JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
2. The facts of the case, in brief, are that Ram Narayan, husband of petitioner No. 1, Smt. Kesar Devi was the tenant in the shop in House No. 50/267, Halsi Road, Kanpur, in which he carried on the business of sale of white-washing materials etc. Respondent No. 2, Smt. Phool Kunwar and respondent No. 3, Shyam Charan filed Release Application No. 69 of 1987 against the tenant Ram Narayan under Section 21(1) (a) of the U. P. Act No. XIII of 1972, on the ground that respondent No. 3, Shyama Charan, landlord is a heart patient and has been medically advised by the doctors to avoid climbing up the stairs.
3. Sri Ram Narayan filed objection to the Application No. 69/87 on 29.8.1988 stating that he was the tenant of the previous landlord Rajab Baksh in the disputed shop, through allotment dated 17.7.1958, which is not a residential accommodation.
4. A commission was issued by the prescribed authority on the application of the father of the petitioner No. 1 Sri Ram Narayan which submitted its report dated 31.3.1998.
5. The prescribed authority by the judgment and order dated 12.8.1993, allowed the release application of the landlords.
6. The petitioners preferred an appeal under Section 22 of the U. P. Act No. XIII of 1972 against the aforesaid order dated 12.8.1993, which was registered as R. A. No. 129 of 1993, on the ground that the prescribed authority has not considered the oral and documentary evidence available on record, as such the findings of the prescribed authority are perverse.
7. The appellants also filed Sales Tax Form No. 1 prepared under Rule 50 of the Sales Tax Rules, as well as challans for the years 1990 onwards to establish that this accommodation in dispute was a shop and not a residential accommodation. The aforesaid appeal was allowed by the IVth Additional District Judge, Kanpur. by order dated 21,4.1994 who remanded the matter back to the prescribed authority after framing the following 4 questions for re-decision:
(1) Whether between Shyama Charan, applicant No. 2 in release application and respondent No. 3 in the writ petition, and the father of petitioner Nos. 2 to 7 there was relationship of landlord and tenant?
(2) Whether the landlord has bona fide need of the disputed accommodation?
(3) Whether the objection of the tenant under Section 21 (1) (a) of Act No. XIII of 1972 is not valid and whether House No. 50/256. Halsi Road is residential or non-residential?
(4) Whether comparative hardships of the landlord are more than the tenant?
8. In pursuance of the remand order dated 21.4.1994, the matter again came up before the prescribed authority. The prescribed authority on remand again allowed the release application on 31.3.1998 on the ground of comparative hardships in favour of respondent No. 3. Aggrieved by the order the petitioner Smt. Kesar Devi, Durga Prasad, Naresh Chandra, Raju Kumar and Rubi preferred Rent Appeals No. 78 and 80 of 1998. Another rent appeal was preferred by Jagdish Prasad and Ramesh Chandra.
9. After remand of the case, Smt. Phool Kunwar and Ram Narayan died in the year 1996 and their heirs respondent Nos. 3 to 10 and all the seven petitioners have been substituted. An application under Section 34 read with Rule 22 (d) of U. P. Act No. XIII of 1972 was also filed for formal amendment in the written statement appended as Annexure-10 to the writ petition. The appellants of Appeal No. 78 of 1998 also filed an application to the effect that they have got possession of two rooms from Ram Kumar during the pendency of the appeal in which the son of respondent No. 3 is doing his business in the name and style of Tirupati Sanitary Stores.
10. The aforesaid appeals were thereafter dismissed by the Additional District Judge, Court No. 1, Kanpur Nagar, vide common Judgment and order dated 19.4.2003 allegedly without giving any opportunity to the petitioners for oral arguments.
11. It is urged by the learned Counsel for the petitioners that the grounds shown in the release application by the landlord before the prescribed authority are false as he had not submitted any documents in support of his contention. It is submitted that the prescribed authority illegally released the accommodation in dispute treating it to be a residential accommodation while from the evidence on record it is clearly established that the disputed accommodation is commercial, in which the petitioners were doing the business of selling of white-washing material etc.
12. It is also submitted that during the pendency of the appeals, as per the affidavit filed by petitioner No. 1, respondent No. 3 got possession of two rooms from Ram Kumar, the tenant, and is carrying on the business of sale of sanitary articles therein under the name and style of M/s. Tirupati Sanitary Stores on the ground floor, but the appellate court failed to consider this fact and has treated it as residential accommodation without recording any finding on the question of residential and non-residential nature of the disputed premises.
13. It is further submitted that as per the findings given by the prescribed authority respondent No. 3 is not the owner and landlord of the disputed premises as no rent was realized by him. It is stated that another room admeasuring 13 feet x 18 feet in which Budhai Ram, another tenant was running a Flour Mill came into the possession of respondent No. 3 during the pendency of the release application in which the daughter-in-law of respondent No. 3 has opened a P.C.O.
14. It is lastly submitted that as per direction of this Court vide order dated 8.4.2003 in Writ Petition No. 14621 of 2003, it was filed before appellate court on 10.4.2003. The petitioners were allowed opportunity for oral arguments by the appellate court in pursuance thereof. The case was thereafter fixed for filing written arguments on 16.4.2003 and for Judgment on 19.4.2003.
15. It is submitted that from the above it is clear that oral arguments of the petitioner could not be heard. Reliance has been placed by the learned Counsel for the petitioners on the decision rendered in Rqjeshwari (Smt.) v. Smt. Prema Agarwal 2005 (1) ARC 526. wherein the Court relying upon the decision rendered in Khurshida v. A.D.J. 2004 (2) ARC 64 : 2004 (1) AWC 851, held that the writ court while granting relief to the tenant in a rent control matter can enhance the rent.
16. The learned Counsel for the respondents contends that the petitioners have challenged the release order dated 31.3.1998 (Annexure- 7 to the writ petition) passed by the prescribed authority in Release Application No. 69 of 1987, Smt. Phool Kunwar (since deceased) v. Ram Narayan (since deceased) purported under Section 21(1) (a) of U. P. Act No. XIII of 1972 in favour of the landlord-respondent. Feeling aggrieved with the aforesaid release order, Rent Appeal No. 78 of 1998, Ram Narayan v. Smt. Phool Kunwar and Anr., was filed by the petitioner Smt. Kesar Devi wife of Late Ram Narayan. Another Rent Appeal No. 80 of 1988, Jagdish and Ors. v. Smt. Phool Kunwar and Ors. was filed by petitioner No. 2 Jagdish. The said appeal was dismissed on 19.4.2003 (Annexure-17 to the writ petition) which gave rise to the present writ petition filed by the tenant- petitioners.
17. It is submitted by the learned Counsel for the respondents that it is wrong to say that Shyama Charan Gupta, the landlord (respondent No. 3), had not filed any evidence in respect of his being a heart patient and blood pressure. It is stated that he had filed reports and certificates of Dr. V. K. Manik Tala of Laxmi Pati Singhania Hriday Rog Sansthan which is clear from the judgment of the prescribed authority.
18. In reply to the arguments advanced by the learned Counsel for the petitioner-tenants regarding not affording of opportunity of oral arguments in pursuance of order dated 8.4.2003, passed by this Court, it is urged that the tenant-petitioners have purposely and deliberately avoided to advance oral arguments in the appeal which was pending there for the last 5 years and the lower appellate court has therefore for the first time ordered on 26.3.2003 that written arguments may be filed till 1.4.2003 which is clear from order sheet annexed with the counter-affidavit.
19. It is submitted that on the aforesaid date, i.e., 1.4.2003, the landlord-respondent filed written arguments but as the petitioners did not comply with the order of the lower appellate court, a direction was again issued on 3.4.2003 to the petitioners to file written arguments and fixed 10.4.2003 for arguments which is evident from the counter-affidavit as well as the writ petition, however in the mean time the tenant-petitioner No. 2 Jagdish Chandra and Ors. had approached this Court by means of Writ Petition No. 14621 of 2003, Jagdish and Ors. v. District Judge and Ors., and obtained order on 8.4.2003 : 2003 (2) AWC 1153 by concealment of facts praying that they may be permitted to advance oral arguments before the court below either on 9.4.2003 or on 10.4.2003.
20. Further argument of the landlord-respondent is that the statement of facts in the judgment cannot be contradicted by filing affidavit or other evidence either by lawyer or litigant except before the Court concerned and not in High Court, either in appeal or in writ petition in view of the decision rendered by the Hon'ble Supreme Court in Bank of Bihar v. Mahavir Lal and Ors. , wherein it has been held:
Where a statement appears in the judgment of a Court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong, or the Court itself admits that the statement is erroneous. The remedy of a party aggrieved is by way of review.
21. In other decisions relied upon by the learned Counsel for the respondents, i.e.. State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. AIR 1982 SC 1249 and Roop Kumar v. Mohan Thedani . it is held:
If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected.
22. It is submitted on the strength of the aforesaid decision that the statement of the petitioners that so far the landlord got possession of two rooms from Ram Kumar, the tenant, who was carrying the business of sale of sanitary articles in the name of Tirupati Sanitary Store on the ground floor is wholly false, since after the death of the original landlord Smt. Phool Kunwar in the year 1998, Rameshwar Gupta son of Smt. Phool Kuriwar who became landlord of the said two rooms had obtained possession through release order in Rent Case No. 8/2000 and Sri Shyama Charan Gupta S/o Smt. Phool Kunwar, the landlord-respondent No. 3 has no concern with the aforesaid two room accommodation. It is stated that Sri Shyama Charan Gupta has not established any sanitary store as alleged by the petitioners. This is clearly averred in para 19 of the counter-affidavit.
23. Having heard the learned Counsel for the parties and from a perusal of record, it appears that the assertion of the landlord that the partition took place in his family has been disbelieved by both the courts below and it is concurrently held by both the courts below that Smt. Phool Kunwar was the landlord and she has set up the need for her son respondent No. 3 Shyama Charan Gupta who is aged about 60 years who has been advised not to climb upstairs being heart patient and blood pressure.
24. In so far as legality and validity of the aforesaid four questions is concerned, the prescribed authority has addressed itself to all the four questions. The answers to 1st and 2nd questions in the judgment of the prescribed authority are as under:
^^izLrqr ekeys esa loZizFke ;g fu.khZr djuk mfpr gksxk fd ;kph la0& oknxzLr fdjk;snkj okys Hkkx dk Lokeh ,oa yS.MykMZ gS vFkok ughaA ;kph la0&2 dk dFku gS fd og ekSf[kd ikfjokfjd caVokjk }kjk Lokeh ,oa yS.MykMZ gS tcfd foi{kh dk dFku gS fd Jhefr Qwy daoj ;kph la0&1 oknxzLr fdjk;snkjh okys Hkkx dh Lokfeuh ,oa yS.MykMZ gS A fueqZDr izkFkZuk i= esa ;kphx.k dk Li"V dFku gS fd oknxzLR fdjk;snkjh okyk edku 50&267 gkylh jksM iathd`r cSukek fnukad 11-1-1967 }kjk ;kph la0&1 us [kjhnk gS A i=koyh esa bl vk'k; dh rfud Hkh lk{; ugha gS fd ;kph la0&2 bl edkuds lg Lokeh gSaA Qwy dqaoj ds thfor jgrs fcuk fdlh varj.k ds foi{kh la0&1 ds v/;klu okys Hkkx vFkok fdlh Hkkx dk ;kph la0&2 Lokeh vFkok lg&Lokeh ugha gks ldrk gS A tgka rd ikfjokfjd caVokjk dk iz'u gS ;g la;qDr lEifÙk ds lEcU/k esa gks ldrk gS A ;g Li"V izrhr gksrk gS fd ;fn dksbZ caVokjk gqvk gksrk rks bldh foHkktu ;kstuk rS;kj gksrh ysfdu ,slk dksbZ vfHkys[k Hkh ugha gS A Li"V gS fd LFkku dh deh n'kkZus ds fy;s ;kphx.k dks vksj ls caVokjk }kjk ;kph la0^1 ds Lokeh gksus rFkk yS.MykMZ gksus dk dFku fd;k x;k gS A ;fn ;g eku Hkh fy;k tk;s fd ;kph la0&2 oknxzLr Hkkx ds caVokjk }kjk Lokeh gks x;s gS rks ;g Hkh ns[kuk vR;Ur vko';d gS fd os blds yS.MykMZ gSa vFkok ughaA loZ izFke ;kph la0&2 }kjk foi{kh dks caVokjk ds vk/kkj ij Lokeh ,oa yS.MykMZ gksus dh dksbZ lwpuk caVokjk gksus ds rqjUr ckn ugha nh x;h rFkk ;g lwpuk 2-9-1987 dks okn izLrqr djus ds iwoZ gh nh x;h A i=koyh esa vfHkys[k 102] 124 ls 140] 153] 202 ls 210 jlhn ,oa euhvkMZj gS rFkk Li"V gS fd Jherh Qwy dqaoj yS.M ysMh ds :i esa O;fDrxr #i ls rFkk euhvkMZj ls o"kZ 1987 rFkk blds iwoZ ,oa ckn esa foi{kh ls fdjk;k izkIr fd;k gS ;kph la0&2 dh vksj ls dHkh fdjk;k Hkh olwy ugha fd;k x;k gS vkSj u gh bl vk'k; dh dksbZ jlhn izLrqr dh x;h gS A bl vk'k; dk Hkh dksbZ vfHkys[k izLrqr ugha fd;k x;k gS fd vkilh [email protected] :i [email protected] ds ckn Jherh Qwy dqaoj dks ;kph la0&2 dh vksj ls fdjk;k olwyus ds fy;s vf/kd`r fd;k x;k A
25. The answer given to the 3rd question by the prescribed authority is as under:
foi{kh ds fo}ku vf/koDrk dk rdZ gS fd uohu vkVk pDdh okyk LFky dejk 13* x 8* ;kph la0&2 dks miyC/k gSA ;kph la0&2 dks vko';drk vR;f/kd LokHkkfod ,oa lnHkkoh Fkh rks og bldk iz;ksx vkus fuokl ds fy;s dj ldrk Fkk ;g Lohd`r rF; gS fd edku la0 [email protected]] gkylh jksM ds Hkw[k.M esa uohu vkVk pDdh okyk LFkku ;kph la0&2 dh iw=o/kw ds ikl gS ftlesa mlus vkuk ih-lh-vks- kksy fy;k gS rFkk ;g LFkku okn vof/k esa mls izkIr gqvk gS A ;g Lohd`r rF; gS fd bl lEcU/k esa igys ls Hkh vkVk pDdh Fkh A ;g LFkku vukokfld iz;ksx esa FkkA ;fn bl LFkku ij vc iqu% ih-lh-vks- dk O;kikj fd;k tk jgk gS rks og ,slh fLFkfr esa ugha gS ftlesa vkoklh; LFkku dks O;kikfjd iz;ksx ds fy;s ifjofrZr fd;k x;k gks A bl izdkj fLFkfr iwoZor gSaA ;g Lohd`r rF;
gS fd ;kph ds i= dk fookg okn vof/k esa gqvk gS vkSj vkokl ds lkFk&lkFk vkthfodk dekUr Hkh egRoiw.kZ ewyHkwr vko';drk gSA ;g fLFkfr ,slh ugha fd fjDr gqvk LFkku i= fdlh vU; O;fDr dks fdjk;s ij fn;k x;k ;k ,slh fLFkfr ifjfLFkfr esa pDdh okys LFkku ij ih0lh0vks pykus ds dkj.k ;kph la0&2 dh Hkw[k.M ij LFkku dh vko';drk dks lnHkoh u ekuus dk dksbZ vkSfpR; ugha gS A 1978 ,-vk-lh- 270 es ;g fof/k vo/kkfjr dh x;h gS fd mPp LFky ls ihfMr gksus ds dkj.k rFkk lh<+h;ka u p<+us dh gS fpfdRldh; lykg ds dkj.k Hkw[k.M esa miyC/k LFkku dk fueqZDr izkFkZuk i= Lohdkj fd;s tkus ;kX; gS rFkk vko';drk LokHkkfod ,oa ln~Hkkoh gS A**
26. The 4th question has been answered holding that:
vc ns[kuk ;g gS fd rqyukRed dfBukbZ ;kph dh gS vFkok foi{khx.k dh] izLrqr ekeys esa lk{; ls ;g Li"V gS fd oknxzLr nqdku ls vR;f/kd fudV edku la0 [email protected] esa jke n;ky tks fd foi{kh jke ujk;u ds pkpk Fks fdjk;snkj ds rFkk mudh e`R;q ds mijkar yxHkx 12 o"kZ ls ;g Hkkx jke ujk;u ds v/;klu ,oa iz;ksx esa gS A ,slh fLFkfr edku la0 [email protected] ds yS.MykMZ nqxkZ izlkn ds 'kiFk i= 109 ls Li"V gS A dfe'uj fjiksVZ es Hkh ;gh fLFkfr Li"V gS foi{kh ds fo}ku vf/koDrk dk rdZ gS fd bl LFkku dk mi;ksx xksnke ds :i esa gksrk gS A ;fn oknxzLr fdjk;snkjh okyk Hkkx fjDr djk fy;k x;k rks foi{kh dks fuokl ,oa O;kikj ds fy;s dksbZ LFkku ugha jg tk;sxk A ;g Lohd`r rF; gS fd okn xzLr fdjk;snkjh okyk dejk 16* x 6* dk gS rFkk blesa foi{kh dk O;kikj ,oa fulkl nksuksa gS ,slh ifjfLFkfr esa edku la0 [email protected] esa miyC/k LFkku dks iz;ksx foi{kh viuh bPNkuqlkj dj ldrk gS rFkk fueqZDr izkFkZuk i= Lohdkj gksus dh fLFkfr esa bldk iz;ksx dj ldrk gS A blds foijhr foi{kh dks vkoaVu esa ojh;rk izkIr gS tcfd yS.MykMZ dks ,slh dkbZ ojh;rk izkIr ugha gS A yS.MykMZ dk ;g ewyHkwr laoS/kkfud vf/kdkj gS fd og viuh lEifRr dk lqfo/kkiwoZd thou ;kiu ds fy;s miHkksx djs A rqyukRed dfBukbZ ;kph dh gS A mijksDr ppkZ ds vk/kkj ij eSa bl fu"d"kZ ij igwWapk gwWa fd ;kphx.k dk fueqZDr izkFkZuk i= Lohdkj fd;s tkus ;ksX; gS A
27. It appears that the petitioners wanted to delay hearing and as such concealing this fact filed Writ Petition No. 1461 of 2003, Jagdish Chandra v. District Judge and Ors., and obtained order dated 8.4.2003. It also appears that appeal was pending for the last 5 years and the petitioners have not been availed of the opportunities of arguments granted by the court below. If a party does not avail the opportunity granted by the Court further proceedings cannot be postponed ad infinitum. It is the duty of the Court not only to see that justice is done but also to ensure expeditious dispensation of justice within four corners of procedural law and principles of natural justice.
28. It is evident from the record that the petitioners did not file any application before the appellate court alongwith order of this Court dated 8.4.2003 and falsely asserted in paras 28 and 29 of the writ petition that an application alongwith this Court's order dated 8.4.2003, has been filed before the appellate court. After waiting till 3.27 p.m. on 10.4.2003, the tenant petitioners had been again permitted to file written arguments by 16.4.2003, when the judgment has been delivered by the appellate court with the following observations:
Various opportunities were given to the appellants to argue the appeal but they could not avail that opportunities to argue it although various opportunities were given with warning that no further time shall be allowed but even no argument was made by any of the appellants. The order sheet dated 10.4.2003 of file of Rent Appeal No. 78 of 1978 says that after waiting upto 3.27 p.m. none came to argue on behalf of the appellants. Opposite party has already filed written arguments and the case is fixed for 19.4.2003 for judgment. Appellants were to file written arguments till 16.4.2003, but till now the written arguments has not been filed by them.
Therefore, the appellate court has no option except to pass the judgment in the absence of the appellants on merits.
29. It has been admitted by the learned Counsel for the petitioners that on receipt of order dated 8.4.2003, opportunity was given to the petitioners for oral arguments in pursuance thereof. This fact finds support from the order of the learned court below in which this Court on 3.4.2003 fixed 10.4.2003 for arguments.
30. The submission that the accommodation admeasuring 13 feet x 18 feet in which Budhai Ram, the tenant had established his flour mill came in possession of respondent No. 3 is also incorrect. The possession of the said flour mill had been obtained by Sri Shyam Manohar Gupta, another son of Smt. Phool Kunwar. This fact has been also stated in para 18 of the counter-affidavit. The learned Counsel for the landlord-respondent contradicts the decision relied upon by the learned Counsel for the petitioners rendered in Rajeshwari (Smt.) v. Smt. Prema Agarwal 2005 (1) ARC 526 (supra). The submission that the accommodation admeasuring 13 feet x 18 feet in which Budhai Ram, the tenant had established his flour mill came in possession of respondent No, 3 is also incorrect. The possession of the said flour mill had been obtained by Sri Shyam Manohar Gupta, another son of Smt. Phool Kunwar. This fact has been also stated in para 18 of the counter-affidavit. The learned Counsel for the landlord-respondent contradicts the decision relied upon by the learned Counsel for the petitioners rendered in Rqjeshwari (Smt.) v. Smt. Prema Agarwal 2005 (1) ARC 526 (supra).
31. The argument of the learned Counsel for the tenant-petitioners that the prescribed authority did not give opportunity of oral hearing to the petitioner or has not complied with the remand order passed by the appellate court is therefore incorrect.
32. Both the courts below have concurrently held that the disputed accommodation on the ground floor was for residential purpose by the landlord Shyama Charan Gupta. In so far as comparative hardships is concerned, both the courts below have also concurrently held that the respondent-landlord shall suffer greater hardship in case the disputed accommodation is not released in his favour as during the pendency of the rent case and rent appeal the need of the landlord has been increased on account of the fact that the son of respondent No. 3 has got married on 16.7.1997 and their family members have increased and that after the marriage of his son, the daughter-in-law has opened a P.C.O. for livelihood.
33. It has also been held that the tenant-petitioners have sufficient means to shift their business in the alternative accommodation available to them at 50/253, Halst Road, adjacent to the accommodation in dispute where the petitioner Smt. Kesar Devi resides. This is also evident from the affidavit filed alongwith the writ petition. Moreover, there is nothing on record that the tenants have made any effort to search alternative accommodation.
34. Admittedly, the disputed accommodation in House No. 50/267, Halsi Road has been given for residential purpose and the petitioners are illegally using it for commercial purpose for carrying the business of sale of white-washing material etc. The tenants have occupied the accommodation by means of allotment order dated 17.7.1958 @ Rs. 30 per month before the purchase by the deceased Smt. Phool Kunwar. The tenants have failed to prove that the accommodation was let out for non-residential purpose. The allotment order has not been filed in the courts below in order to conceal the purpose for which the disputed accommodation had been let out initially.
35. Both the courts below have decided and held that the petitioner-tenants have acquired alternate accommodation in House No. 50/253, Halsi Road and when the present accommodation in dispute is residential then in view of Explanation to Section 21 of U. P. Act No. XIII of 1972, no objection to the release application can be entertained.
36. For the reasons stated above, no interference under Article 226 of the Constitution is called for by this Court with the Impugned orders. The writ petition is liable to be dismissed with exemplary costs as the petitioners have misused the process of law.
37. With aforesaid directions the writ petition is dismissed with costs assessed at Rs. 10,000. The petitioners shall handover peaceful possession of the accommodation in dispute to respondent No. 3 within two weeks from today and pay the costs also within the aforesaid period of one month. In default, they shall be evicted by necessary police force and the amount of costs shall be recovered as arrears of land revenue within one month thereafter and paid to the respondent No. 3 forthwith.