Heard learned counsel for the parties and perused the record.
Petitioner has filed this writ petition with the prayer to quash the impugned order dated 26.5.2010 passed in P.A. Appeal No.2 of 2006, Ramesh Chandra Vs. Thakur Prasad and order dated 1.3.2006 passed in PA Suit No.9 of 2004, Thakur Prasad Vs. Ramesh Chandra, annexed as Annexure 1 and 2 to the writ petition. A further prayer has been made in the nature of mandamus directing the respondent not to evict the petitioner in pursuance of the impugned orders and except according to the provisions of law.
Sri Siddharth Nandan, learned counsel for the petitioner has argued that the impugned orders dated 26.5.2010 and 1.3.2006 have been challenged on the ground that the same stands vitiated on account of the fact that additional evidences filed by the petitioner to bring on record the huge income and properties of the landlord relevant for deciding the case were rejected, merely on an irrelevant ground that the source of the said documents has not been disclosed. He contends that from perusal of paragraph no.4 and 5 of the plaint it is clear that bonafide need set up by the landlord was admittedly for expanding his business and enhancement of the status in the society; that the High Court vide order dated 9.10.2007 had permitted the petitioner to challenge the order rejecting the additional evidence in case the appeal is finally decided against him and pursuant thereto, the petitioner had filed the aforesaid documents under Rule 16 (2) (c ) of the Uttar Pradesh Urban Bjuilding Regulation of Letting Rent and Eviction Rules, 1972 framed thereunder stating that additional evidence pertaining to the income of the landlord is relevant for adjudicating comparative hardship, hence the view taken by the athorities is absolutely erroneous in view of the specific need set up by the landlord;
It is stated that the landlord has various shops, commercial properties and residential houses as detailed in the application appended with the supplementary affidavit; which had not been denied by the landlord in his objection; that the documents filed shows that the landlord is filing income tax return making investments and procuring assets to the tune of more than Rs.30 lakhs annually; that two sale deed executed on 20.6.2002 for consideration worth Rs. 3,43,770/- and 2,86,020/- respectively demonstrate the financial capacity of the landlord; that petitioner had also filed an application under Right to Information Act which was arbitrarily rejected on the ground that the court may summon the information, if required and that the landlord had also given a notice dated 28.8.2002 to one Ravinder Kumar, one of his tenants wherein he has admittedly averred that he is running an utensil shop, whereas in the present proceeding he has denied the same.
It is submitted that it is undisputed fact that in SCC suit no. 8 of 2004 filed by the landlord a specific finding was recorded that the rent of the shop is Rs.100 and there is no arrear of rent; that petitioner had also moved an application before the Nagar Palika for allotment of shop but vide letter dated 18.4.2007 he had been informed that no shops are vacant for allotment hence another application was moved by him under Rule 10 (1) of the Rules, 1972 in this regard; that the petitioner had also taken a loan of Rs.50,000/- for his shop which is still continuing; that area of the shop is merely 4.9 ft x18 ft = 88.20 sq. feet for which the petitioner-tenant has already paid Rs.5000/- under the orders of High Court and is continuously paying Rs.500/- per month and hence, in view of these facts the appellate court itself had recorded a finding that there is no other accommodation available with the petitioner except the shop in dispute which is only source of livelihood., the writ petition is liable to be allowed.
It is further submitted by the counsel for the petitioner that the landlord has two commercial properties measuring 1233 Sq.feet and 13 ft x10 ft =130 Sq. feet and a shop right in front of the shop in question in which he carries on business of utensils. It is also stated that in a third sale deed dated 8.12.1982 the landlord is co-owner of an agricultural land measuring 5.964 hectors and he also has two other shops in his possession one of which is immediately next to the shop in question and is vacant. The other shop is also in the proximity in which one Sri Vishwanath was the tenant. This shop is said to have also come into the possession of the landlord after the death of the tenant Vishwanath on 28.10.2006.
It is pointed out that the aforesaid facts were not denied by the landlord as such the petitioner had also moved an application for appointment of an Advocate Commissioner which was also rejected; that the application for additional evidence Under Order 41 Rule 27 CPC ought to have been tested and reasons in support of the application should have been scrutinized by the Court by ignoring opportunity to the petitioner to prove the said evidence but the Courts below did not provide such opportunity as such the impugned order would stand vitiated for non compliance of principles of natural justice.
It is then submitted that need for augmenting the income of the landlord and also the need for his grandson is based on assumption as the grandson was studying in 11th standard at that time. Hence the need of the landlord and his grandson would become non-existant in case the additional evidence is filed be taken on record for considered in its proper prospective as it is proved from it that sufficient accommodation for business is available to the landlord evem though no particular business had been mentioned in the plaint, for which the shop was claimed to be required and that after the finding of the appellate court that the petitioner-tenant has no other shop wherein he could move his business to sustain his livelihood, the benefit of Rule 16 (2) (c ) of the U.P. Urban Buildings (Regulation of Letting) Rent and Eviction Rules, 1972 ought to have been given to him. It is stated, however, in view of the rejection of the submission of additional evidence at the initial stage itself by the impugned order stands vitiated it for non consideration of the relevant documents by which the bonafide needs set up by the landlord is completely eclipse and the comparative hardship on the face of the record would be greater for the petitioner than the landlord.
In support of this contention the petitioner's counsel has placed reliance on the following decisions;
(i) Eastern Equipment and Sales Limited Vs. ING Yash Kumar Khanna, (2008) 12 Supreme Court Cases, 739.
(ii) Dharam Chand Pandey Vs. District Judge, Faizabad and others, 2010 (4) ADJ, 610.
(iii) M/S Durga Bhagwati Industries, Hathras and others Vs. Om Prakash Lohia and others, 2006 (9) ADJ, 402 (All).
(iv) Transport Corporation of India Vs. M/S Bal Krishna Lal Poddar Ltd and others, 1979 ARC, 371.
(v) Anil Kumar Singhal Vs. IInd Additional District Judge, Meerut and others, 1987 (2) ARC, 168.
(vi) Krishna Prasad Vs. Bharat Prasad and others, 2009 (4) AWC, 3432, Sri Pradeep Kumar, learned counsel for the respondent has argued that disputed premises is shop No.173 Area 4.9 feet x18 feet = 88.20 Sq. feet. It is situated in Bazar Homeganj District Etawah purchased by respondent Thakur Prasad by registered sale deed dated 20.6.2002; that release application under section 21 (1) (a) of U.P. Act No. 13 of 1972 was filed by landlord on 29.3.2004 before the Prescribed Authority for his personal need and for establishing his son also in business for augmenting the income of the family; that the landlord Hari Om filed his own affidavit as well as the affidavits of Sarvati Devi, Kapil Kumar, Baldeo Singh in support of his cases. The petitioner tenant Ramesh Chandra filed his own affidavit and the affidavit of Bhartendra and Ramesh Gupta. The Prescribed Authority after considering the case of the parties and the evidences on record allowed the release application by judgment dated 1.3.2006. The P.A. Appeal No.2 of 2006 Ramesh Chandra Vs. Thakur Prasad preferred by the tenant under Section 22 of the Act has been dismissed by the judgment dated 26.5.2010 passed by Additional District Judge, Court No.2,Etawah affirming the judgment of the Prescribed Authority.
It is submitted that both the Courts below have recorded findings after considering the evidence on record holding the need of the landlord for the shop in dispute to be bonafide and genuine and that question of comparative hardship also lies in his favour. It is stated that the petitioner-tenant filed application for submitting additional evidence before the lower appellate court during the pendency of appeal (which has also been filed before this Court along with an application and supplementary affidavit served upon the Counsel for landlord-respondent by the Counsel for the tenant on 27.9.2010 with the prayer that the supplementary affidavit be treated to be a part of writ petition.
It is stated that in the application filed by the petitioner before the Additional District Judge to permit him to produce documentary evidences, he also filed an affidavit in support thereof enclosing some papers relating to Income Tax Return of respondent of the year, 2003-2004, 2004-2005 and 2005-2006 along with some other papers filed before the Income Tax Department by the landlord-respondent. According to the counsel for the landlord these returns reflected the agricultural income of the landlord-respondent Thakur Prasad and interest by deposit made in interest earning schemes. That income of landlord-respondent shown in the aforesaid return is merely Rs.49000/-, Rs.70,838/- and Rs.48,000/- respectively in the aforesaid year and that the appellate court after considering the application for additional evidence, vide his order dated 9.3.2007 has rejected the said application by a reasoned and detailed order holding that the application for additional evidence and for granting permission for taking them on record was moved which relate to the Income Tax Return of Thakur Prasad without any description as to from where the photocopies of enclosed returns have been obtained by the petitioner-tenant. The Court also noted that previously also, an application paper no. 25-C moved by the petitioner-tenant had been rejected on merit after hearing both the parties. The appeal was thereafter listed for final argument but petitioner-tenant moved another application 60-C which was also rejected by the appellate court vide order dated 16.7.2007holding that the petitioner-tenant is adopting delaying tactic only to linger on the proceedings. The petitioner-tenant then preferred Writ Petition No.50196 of 2007 Ramesh Chandra Vs. Thakur Prasad, challenging the validity and correctness of the order dated 16.7.2007 which was dismissed vide order and judgement dated 9.10.2007. By the aforesaid order the petitioner-tenant was directed to deposit rent of Rs.500/- per month by the 7th of each succeeding month for timely payment to the landlord.
It is then stated that this order was not filed by the petitioner-tenant before the lower appellate court as the respondent had no knowledge of having been passed at the admission stage itself by which the petition had been disposed of. Later on, the Registry appears to have sent a copy of the said order, to the court below and it is then that the lower appellate Court came to know that compliance of the said order dated 9.10.2007 is not being made by the petitioner-tenant.
Counsel for the respondent argues that in the aforesaid circumstance, the execution proceeding started on the ground of default committed by the petitioner-tenant who again preferred Writ Petition No.16649 of 2010, Ramesh Chandra Vs. Thakur Prasad, in which this Court again granted conditional indulgence on 31.3.2010 directing the petitioner-tenant to deposit Rs.5000/- as cost and to further pay the amount of rent as directed by the High Court in accordance with the order dated 9.10.2007 without any further default; However, the petitioner-tenant again did not deposit the rent before the additional District Judge, Etawah in P.A. Appeal No.2 of 2006 as directed by this Court vide orders dated 9.10.2007 and 31.3.2010 aforesaid. It is also pointed out that it is apparent from the question answer form submitted by the petitioner to a quarry made to the Court that no receipt of deposit was available on the Court records.
It is vehemently argued that from the tender filed by the petitioner in the rejoinder affidavit it appears that he had deposited Rs. 5000/- in the court of Civil Judge (Senior Division), Etawah in Misc. Case, whereas other deposit slips show deposit to have been made by him in the court of IInd Additional District Judge, Etawah which are not at all confirming the fact that the direction and orders of the High Court have been complied with by the petitioner-tenant in making the deposit as such and the writ petition is liable to be dismissed on this ground also; particularly both the Courts below have recorded the finding that the release application filed by the landlord is for his bonafide need and the tenant would not suffer greater hardship in comparison to the landlord.
Having heard the learned counsel for the parties and on perusal of records it appears that the case set up by the landlord was that the tenant had taken the shop in dispute for business of general merchant at the rate of Rs.100/- per month and its rent was due from him with effect from 1st January, 2002 along with water tax and house tax since 13.2.1981. The sons of the petitioner tenant had started the business of "Atishbazi" from the shop in dispute under licence no.43 of 2003. The landlord is an old man living in first floor. he wants to augment his income by starting a business with his grandson in the shop in the ground floor so that he may be able to take care of his ailing wife. His grandson, namely, Sharad Agrawal is handicapped person to the extent of 40 percent disability and as is certified by the Chief Medical Officer he needs to be established in the shop in dispute for his survival.
From the perusal of the orders of the court below, it appears that the tenant is also having another shop situated in Sri Shanker Jee Ka Mandir from where he is in fact doing business and keeping the shop in question closed. It also appears that the Courts below have come to the conclusion that the landlord has no other shop available to him and he has also offered two years rent to the tenant as provided in the proviso to Section 21 of U.P. Act No.13 of 1972. Though, P.A. Suit No.16 of 2004 under section 21 (1) (a) of U.P. Act No.13 of 1972 filed by the landlord for setting up the need of his son was dismissed as withdrawn by him on 10.4.1998, whereas he has filed the present release application subsequently for setting up his own need and need of his handicapped grandson. The allegation of the petitioner-tenant that the landlord has also got another shop which has been inaugurated by Sri Ram Naresh Yadav (member of legislative assembly, Fertilizer in which business of Fertilizer and Medical Store is carried on, has not found favour by the appellate court, which has considered the evidence filed by the petitioner before the trial court and along with the application for additional evidence which has been rejected by the impugned order.
As regards the cases cited by the counsel for the petitioner are concerned, the ratio decided is thus:
In the case of Eastern Equipment and Sales Limited (supra), it has been held that the application for additional evidence under order 41 Rule 27 of C.P.C. ought to have been decided by the appellate Court.
In the case of Dharam Chand Pandey (supra), it has been held that amendment application should be looked into independently keeping in view the provision of order vi Rule 17of the C.P.C.
In the case of of M/S Durga Bhagwati Industries, Hathras (supra), it has been held that the appellate court ought to have tested reasons in support of application to produce additional evidence.
In the cases of Transport Corporation of India as well as Anil Kumar Singhal (supra), it has been held that the landlord having shop adjacent to the property in question- tenant has build up a good will - could should attempt not to dislodge the tenant from his business and consider partial relief. If sufficient accommodation is available to the landlord for his business - no interference required - may consider partial release.
In the case of Krishna Prasad (supra), it has been held that shop being only source of livelihood of petitioner ? release of shop will render him jobless ? no bonafide need of landlord ? balance of hardship tills in favour of tenant.
It appears that the contention of the tenant is wholly incorrect that the grandson does not fall within the definition of family as given in Section 3 (g) of the Act, for the grandson falls within the definition of family being male lineal descendent of the landlord and also in view of the decisions rendered in Murli Dhar Vs. XIIth Additional District Judge, Meerut and others (1996(28) A.L.R. 109), as well as in view of Shiromani Kant alias Mani Kant and others Vs. Additional District Judge, Meerut and others (1999(35) A.L.R.-153) and the decision rendered in Permanand Vs. District Judge, Jhansi and others (1998(32) A.L.R.-339), wherein it has been held that the grandson falls within the definition of family. It may be noted that the disability of the grandson has been certified by Chief Medical Officer to the extent of 40%. The tenant has also taken another shop No. 140 Katra Tekchand in the same premises where the shop in dispute is situated. Therefore, the tenant cannot oppose the release application on the ground that need of the landlord is not bona fide or the court ought to consider comparative hardship in such cases. The submission of learned counsel for the petitioner relying upon Bhagwan Das Versus Surendra Prakash Agarwal in Civil Misc. Writ Petition No. 62862 regarding reversal of findings of facts in respect of consideration of bonafide need and comparative hardships by the appellate court does not apply the questions of bonafide need and comparative hardship pales into insignificance since the petitioner tenant has acquired and occupies a vacant shop no. 140, Katra Tekchand, Etawah where he can conveniently shift his business from the shop in dispute for running his business there. The counsel for the petitioner has thus failed to establish any illegality in the order of the lower courts. It is settled law that every member of the family of the landlord has a right to establish himself in business or employment. The grandson of the landlord is a handicapped person. The grandfather though old can always be at hand if he is able to establish his grandson in the shop in the same building where he resides on the first floor. Even if other members of landlord's family are doing various business, it will not preclude the landlord to establish his grandson in business in the shop under the tenancy of the petitioner particularly when the petitioner tenant has acquired a vacant shop no. 140, Katra Tekchand, Etawah. Hence in view of this admitted fact and for all the reason stated this Court is not inclined to interfere with the matter in exercise of its extraordinary powers under Art. 226 of the Constitution.
The writ petition is accordingly dismissed. No order as to costs.
Order Date :- 16.5.2011 V.S.