Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 5664 of 2019 Petitioner :- Mohammad Naimuddin @ Munna Respondent :- Jagdish Prasad Banka And 2 Others Counsel for Petitioner :- Ramakant Tiwari
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Ramakant Tiwari, learned counsel for the defendant- tenant/petitioner.
Briefly stated facts of the present case are that respondent no.1 is the owner and landlord of the disputed shop in which petitioner is a tenant. The tenant-petitioner as well as plaintiff-landlord both are in the same line of trade i.e. trade of shoes. The plaintiff-landlord/respondent is a physically disabled person. He has only one shop in the disputed house from where he is running his business of retail and wholesale trade with extreme difficulty. Therefore, on the ground of boafide need of the disputed shop, the plaintiffs-respondents filed P.A. Case No.2 of 2006 (Jagdish Prasad Banka Vs. Mohammad Naimuddin @ Munna). Parties led their evidences. It was also brought on record by several evidences that the tenant-petitioner has several shops in the locality. During pendency of the P.A. Case, the tenant-petitioner purchased a commercial house by a registered sale deed dated 25.05.2009. When this fact was brought on record then the tenant-petitioner claimed that the said house has been jointly purchased by him and his two brothers. Considering the facts and circumstances and evidences on record, the aforesaid P.A. Case No.02 of 2006 was decreed by the Judge Small Cause Court/Prescribed Authority, Gorakhpur, by judgment dated 18.04.2016, after recording findings of fact that the plaintiff-landlord is in bonafide need of the disputed shop and comparative hardship is in his favour. Against the aforesaid judgment, the tenant-petitioner filed Rent Appeal No.07 of 2016 (Mohammad Naimuddin @ Munna Vs. Jagdish Prasad Banka) which has been dismissed by the impugned judgment dated 16.03.2019, passed by the Additional District & Sessions Judge/Special Judge (Anti Corruption Act), Court No.3 , Gorakhpur. The appellate court also recorded findings of fact that the plaintiff-landlord is in bonafide need of the disputed shop and comparative hardship is in his favour.
Aggrieved with these two judgments, the tenant-petitioner has filed a petition under Article 227 of the Constitution of India.
Learned counsel for the tenant-petitioner submits as under:-
(i) The plaintiff-landlord has got vacated one shop from Ramkaran Jaiswal and, therefore, his need stood satisfied. Therefore, there was no occasion for the court below to record the finding of bonafide need of the plaintiff-landlord and to decree the P.A. Case. Reliance is placed on the judgment of this Court in J.P. Gupta and another Vs.Smt. Heera Gupta and others 2008(26) LCD 321 (Paragraphs 5 & 7) and Lokendra Kumar Soni Vs. District Judge, Jhansi and Others 2013(1)ARC 765 (paragraphs 12 & 13).
(ii) Despite insistence of the tenant-petitioner, local inspection by issue of Commission was not allowed by the court below and, therefore, the impugned judgment deserves to be set aside.
No other point has been argued before me by the learned counsel for the tenant-petitioner.
I have carefully considered the submissions of learned counsel for the defendant-tenant/petitioner.
Undisputedly, the defendant-tenant is running his business from several shops. During pendency of the P.A. Case, he acquired a commercial house by a registered sale deed dated 25.7.2009. The plaintiff-landlord was having a small shop. In the disputed house there were two more shops which were occupied by old tenants including the petitioner. The plaintiff-landlord filed the P.A. Case No.07 of 2006 against the tenant Ramkaran Jaiswal for release of the shop which was dismissed for non prosecution on 09.04.2008. However, he settled the matter out of court and the shop was vacated by Ramkaran Jaiswal. The other P.A. Case being P.A. Case No.02 of 2006 was filed by the plaintiff-landlord/respondent against the defendant-tenant/petitioner which has been decreed by the impugned judgment dated 18.04.2016, passed by the Prescribed Authority/Judge Small Cause Court, Gorakhpur. Both the courts below have recorded concurrent findings of fact based on consideration of relevant evidences on record that the plaintiff-landlord is a physically disabled person and is in bonafide need of the disputed shop. The courts below also found that the defendant- tenant/petitioner has several shops in the locality and has also purchased one shop from one Sri Satish Kumar Rastogi by registered sale deed dated 25.7.2009. Thus, during pendency of the P.A. Case the defendant-tenant/petitioner acquired an additional shop which is in his possession. On the other hand, the plaintiff-landlord has only house and he is in possession of the only shop from where he is running the business and a small shop has been got vacated by him from Ramkaran Jaiswal. On the ground of bonafide need, the plaintiff- landlord has filed almost on the same time two P.A. Cases being P.A. Case No.02 of 2006 for release of the shop in possession of the petitioner and the other P.A. Case No.07 of 2006 for release of the shop in possession of the one Ramkaran Jaiswal. For the detailed reason recorded in the impugned judgments both the court below found bonafide need of the plaintiff-landlord/respondent for the disputed shop. The findings so recorded do not suffer from any perversity nor any submission has been made before me that the findings with regard to bonafide need and comparative hardship suffers from any perversity. Therefore, the findings of the court below on the point of bonafide need of the plaintiff-landlord for the disputed shop and comparative hardship to be in his favour can not be interfered with in jurisdiction under Article 227 of the constitution of India.
Two judgments as aforenoted relied by learned counsel for the defendant-tenant/petitioner do not support the case of the petitioner on the facts of the present case. In the case of Lokendra Kumar Soni (supra), this court found that several shops became available to the plaintiff-landlord which were let out either to new tenants or other tenants or are lying vacant. On these facts this court came to the conclusion that need set up by the landlord was nothing but a surreptitious attempt to get the accommodation vacant on flimsy, imaginary and unsubstantial grounds. In the present case the plaintiff- landlord/respondent has neither got vacated several shops nor he had let out any shop to another person nor keeping it vacant. Therefore, the judgment in the case of Lokendra Kumar Soni (supra) has no application on the facts of the present case. The other judgment in the case of J.P. Gupta (supra) relied by learned counsel for the defendant- tenant/petitioner is also of no help to him. In that case, it has been held that where the order has been passed without consideration to the subsequent event then such order would be suffering from manifest error of law. In the present set of facts, both the courts below have considered the subsequent events, namely, purchase of commercial accommodation by the defendant-tenant/petitioner during pendency of the P.A. Case as well as shop under tenancy of one Ramkaran Jaiswal. Under the circumstances, aforesaid judgment in the case of J.P. Gupta (supra) has no application on the facts of the present case.
For all the reasons aforestated, I do not find any merit in the present petition. Consequently, the petition fails and is hereby dismissed.
Order Date :- 26.7.2019/vkg