smt. Sudama Devi, let out to Sri Ram Agarwal, father of the petitioners who was a statutory tenant at the rate of Rs. 16.25 per month.
After the death of her parents, Smt. Luxmi Kesharwani/respondent no. 3 became the landlady. On 01.04.1981, an application under Section 21(1)(a) of the U.P. Act no. XIII of 1972 was moved, accordingly a P.A. Case No. 15 of 1981 registered before respondent no. 2, allowed by order dated 07.03.1987.
Aggrieved by the same, the tenants filed an appeal (Appeal no. 5 of 1987), allowed on 20.03.1990. The said order was challenged by the landlady/respondent no. 3 by means of Writ Petition No. 5160 of 1990 (Smt. Luxmi Kesharwani Vs. IIIrd Additional Judge, Faizabad and another), dismissed for want of prosecution on 24.03.2005.
Again landlady/respondent no. 3 on the ground that she has no source of livelihood, moved an application under Section 21(1)(a) for the release of the shop in question on subsequent bonafide need. During the possess time, the landlord sons had become major and in order to establish their business and livelihood, the shop in question which is under the tenancy of the landlord-petitioners, the same was required, as such due to subsequent need, an application under Section 21(1)(a) of the Act has been moved by the landlord against the tenants in the year 1999 registered as PA Case no. 1 of 1999.
In the said release application it is stated that the shop in question was laying closed and tenant was not doing any business whereas the sons of the landlady are compelled to do business from the rented accommodation subsequently since 2003.
After exchanged the pleadings between the parties, the prescribed authority for adjudicating the dispute involved in the present case has framed four issues and issue no. 1 and 2 are in respect to the fact that after a decision in the PA case no. 15 of 1981 by the High Court, the subsequent application filed by the landlady is maintainable as per the provisions as provided under the Rent Control Act and Rules showing therein, allowed vide order dated 31.10.2008 and a finding of fact has been recorded by the prescribed authority that there is need of the respondent in the present matter and subsequent release application moved on behalf of landlady is maintainable as the earlier release application and subsequent release application filed on different cause of action.
It has been further held that earlier one was filed for the bonafide need of the husband of the landlady whereas the second one has been filed for the bonafide need of the sons, so Rule 18(2) of the Rules framed under the U.P. Act No. XIII of 1972 are not applicable from one year period is lapsed since the decision in the previous matter, shop in question is bonafidely needed by the landlady and her need is more genuine and bonafide in comparison to the need of the tenant-petitioners. The finding was also recorded as the son of landlady is doing business from rented shop and notice has already been served to vacate the said shop, moreover tenant has not made any effort to search the alternate accommodation since the date of moving release application.
Tenant-petitioner filed an appeal (Appeal no. 6/08), dismissed vide order dated 08.07.2010 passed by Additional District Judge, Court no.6, Faizabad, hence, the present writ petition has been filed challenging the orders dated 31.10.2008 and 08.07.2010 passed by Prescribed Authority/Civil Judge(J.D.), IIIrd, Faizabad and Additional District Judge, court no. 6, Faizabad respectively.
Sri Abhayraj Singh holding brief of Sri Ravi Singh, learned counsel for the tenant-petitioners only argue that once the landlady had moved an application for release under Section 21(1)(a) in the year, 1981, allowed thereafter appeal filed by the petitioners-tenants, allowed and landlady filed a writ petition before this Court, dismissed for want of prosecution on 24.03.2005, so keeping in view the said facts, afresh application moved by her under Section 21(1)(a) of the U. P. Act No. XIII of 1972 is not maintainable under law, keeping in view the said fact, orders passed by the courts below are per se illegal, contrary to law, liable to be set aside.
Sri Manish Mathur, learned counsel for the respondent no. 3, in rebuttal submits that the principles of res judicata will not apply in the present case in view of the provisions as provided under the provisions of Rule 18(2) of the U.P. Urban Buildings(Regulation of Letting, Rent and Eviction) Act, 1972. He further submits that two courts below had given concurrent finding of fact in respect to the bonafide need of the respondent no. 2, hence the present writ petition filed by the petitioners is liable to be dismissed.
I have heard learned counsel for the parties and gone through the record.
In order to decide the above said question, the relevant provision which are taken into consideration are as under :-
Section 21(1)(a) of the U.P. Act No. XIII of 1972 :-
21. Proceedings for release of building under occupation of tenant - (1) The Prescribed Authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely -
(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust ;
Rule 18 :-
(1)Where an application of a landlord against any tenant for permission to file a suit for eviction under section 3 of the old Act, on any g round mentioned in section 21(1) has been finally allowed or rejected on merits either before or after the commencement of the Act, whether by the District Magistrate or on revision by the Commissioner or the State Government or under clause (I) or clause(m) of section 43(2) by the District Judge, and the landlord instead of filing a suit for eviction makes an application under section 21 on the same grounds within a period of six months from such decision or from the commencement of the Act, whichever is later, the prescribed authority shall accept the findings in those proceedings as conclusive.
Provided that the period during which the operation of any permission as aforesaid is stayed by order of any Court or authority shall be excluded in computing the said period of six months.
(2)Where an application of a landlord against a tenant under Section 21 of the release of any building or any specified part thereof or any surplus land appurtenant to such building is rejected on merits and a fresh application on the same ground is made within a period of one year from that decision, the Prescribed Authority shall accept the findings in those proceedings as conclusive."
In the instant case, initially an application has been moved by the landlady-respondent no. 3 on 01.04.1981 under Section 21(1)(a) of the U.P. Act No. XIII of 1972, allowed, tenant-petitioners filed an appeal, allowed on 20.03.1990. Thereafter, a Writ Petition No. 5160 of 1990(Smt. Luxmi Kesharwani Vs. IIIrd Additional Judge, Faizabad and another) filed, dismissed for want of prosecution.
Again, different cause of action, on subsequent bonafide need, another application for release under Section 21(1)(a) of the Act moved, allowed vide order dated 31.10.2008. Appeal filed by the tenant-petitioners dismissed on 18.07.2010.
In view of the above said facts, the sole argument advanced by the learned counsel for the petitioners that once a release application moved by the respondent no. 3-landlady, the subsequent release application filed by her is barred by principles of res-judicata.
In my opinion, argument is not tenable because the principles of res-judicata apply only to the situations which are static and not to changing situation. The bonafide need of the landlady must be considered with reference to the time when a suit for eviction was filed and it cannot be assumed that once the question of necessity is decided against the plaintiff, it has to be assumed that he will not have a bonafide and genuine necessity even in future. (See:- Janki Prasad Vs. VI Additional District Judge, 1978 ARC, 137).
Needless to mention herein that in a case where no new facts have come into existence and there have been no intervening change or circumstances the second application may not be maintainable on the principles of res-judicata but where the landlord establishes a change of situation since the first application, the said case would require the court trying second application to re-investigate not only the question of bonafide requirement but also of the greater hardship and to find out the basis of intervening changed circumstances as to whether the landlord is entitled to a release to be made in his favour under Section 21 of the Act.
The test is whether the second proceeding involved a new cause of action or whether it is merely an attempt to reiterate the same facts and to get a judgment in his favour on the same old cause of action. Whether or not, the matter of res-judicata must depend solely upon where the issue to be decided by the court has already been litigated and decided between the parties. If the circumstances had changed, it could not be contended that the issue between the parties remains the same. It is quite clear that a court can, upon fresh evidence, alter and vary the judgment previously made, if cause of action of the subsequent proceedings is different that what it was in former, but of course if there is no evidence of any fresh circumstance, the second application may be barred by the principles of res-judicata. A trivial or insignificant change will not oust the applicability of the principles of res-judicata.
The question of greater hardship which is required to be decided under the proviso is also one, which can change with the lapse of time. Every sort of circumstances may arise to change the relevant facts on which the issue of greater hardship is required to be decided. In deciding the question of greater hardship the court must bear in mind that the change of circumstances may occur from day to day and a court will consider changed circumstances while deciding the second application for release by the landlord. Each case will have to be decided on its own facts for finding out as to whether the change is of a nature which has altered the position of the parties.
In the instant case, as stated hereinabove, both the release application has been moved on different cause of action and that too after expiry of nearly 19 years, accordingy, as per the discussion hereinabove, Rule 18 of the Rules does not apply to the facts of the present case.
Further, Rule 18(2) of the Rules says that where an application of landlord against the tenant under Section 21 of the Act for release of any building or any specific part thereof or any surplus land appurtenant to the said specific building is rejected and a fresh application on the same ground is made within a period of one year from that decision, the Prescribed Authority shall accept the findings in those proceedings as conclusive. But the facts and circumstances of the present case being entirely different, Rule-18 has no application.
In the case of Mohammad Jaman Khan Vs. District Judge, Jhansi [2002(48) ALR 364 while interpreting the Rule 18(2) this Court held as under :-
"The another decision relied upon by learned counsel for the respondent-landlord is Smt. Ram Kumari and others Vs. Additional District Judge and others wherein the earlier decision in the case of Dr. Sita Ram Gandhi was relied upon by the learned Single Judge of this Court. The learned Single Judge has held that ' the question of need and comparative hardship can be re-agitated in an application given more than six months after the dismissal of the earlier application under Section 21(1)(a) of the Act. However, if the earlier application and an alleged private partition of 1973 between the co-owners of the building had been found to be Sham, then the said finding should operate as res-judicata. Although Section 11 C.P.C. does not apply, in terms, to proceedings under U.P. Act XIII of 1972."
In the case of Dhanpat Kumar Gupta and others Vs. Special Additional District Judge, Dehradun and other ARC 1995(1) 217, this Court held as under :-
"The First contention on behalf of the petitioners is that the release of the shop in question in favour of the respondent was refused an earlier proceeding on similar ground, the present release application was not maintainable. A perusal of the judgment of the Appellate Authority in the earlier case, Annexure 14 and the copy of the present release application, Annexure I would go to show that the grounds in two applications are not the same. The present release application has been moved mainly on the ground of the shop in question having been sold Kamal Kishore to one Ramji Lal and the purchaser demanding possession over the shop in question from the respondent no. 3. Undisputedly, the eviction being passed and possession has been delivered in pursuance of the decree to the said Ramji Lal. Consequently, also the petitioner cannot take exception to the maintainability of the present release application."
In the case of Jagdish Prasad Vs. Ist Additional District Judge, Mathura and others, ARC 2000(1) 516, this Court held as under :-
"In the matter of need as well as hardship the time is very important factor. The changes occur each day and each month. It is on this principle Rule 18 was framed which provides that where an application of the landlord against the tenant for eviction filed under Section 21(1)(a) of the Act has been finally allowed or rejected on merits, if second application is filed within a period of six months, the Prescribed Authority shall accept the findings in those proceedings as conclusive. This Rule engraved the principle of res-judicata for a fixed period because after some period the changes may itself occur."
From the above said preposition of law, the picture which is emerge out that if a release application is dismissed under Section 21(1)(a) of the U.P. Act No. XIII of 1972, then the second release application on subsequent need can be moved after a period of one year and there is no legal impediment in moving the same as per the provisions as provided under Rule 18(2) of the Rules, hence the sole argument which is raised on behalf of the tenants-petitioners is misconceived and liable to be rejected.
Further, both the courts below has given concurrent findings of fact in respect to the bonafide need of the landlady and it is a well settled proposition of law that, this Court while exercising the power of judicial review under Article 226 of the Constitution of India cannot disturb the finding recorded by the courts below unless and until the same are perverse in nature. Learned counsel for the petitioners fails to point out any reason or ground on the basis of which it could be held that findings recorded by the courts below are perverse in nature and contrary to the fact of the case.
In the case of Deep Chandra Juneja Vs. Lajwanti Kathuria(Smt.)(dead) through LRS. (2008)8 SCC 497, the Hon'ble Apex Court held as under :-
"Both the courts below recorded concurrent findings of facts that the appellant tenant and his family members have got separate accommodation in Kanpur City and on the basis of the evidence on record, the requirement of the accommodation of the landlady is bona fide and genuine and the comparative hardship also is more pressing to the landlady in comparison to the appellant tenant. IN that view of the matter, the High Court in its jurisdiction under Article 226 of the Constitution has rightly dismissed the writ petition of the appellant tenant on the premises of the concurrent findings of facts.
In Gaya Prasad Vs. Pradeep Srivastava this Court held that the need of the landlord is to be seen on the date of application for release. In Prativa Devi Vs. T.V. Krishnan it was held that the landlord is the best judge of his requirement and the courts have no concern to dictate the landlord as to how and in what manner he should live. In Rishi Kumar Govil Vs. Maqsoodan this Court while dealing with the provisions of Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and Rule 16 of the U.P. Urban Buildings(Regulation of Letting, Rent and Eviction) Rules, 1972 held that the bona fide personal need of the landlord is a question of fact and should not be normally interfered with.
Having regard to the well reasoned concurrent findings and reasoning recorded by the prescribed authority, which are affirmed by the High Court in the writ petition, we are of the opinion that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us by the appellant tenant. In the result, for the abovestated reasons, we find no merit in this appeal and it is dismissed, accordingly."
Accordingly, I do not find any infirmity or illegality in the impugned orders which are under challenge in the present writ petition.
At this stage, learned counsel for the tenants-petitioners prays that some time may be allowed to vacate the premises.
Taking into consideration the aforesaid prayer, tenants-petitioners are granted time to vacate the premises by 31st July, 2011, provided :
(a) they give undertaking by 10th March, 2011.
(b) the petitioners pay the entire rent and damages due up to date by 10th of March, 2011.
(c) the petitioners pay regularly the damages by 1st week of every month.
(d) In case of failure of aforesaid conditions, the respondent no. 3/landlady shall be at liberty to execute the decree forthwith.
For the foregoing reasons, writ petition is dismissed with the observation made hereinabove.
No order as to costs.
Order Date :- 2.2.2011 krishna/*