Heard Sri R.S. Mishra, learned counsel for the petitioner.
Present writ petition has been filed seeking quashing of the impugned orders and judgments dated 28.11.2007 and 12.2.2020 passed by the Additional Civil Judge (Junior Division)/Rent Control and Eviction Officer, Kanpur Nagar in Rent Case No. 5 of 2000, Shiv Kumar Verma and others Vs. Nem Chandra and others and the order and judgment passed by the Additional District Judge, Court No. 17, Kanpur Nagar in Rent Appeal No. 2 of 2007, Nem Chandra and others Vs. Shiv Kumar Verma and others filed as Annexures 3 and 5 to the writ petition. A further prayer in the nature of mandamus commanding the respondents not to evict the petitioners from the shop in question situated on the ground floor in Premises No. 43/106, Dhobi Mohal Kanpur Nagar in pursuance of the judgment and order dated 28.11.2007 and 12.2.2020 passed by the courts below has also been made.
The release application was filed by the landlord - respondent no. 1 under Section 21 (1) (A) of U.P. Act No. 13 of 1972 on the ground of need of Shailendra Verma son of the applicant no. 1. The trial court found bonafide need and comparative hardship in favour of the landlord and allowed the release application. The release application was contested by the tenant on the ground that the landlords already have one shop in their possession owned as House No. 43/106, Dhobi Mohal, Kanpur Nagar and the contention of the landlord that the tenants have other properties in their possession and in one shop they are carrying on business of goldsmith in the name of Pooja Jewellers was denied. However, the case of the petitioners was rejected by the trial court holding that the need was specifically shown to be need of applicant no. 1 and the applicant no. 2 has categorically stated that the other shop is in his possession and the applicant no. 1 has no concern with the same that the tenant has other shop and doing business of goldsmith. So far as the other property is concerned although it was found that no specific documentary evidence could be produced that one shop is available with the tenant, however, owner of the other shop being House No. 274M Block Yasoda Nagar, Kanpur Nagar wherein it was alleged that the tenant is carrying on his business in the shop in the name of Pooja Jewellers, Smt. Suman Gupta has filed her affidavit and his husband has also supported the affidavit. Therefore, it was found that the tenant is carrying on his business in other shop in the name of Pooja Jewellers and has no other vacant shop available. The appeal filed by the petitioners was dismissed.
This is a case of concurrent finding.
Challenging the same, submission of learned counsel for the petitioners is that the tenants of the entire shop have not been impleaded and the case suffers from mis-joinder of parties. The courts below have committed error in holding that after division the shop are found to be two different identities. It is further submitted that the findings that petitioners have other alternative accommodation and are doing business of goldsmith have been incorrectly recorded. The issue of comparative hardship was also decided against the petitioners. Attention was drawn to various observations made by the courts below.
I have considered the submissions and have perused the record.
The courts below have held that the need of Shailendra Verma son of Shiv Kumar Verma, applicant no. 1 was established and the other shop which was alleged to be in possession of the landlord was in fact in possession of the applicant no. 2 Shiv Pujan Verma who admitted this fact and stated that he himself is using that shop. The record reflects that the applicants have jointly filed the release application being co-owner of the shop. I also find that the courts below have recorded concurrent findings that the shop was divided and it was converted in two separate portion and in between there was a passage, therefore, the shop in question has a different identity. Although the courts below have recorded a finding that specific documentary evidence regarding the property in possession of the tenant have not been given, however, affidavit of Smt. Suman Gupta was filed in support of the case by the applicants that the tenant is carrying on business of goldsmith in the name of Pooja Jewellers and her husband has supported the affidavit. This clearly shows that the petitioners have other alternative accommodation and there is nothing on record to indicate that during all this period of litigation any effort was made made by the petitioners to search out any other alternative accommodation.
I do not find any good ground to interfere in the concurrent findings recorded by the courts below which are purely based on appreciation of facts as per evidence on record.
This writ petition is devoid of merit and is, accordingly, dismissed.
Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenant-petitioners shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.8.2021;
(2) The tenant-petitioners shall file the undertaking before the Court below to the said effect within two weeks;
(3) The tenant-petitioners shall pay damages @ Rs. 2000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.8.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(4) In the undertaking the tenant-petitioners shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(5) Subject to filing of the said undertaking, the tenant-petitioners shall not be evicted from the premises in question till the aforesaid period;
(6) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(7) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
There shall be no order as to costs.
Order Date :- 22.2.2021 p.s