Court No. - 5
Case :- WRIT - A No. - 12110 of 2019 Petitioner :- Prabhat Kumar Respondent :- Ratan Chand Jain (Since Deceased) And 8 Others Counsel for Petitioner :- Maithali Sharan Pipersenia Counsel for Respondent :- Gaurav Pundir
Hon'ble Surya Prakash Kesarwani,J.
1. Counter and rejoinder affidavits have been filed today, which are taken on record.
2. Heard Sri M.S. Pipersenia, learned counsel for the defendant- tenant/petitioner and Sri P.K. Jain, learned Senior Advocate, assisted by Sri Gaurav Pundir, learned counsel for the plaintiff- landlord/respondent.
3. Briefly stated facts of the present case are that half share of the disputed shop was owned by the original plaintiff – Ratan Chand Jain and the remaining half share he purchased from the erstwhile owner Sri Krishna Dutt Gaur by a registered sale deed dated 09.03.2000. Thus, the original plaintiff - Ratan Chand Jain was the owner and landlord of the disputed shop in which one Heera Lal was the tenant who was running a business in the disputed shop under the name and style of “Kanhaiya Lal Mohan Lal”. After the death of Heera Lal disputed shop was occupied by the defendant no.2/respondent no.2 herein, namely, Sri Ashok Kumar son of Satyapal. According to the defendant no. 2 Ashok Kumar, he is adopted son of Heera Lal, therefore, he started writing his father's name as Heera Lal. Defendant No.1 - Prabhat Kumar is the son of Ashok Kumar.
4. The original plaintiff has two sons and three daughters. His son Anil Kumar was carrying on business in a separate shop in which the second son Vinod Kumar was having some share. Vinod Kumar wanted to run his own business. Therefore, for setting up business for his second son Vinok Kumar the original plaintiff - Ratan Chand Jain issued a notice to the defendant-tenant dated 18.11.2010 on the ground of bonafide need of the disputed shop. Since the shop was not vacated by the defendants-tenants, therefore, the original plaintiff filed Rent Case No.04 of 2011 ( Ratan Chand Jain Vs. Prabhat Kumar & Ashok Kumar) which was decreed by the impugned judgment and decree dated 13.10.2014 passed by the Prescribed Authority/Civil Judge (J.D.), Anup Shahar, Bulandshahr. The Prescribed Authority recorded findings of bonafide need of the plaintiff-landlord and comparative hardship to be in his favour. It was also observed that at a nearby place the defendants-tenants have a shop which they are using as godown.
5. Aggrieved with the aforesaid judgment, the defendant- tenant/petitioner herein filed a Rent Control Appeal No.05 of 2014 (Prabhat Kumar Vs. Ratan Chand Jain and others) which was dismissed by the impugned judgment dated 25.05.2019, passed by the Additional District Judge, Court No.2, Bulandshahr. It appears that during pendency of the appeal the original plaintiff - Ratan Chand Jain died and he was substituted by his two sons and three daughters, namely, Anil Kumar Jain, Vinod Kumar Jain, Smt. Madhu Jain, Smt. Manju Jain and Smt. Renu Jain, who are respondent nos. 1/1 to 1/5 herin. Aggrieved with the aforesaid judgment, the defendant- tenant/petitioner Sri Praphat Kumar has filed the present writ petition under Article 226 of the Constitution of India.
6. Sri M.S. Pipersenia, learned counsel for the defendant- tenant/petitioner submits as under:-
(i) Notice dated 18.11.2010 does not disclose that Vinod Kumar Son of Ratan Chand Jain was partner in the firm as on the date when the notice was issued. He took retirement on 01.04.2011 from the firm Anil Kumar Vinod Kumar (which was carrying on Sarafa business). Therefore, the plaintiff was not in bonafide need of the disputed shop as on the date of the notice dated 18.11.2010, inasmuch as, at that time Sri Vinod Kumar for whose need the rent case was filed, was employed.
(ii) In the partnership firm M/s. Gopi Chand Ratan Chand Jain, the original plaintiff was the partner and after his death his son Vinod Kumar has no need for the disputed shop inasmuch as he can run the business of his father.
7. In support of his submission, learned counsel for the petitioner has relied upon a judgment in the case of Roop Ram and others Vs. Smt. Geeta Rani & others 2017 (125) ALR 717.
8. Sri P.K. Jain, learned Senior Advocate, supports the impugned judgment. He relied upon a judgment of this Court in Hari Shanker Vs. Om Prakash and others, 2018 (2) ARC 866. He further submits that a finding of bonafide need and comparative hardship recorded by the courts below are findings of fact based on consideration of relevant evidence on record and, therefore, these findings can not be interfered with in writ jurisdiction under Article 226 of the constitution of India.
9. I have carefully considered the submissions of learned counsels for the parties.
10. There is no dispute of landlord-tenant relationship. The release application under Section 21(1)(a) of U.P. Act No.13 of 1972 was filed by the original plaintiff on the ground of bonafide need of the disputed shop for setting up business of his son Vinok Kumar. In the aforesaid Rent Case No.04 of 2011, the parties led their evidences. The plaintiff- landlord has stated that no other shop is available in a vacant state for starting Sarafa business by his son Vinod Kumar. The defendants- tenants could not establish that Vinod Kumar has any other accommodation in a vacant state for starting his business. Vinod Kumar wants to start Sarafa business from the disputed shop which according to plaintiff is suitable for running the business. It was proved by the plaintiff-landlord that the defendant-tenant has a shop at a nearby place which is allegedly used as godown. During pendency of the appeal, two storied shop/house was purchased by the defendant- tenant at a nearby place in the name of his wife Smt. Shital Gupta by a registered sale deed registered on 10.09.2015 in the office of the sub- registrar Anup Shahar.
11. Both the courts below have recorded concurrent findings of fact based on consideration of relevant evidences on record that the plaintiff-landlord is in bonafide need of the disputed shop and comparative hardship to be in his favour. These being the findings of fact based on consideration of relevant evidences on record, can not be interfered with in writ jurisdiction under Article 226 of the Constitution of India, more so in view of the fact that learned counsel for the petitioner has neither argued nor could point out any perversity in these findings of fact.
12. The submission of learned counsel for the defendant- tenant/petitioner that the notice does not disclose that Vinod Kumar was a partner as on the date when the notice was given, is wholly misconceived inasmuch as even if the Vinod Kumar was having some share in the firm of his brother Anil Kumar, his bonafide need can not be doubted unless disproved. Vinod Kumar wanted to start his separate business. There can be no irregularity if the landlord chooses to use his property for running business by his second son Vinod Kumar, independent of the business of his other family members. Similar view has been taken by this Court in paragraph 12 of the judgment in the case of Hari Shanker (supra) after relying upon the judgment of Hon'ble Supreme Court in the case of Faruk Ilaht Tamboli and another Vs. B.S. Shankarrao Kokate (D) by Lrs. and other, 2016 (1) ARCT (1) and Anil Bajaj and another vs. Vinod Ahuja, 2014 (2) ARC 265. Paragraph 12 of the judgment in the case of Hari Shanker (supra) is reproduced below “12. In the case of Faruk Ilaht Tamboli and another (supra) Hon'ble Supreme Court held that it certainly cannot be the claim at the behest of a tenant, that the owner of a premises must continue in business with his parents or relations, assuming there was a joint business activity, to start with. That is usual, and happens all the time when children come of age. And thereafter, they must have the choice to run their own life, by earning their own livelihood. The property owner has the right to use his property as he chooses, for running his business. There could be no irregularity if owner of the property chooses to use his property for running his business, independent of the business of other family members. In the case of Anil Bajaj and another vs. Vinod Ahuja (supra), Hon'ble Supreme Court held that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. Even if the landlord is doing business from various other premises, it cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business.”
13. The other submission of learned counsel for the defendant- tenant/petitioner that in the event of death of the original plaintiff - Ratan Chand Jain, his partnership business may be carried on by Vinod Kumar and, therefore, there is no bonafide need of the disputed shop for Vinod Kumar is also totally misconceived and not legally sustainable. The reason is that Vinod Kumar is not the only successor of deceased Ratan Chand Jain who has two sons and three daughters. Vinod Kumar wanted to set up his separate business. The tenant can not dictate the terms to the landlord. It has been held by Hon'ble Supreme Court in Anil Bajaj and another (supra) that even if the landlord is doing business from other premises, it can not foreclose his right to seek eviction from the tenanted premises so long as he intends to use the tenanted premises for his own business. The principles laid down has been followed by this Court in Hari Shanker (supra). The judgment in the case of Roop Ram and other (supra) relied by learned counsel for the defendant-tenant/petitioner does not support his case. Perusal of paragraph 13 of the judgment in Roop Ram's case (supra) shows that this Court referred to judgments of Hon'ble Supreme Court in the case of Martin & Harris Ltd. Vs. 6th Additonal District Judge and others, (1998) 1 SCC 732 on the point of waiver of notice.
14. For all the reasons aforestated, I do not find any merit in this petition. Consequently, the writ petition fails and is hereby dismissed.
Order Date :- 21.8.2019/vkg