1. Heard Sri Manish Goyal, learned Senior Counsel assisted by Sri Nikhil Mishra, learned counsel for the petitioner-tenant and Sri Kshitij Shailendra, learned counsel for the respondents-landlord.
2. Present petition has been filed for quashing the order dated 1.9.2020 passed by the District Judge, Hathras in UPUB Appeal No. 1 of 2019. Further prayer has been made seeking quashing of the order dated 9.1.2019 passed by the Prescribed Authority / Civil Judge (Senior Division), Hathras in P.A. Case No. 12 of 2004.
3. Shorn of details, facts in brief are that the landlord filed release application under Section 21(1)(a) of U.P. Act 13 of 1972 (hereinafter referred to as the Act) against the petitioner-tenant herein seeking release of the shop in favour of the landlord on the ground of bona fide requirement of the shop no. 1 at Bengali Mandir Ramleela Chauk Veniganj, Hathras for the purpose of business of her younger son Pankaj Agarwal. It was asserted that the tenant is not carrying on any business in the shop in dispute and the same is lying vacant. The petitioner-tenant contested the matter on the ground that no default has been committed in payment of rent; the plaintiff-respondent is not the owner of the shop in question; the shop in question is owned by Swami Thakur Bihari Ji Maharaj Virajman Bangali Mandir, Ramleela Maidan, Hathras and the only role of the plaintiff no. 1 was to collect the rent on behalf of the Trust, therefore, the release application itself was not maintainable at the instance of the plaintiff-landlord-respondent; the respondents are merely Managers of the Trust property which includes the shop in question; Pankaj Agarwal for whose alleged need release is being claimed is gainfully employed in a private job; business is being carried on in the shop and is not lying vacant.
4. The release application was allowed by the trial court by the Prescribed Authority vide impugned judgment dated 9.10.2019. The appeal filed by the petitioner-tenant under Section 22 of the Act was dismissed by the lower appellate court vide judgment and order dated 1.9.2020.
5. The trial court framed three issues; whether the defendant is tenant of the plaintiff in the shop in dispute; whether the need of the landlady is genuine and bonafide; and in case the application is allowed or rejected, who will suffer greater hardship.
6. On issue no. 1 it was found that the defendant has accepted the applicant as landlady and in municipal assessment paper no. 95-c name of the landlady is recorded as owner, therefore, the petitioner herein is the tenant of the plaintiff. On issue no. 2 regarding genuine and bonafide need of the landlady it was found that Pankaj Agarwal son of the applicant no. 1 is admittedly working as an employee in ready-made garments shop of Ashok Khurana and as such need to establish him in his own business on the shop in question is bonafide and genuine. Insofar as issue of comparative hardship is concerned, it was found that there was specific allegation levelled by the landlady that the shop is lying vacant and no business is being done. It was found that the tenant did not produce any evidence to establish that he is carrying business in the shop in question. That apart, it was found that no attempt to search alternative accommodation was also made by the tenant and therefore, as per the settled law the issue of comparative hardship was also decided in favour of the plaintiff.
7. In the appeal the appellate court recorded concurrent findings of fact. After considering the documents municipal assessment paper no. 48-c filed by the tenant and copy of assessment paper no. 95-c filed by the defendant it was found that the municipal assessment 48-c relates to some 'Balakhana' and it is not related to the disputed shop. It was found that in respect of shop in question the plaintiff was recorded in the capacity of owner. After appreciating the documents relating to SCC No. 25 of 2003 it was further found by the appellate authority that the tenant has accepted the applicant no. 1 as landlady and it was specifically admitted that she was collecting the rent from the tenant. Insofar as the bonafide need of Pankaj Agarwal younger son of the plaintiff is concerned it was found that in the written statement it was alleged that Pankaj Agarwal is not unemployed and is working in the shop of Ashok Khurana since long. Therefore, it was found that Pankaj Agarwal is working as an employee with another person and need to establish him in a business in the shop in question is genuine and bonafide. Insofar as working of Pankaj Agarwal since 1995-96 is concerned, it was found that at that point of time Pankaj Agarwal was aged about only 11 years and therefore, the tenant has failed to dispute the bonafide need of Pankaj Agarwal. It was also found that one Komal Prasad vacated the shop on 31.10.1995 according to his own free will, which was rented out to one Rakesh Agarwal in the same year as at that point of time Pankaj Agarwal was only 11 years of age and was studying in Class-7 only, therefore, at that point of time there was no occasion to establish him in business on the shop in question. The lower appellate court further found that although there are several other shops of the plaintiff, however, admittedly none of the shop is in vacant stage for the landlady or any member of her family. Insofar as contention of the tenant that he was carrying on business in the shop is concerned, it was found that no document whatsoever relating to tax, registration, income tax papers, bills of purchase, bank account or bills of sale have been filed by the tenant to establish that he is doing any business in the shop in question, therefore, the appeal was dismissed.
8. Challenging the impugned orders submission of Sri Manish Goyal, learned Senior Counsel appearing for the petitioner is that the courts below have committed a gross mistake of law in holding that plaintiff is landlady; placing reliance on paper no. 48-c it was submitted that the property belongs to Thakur Bihari Ji Maharaj Virajman Trust and the plaintiff is merely Manager of the Trust and therefore, the shop can be released only for the bonafide need of the Trust and release application at the instance of the plaintiff was not maintainable; paper no. 95-c has incorrectly been relied on by the courts below as it is only for the purpose of taxation and does not confer any ownership of the shop in question on the plaintiff; thus, findings recorded by the courts below are based on misreading of the evidence on record; in any case, Thakur Bihari Ji Maharaj Virajman Trust was a necessary party and therefore, release application was bad for non-joinder of necessary parties and was not maintainable; plaintiff no. 1 was admitted as landlady to the extent that she collects the rent from the petitioner-tenant and it is not the ground that the tenant has accepted relationship of the applicant no. 1; need of Pankaj Agarwal son of applicant no. 1 has incorrectly been considered by the courts below as the applicant could have been considered only for the bonafide need of the Trust; findings recorded by the courts below on bonafide need of Pankaj Agarwal is perverse in nature as he is not unemployed; courts below have incorrectly decided the issue of comparative hardship by casting negative burden of proof on the tenant-petitioner by asking the proof that he is running the shop in question or not. Submission, therefore, is that the impugned judgments are illegal and are liable to be set aside.
9. Learned counsel for the petitioner has placed reliance on judgments in the cases of Junaid Ahmed vs. IInd Additional District Judge, Allahabad 1986 (1) ARC 418, Mohiuddin vs. IInd Additional District Judge, Allahabad 1986 (1) ARC 420, Sushil Kumar Soni vs. Smt. Sheela 2016 (1) ARC 284, Narender Kumar Manchanda vs. Hemant Kumar Talwar 2012 SCC Online Del 6125 2013 (197) DLT 171, Kedarnath Agarwal (dead) and another vs. Dhanraji Devi (dead) by Lrs and another 2004 (8) SCC 76 and Management of Madurantakam Sugar Mill Ltd. vs. S. Vishwanathan 2005 (3) SCC 193.
10. Per contra, Sri Kshitij Shailendra, learned counsel appearing on behalf of the landlord-respondent submitted that the findings of fact have been recorded on merits and warrants no interference; by the documentary evidence it was proved that the tenant has accepted the respondent as landlady as admitted in categorical terms that she used to collect the rent from the tenant; municipal assessment paper no. 95-c clearly shows that the name of the applicant no. 1 was recorded as owner of the shop in question, wherein the tenant-petitioner was shown to be the tenant; not only this even in the SCC proceedings the tenant has admitted the applicant no. 1 as landlady of the shop in question; in release application proceedings only tenant and landlord relationship is to be seen; in any case, the court is not bound to go into the dispute regarding title; status of the tenant-petitioner herein as tenant was never in question and infact, is admitted to him; insofar as bonafide need of Pankaj Agarwal is concerned, admittedly, he is in a private job working on a shop of a different person and he has no business of his own, therefore, need of Pankaj Agarwal s/o applicant no. 1 is genuine and bonafide; no other shop in vacant stage is available to the applicants; insofar as comparative hardship is concerned, the electricity bill filed in evidence clearly shows that huge arrears towards electricity charges is mentioned in every bills which clearly indicates that shop is not being used for any purpose and no other document to indicate that any business is being run in the shop in question was ever filed before the courts below; moreover, there is nothing on record to indicate that the tenant made any effort to search any alternative accommodation during pendency of the release application, therefore, as per the settled law the issue of comparative hardship has been correctly decided in favour of the applicants.
11. Learned counsel for the respondent has placed reliance on judgments in the cases of Kanaklata Das and others s. Naba Kumar Das and others 2018 (2) SCC 352, Tapeshwari Mal vs. Rishikesh Varma 2018 (131) ALR 517, K.D. Dewan vs. Harbhajan S. Parihar AIR 2002 SC 67, Lakshmi Traders Akbarpur Mandi and others vs. Navin Rastogi and another 2019 (1) ADJ 801, Raj Mohan Krishna vs. The Second Additional District Judge and others AIR 1993 Allahabad 40, Vijay Lata Sharma vs. Raj Pal and another AIR 2004 SC 4390 and Jeet Kaur and another vs. Bala Ji Builders and others 2019 (4) AWC 3123.
12. I have considered the rival submissions and have perused the record.
13. The findings recorded by the courts below have taken into consideration in the earlier part of this judgment. The admitted position in the present case is that the tenant has accepted the applicant no. 1 as his landlady in his written statement itself. Further, as per Kanaklata Das (supra) it is the settled law that for existence of landlord and tenant relationship, the landlord is required to plead and prove only two things (i) existence of relationship of landlord and tenant between the parties; and (ii) grounds of eviction mentioned under relevant rent law as in case of these two things proved, the eviction suit is bound to succeed. Paragraph 11 of Kanaklata Das (supra) is quoted as under:-
"11. There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question arose in this appeal. These principles are mentioned infra:
11.1. First, in an eviction suit filed by the plaintiff (Landlord) against the defendant(Tenant) under the State Rent Act, the landlord and tenant are the only necessary parties. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.
11.2. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff-landlord has sought defendant's-tenant's eviction under the Rent Act exists. When these two things are proved, the eviction suit succeeds.
11.3. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See: Ranbir Singh vs. Asharfi Lal, 1995(6) SCC 580).
11.4. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. (See-Ruma Chakraborty vs. Sudha Rani Banerjee, 2005(8) SCC 140) 11.5. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. (See-Udit Narain Singh Malpaharia vs. Board of Revenue AIR 1963 SC 786) 11.6. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. (See-Kasthuri Radhakrishnan vs. M. Chinniyan, 2016(3) SCC 296)"
14. In K.D. Dewan (supra) Hon'ble Supreme Court has held that Act deals with the rights and obligations of a landlord only as defined therein and that ownership of a person is immaterial for the purpose of the Act. Paragraphs 7 and 14 whereof are quoted as under:-
"7. A perusal of the provision, quoted above, shows that the following categories of persons fall within the meaning of landlord : (1) any person for the time being entitled to receive rent in respect of any building or rented land; (2) a trustee, guardian, receiver, executor or administrator for any other person; (3) a tenant who sub-lets any building or rented land in the manner authorised under the Act; and (4) every person from time to time deriving title under a landlord. Among these four categories of persons, brought within the meaning of "landlord", Mr. Sharma sought to derive support from the last category. Even so, that category refers to a person who derives his title under a landlord and not under an owner of a premises. For purposes of the said category the transferor of the title referred to therein must fall under any of the categories (1) to (3). To be a landlord within the meaning of clause (c) of Section 2 a person need not necessarily be the owner; in a vast majority of cases an owner will be a landlord but in many cases a person other than an owner may as well be a landlord. It may be that in a given case the landlord is also an owner but a landlord under the Act need not be the owner. It may be noted that for purposes of the act the legislature has made a distinction between an owner of a premises and a landlord. The Act deals with the rights and obligations of a landlord only as defined therein. Ownership of a premises is immaterial for purposes of the Act.
14. From the above discussion it follows that such a truncated meaning of the term "landlord" cannot be imported in clause (c) of Section 2 of the Act having regard to the width of the language employed therein and there is no other provision in the Act to restrict its meaning for purposes of Section 13(3)(a) thereof to an owner of the premises alone. The appellant has been paying monthly rent of the premises to the respondent from 1976. The respondent is thus the landlord of the premises under the Act and is entitled to seek relief under Section 13(3)(a) of the Act. In this view of the matter, we find no illegality in the order of this High Court under challenge. The appeal is without merit and it is liable to be dismissed."
15. In Tapeshwari Mal (supra) I have held that since the status of the petitioner as tenant has not been disputed, thus, there is no legal infirmity in the impugned order of eviction.
16. Although the landlord has placed evidence of his ownership on record and has been upheld by both the courts below and there is a concurrent finding on record in this regard, however, I have discussed the abovenoted law for the reason that the case of the petitioner holds no ground that the plaintiff, who had filed the suit is not the landlord and therefore, the release application was not maintainable.
17. The law as quoted above clearly covers the argument of learned counsel for the petitioner on the question of title and landlordship both.
18. Insofar as the bonafide need of Pankaj Agarwal is concerned, it is admitted that he is in some private job in a shop, therefore, he is not having any independent business of his own and therefore, need to settle him in a business on a shop in dispute is genuine and bonafide. Insofar as comparative hardship is concerned, bare perusal of electricity bill annexed with the present petition clearly indicates that in every bill huge arrears of electricity towards minimum charges have been indicated, which clearly indicates that the shop in question was not in use and there was no material consumption of electricity units, which may indicate that shop is in use for business purposes. The appellate authority has also noticed the fact that no document whatsoever towards payment of tax, income tax, bills of purchase, sales bill and registration of shop have been placed on record to indicate that infact, any business is being carried on. That apart, it is also not in dispute that no effort was made by the tenant to search any other alternative accommodation during pendency of the litigation. Therefore, in view of the settled law on this issue it cannot be said that the tenant has any comparative hardship. It is held that this issue has been correctly decided by the courts below.
19. I have gone through the rulings relied on by learned Senior Counsel appearing for the petitioner. For the discussions made hereinabove, I do not find that the rulings relied upon by the learned Senior Counsel appearing for the petitioner are of any help to him.
20. In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed.
21. 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-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.7.2021;
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of a self verified copy of this order;
(3) The tenant-petitioner shall pay entire decretal amount, if any, within a period of two months from the date of receipt of certified copy of this order.
(4) The tenant-petitioner shall pay damages @ Rs. 4,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.7.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;
(7) 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.
(8) In case, the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
22. There shall be no order as to costs.
Order Date :- 5.2.2021 Lalit Shukla