Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 4733 of 2018 Petitioner :- Smt. Ramshree And Another Respondent :- Vimal Kishore Nigam And 2 Others Counsel for Petitioner :- Manish Tandon Counsel for Respondent :- Anil Kumar
Hon'ble Vivek Kumar Birla,J.
Heard Sri Manish Tandon, learned counsel appearing for the petitioners and Sri Atul Dayal alongwith Sri Anil Kumar, learned counsel appearing for the caveator landlord respondent. Sri Dayal has filed his Vakalatnama on behalf of the landlord respondent today, which is taken on record.
Present petition has been filed for setting aside the impugned order dated 30.5.2018 passed by the Additional District Judge, Court No. 14, Kanpur Nagar in Rent Appeal No. 43/2017 and also judgment and order dated 16.8.2017 passed by the Prescribed Authority/Civil Judge (S.D.) Kanpur Nagar in Rent Case No. 35/2012, Vimal Kishore Nigam Vs. Ayodhya Prasad Gupta and others.
The release application filed under Section 21 (1) (a) of U.P. Act 13 of 1972 was filed by the landlord for his personal need with regard to House No. 2/269, Naubatganj Peshwanagar, Kasba Bithur, district Kanpur Nagar on the ground that he is living with his brother at a different address being House No. 109/409, Nehru Nagar, Kanpur which is his ancestral house and has now come in the share of his brother and and his brother and his family consisting of himself, his wife and three sons are living in two rooms and one tin shed and the landlord is living with them in a room of 6 x 8 feet size and as such he has personal need of the tenanted house. It was stated that the landlord had a tin shed only in the tenanted accommodation in his possession which is not sufficient and thus the tenanted accommodation is required for his personal need. It was further claimed that the tenant has his own house as described in paragraph 8 of the plaint and as such he can easily shift to the same and the tenanted accommodation can be released.
The release application was contested on the ground that the plaintiff respondent has no requirement of the house; he is an Advocate and therefore, he cannot carry out his computer business as per law and the tenant does not have any house of his own. The copy of the plaint in the injunction matter filed by the father of the tenant petitioner herein was also filed before the court below to explain the same. The release application was allowed and the appeal against the same was dismissed by the appellate court.
Three issues were framed by the trial court.
First issue regarding relationship of landlord and tenant was decided in affirmative. The second issue regarding bonafide need was decided in favour of the landlord holding that the landlord is living with his brother and he is an Advocate and he requires one room for this purpose and the room in his possession in the house of his brother is very small. It was also found that only tin shed is available in the house regarding which the release application was filed, which is not sufficient. It was also found that earlier the landlord was married but was divorced and it cannot be said that he is not entitled to re-marry. Under such circumstances, the bonafide need was found in favour of the landlord.
In so far as the comparative hardship is concerned, the case of the tenant was that the alternative accommodation had infact already been acquired by the authority, however, the it was decided in favour of the landlord as it was found that during the pendency of the release application no effort was made by the tenant to search out any alternative accommodation.
The appeal filed by the tenant was rejected.
Submission of learned counsel for the petitioners is that initially the release application was filed on the basis of personal need of the landlord on the ground that two rooms and one store room and one kitchen are required for his personal need wherein in one room he will carry out his computer work and one room is required for car parking. He submitted that the landlord is a registered Advocate and therefore, he cannot carry out computer business and thus the need set up was not bonafide. He further stated that the amendment application filed for amending the plaint on the ground that he has now become an Advocate and therefore, the accommodation is required for his profession was rejected therefore, this need cannot be considered by the courts below and has been wrongly appreciated by the courts below. Submission is that the need for Advocate chambers once rejected by rejecting the amendment application filed for this purpose cannot be considered. It is further submitted that the need has been set up for the nephew which cannot be pursued by the petitioner as his father and his son has not come forward to file this application or their affidavits.
Per-contra, learned counsel appearing for the respondent submitted that the release application was filed for the personal need which still exists. It is not in dispute that the landlord - respondent is living in one room of 6 x 8 feet in the house of his brother in Nehru Nagar, Kanpur of which his brother is the exclusive owner and in partition the tenanted accommodation, regarding which the release application has been filed, has come in the share of the landlord - respondent and admittedly the landlord respondent is only in possession of a tin shed in this house and therefore, his need is bonafide and genuine even if his need of doing Advocate profession is not considered or is not included. Submission is that practical aspect is that once it is not in dispute that the landlord is living with his brother in a very small room and his need is genuine and bonafide, even if the amendment application is rejected, it would not have any effect to the landlord.
I have considered the rival submissions and have perused the record.
On perusal of record, I find that that undisputed fact that emerges from the pleadings and the findings recorded by the courts below is that the landlord is living in a small room of 6 x 8 feet in House No. 109/409, Nehru Nagar, Kanpur belonging to his brother and that the accommodation itself is not a very big accommodation wherein his brother is living with his family consisting of himself, his wife and three sons in two rooms and in a tin shed only and therefore, the accommodation is not sufficient to cater their need and for this reason the release of the tenanted accommodation being House No. 109/409, Nehru Nagar, Kanpur belonging to the landlord was sought. It is also not in dispute that the respondent landlord was enrolled as an Advocate in the year 2011. Learned counsel for the respondent has pointed out that prior to his enrollment as an Advocate, the landlord respondent was doing some computer work and now is an Advocate and the tenanted accommodation is required for carrying out Advocate's profession effectively. The personal need of the landlord thus remains. It is also noticeable that while contesting his claim the tenant has claimed that the landlord is in possession of a tin shed and the landlord can fulfill his need in that tin shed. Clearly, it is not in dispute that the landlord is in possession of only a tin shed in his own house whereas the tenant is in possession of two rooms plus other accommodation. Under such circumstances, it is not for the tenant to guide the landlord regarding his own need as he is the best judge of his need. In the opinion of the Court, once the landlord is living with his brother and is in possession of a small room of 6 x 8 size, his need as set up, by any standard, is bonafide.
Under such circumstances, I do not find any good ground to interfere in the orders impugned herein.
This petition is devoid of merit and is, accordingly, dismissed.
At this stage, learned counsel for the petitioners prays that some time may be granted to vacate the premises.
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 30.4.2019.
(2) The tenant-petitioners shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioners shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The tenant-petitioners shall pay damages @ Rs. 3,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.4.2019 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-petitioners 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-petitioners 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 petitioners, they shall also be liable for contempt.
There shall be no order as to costs.
Order Date :- 30.7.2018 p.s.