Court No. - 30
Case :- WRIT - A No. - 19532 of 2016 Petitioner :- Saurabh Yadav Respondent :- Kunj Bihari Tiwari And 2 Others Counsel for Petitioner :- Siddharth Niranjan,P.K. Dubey,Prabhat Kumar Counsel for Respondent :- Sanjay Kr. Srivastava,Ajay Kumar Srivastava,Rama Goel Bansal
Hon'ble Vivek Kumar Birla,J.
Heard Sri Dharam Pal Singh, learned senior counsel assisted by Sri Siddharth Niranjan, for the petitioner and Ms. Rama Goel Bansal, learned counsel appearing for respondent-landlord and perused the record.
Present petition has been filed challenging the order dated 08.07.2015 passed by the Additional Civil Judge, Court No.2, Kanpur Nagar and the judgment and order dated 25.01.2016 passed by the Additional District Judge, Court No. 23, Kanpur Nagar.
By the impugned order dated 08.07.2015, the prescribed authority allowed the release application filed by the landlord (respondent no. 1 herein) and the appeal filed by the tenant (petitioner herein) was dismissed by the lower appellate court. The release application was filed by the landlord on the ground that the petitioner is tenant of two rooms in house no. 118 of 408, Kanpur Nagar and without permission of the landlord, the residential accommodation of two rooms was converted into shop. It was further stated that certain part of the same house has been vacated by the other tenant on the basis of compromise in another release application, however, this portion is required for the purpose of construction of toilet, bathroom and garrage and, therefore, the need of the landlord is bonafide. The same was contested by the tenant on the ground that the petitioner is having photo framing shop in the property in question and admittedly the landlord is in possession of the accommodation vacated by the other tenant. The landlord is working in provident fund office at Lucknow and, therefore, the need is not bonafide.
Three issues were framed by the trial court. On issue no. 1 it was found that there is landlord- tenant relationship between the parties. On issue no. 2 it was found that the need of landlord is bonafide, inasmuch as the requirement of the landlord for the purpose of construction of toilet, bathroom and garrage is genuine so that the landlord may enjoy the entire house, by also noticing the fact that the other portion vacated by the other tenant can only be enjoyed thereafter and, therefore, the need for that purpose is bonafide. Comparative hardship was also found in favour of the landlord. Challenging the aforesaid findings, the appeal was filed by the tenant, which was dismissed Submission of learned counsel for the petitioner is that it has been incorrectly mentioned that the tenanted accommodation is required for the purpose of landlord's family and admittedly the petitioner is in possession of the accommodation that has been vacated by the other tenant. It was asserted that since the landlord is living with his family at Lucknow, therefore, the need is not bonafide and it cannot be presumed that the tenanted accommodation is required for the purpose of construction of toilet, bathroom and garrage as the landlord is not living at Kanpur Nagar. The submission, therefore, is that the need of the landlord is not bonafide.
Per contra, learned counsel appearing for the landlord-respondent submitted that it is the specific case of the landlord that for enjoyment of the portion that has been vacated by the other tenant on the basis of compromise, and the present tenanted accommodation is required for the purpose of construction of toilet, bathroom and garrage as such the need of the family is bonafide. It has been further categorically asserted that it is because of this reason, the landlord is living in a tenanted accommodation at Lucknow and his need is bonafide and genuine as his house is required for permanently living at Kanpur.
I have considered the rival submissions and have perused the record.
On perusal of the record, I find that there is no dispute about the fact that the certain portion of the same house has been vacated by the other tenant on the basis of compromise. The findings recorded by both the courts below that the tenanted accommodation is required for the purpose of construction of toilet, bathroom and garrage for effective utilisation of the portion that has already been vacated by the other tenant. Apart from that, it is also clear that admittedly, the other portion was vacated by other tenant even before the filing of the release application.
Under such circumstances, it cannot be said that the requirement of construction of toilet, bathroom and garrage for the effective and proper use of the other portion of the same house is not bona fide in nature. The court below has also found that although a copy of the application for allotment has been filed by the tenant, however, no serious effort has been made. However, apparently except filing of this application no other effort has been made by the tenant to find out any alternative accommodation.
All such findings have been appreciated on the basis of documentary and oral evidence on record and therefore, I do not find any legal infirmity in the orders impugned herein.
A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited.
In such view of the matter, I do not find any good ground to interfere in the judgment and order of the court below in the present petition and the same is accordingly dismissed.
At this stage, learned counsel for the petitioner 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-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.5.2019.
(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 certified copy of this order;
(3) The tenant-petitioner 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-petitioner shall pay damages @ Rs. 1,500/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.5.2019 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-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.
There shall be no order as to costs.
Order Date :- 21.8.2018/SKG