1. Heard Sri Tarun Varma, learned counsel for the plaintiff-landlord/ petitioners and Sri Nanhe Lal Tripathi, learned counsel for the defendant-tenant/ respondent.
2. Briefly stated facts of the present case are that the petitioner Nos.1 and 2 are the owner and landlord of House No.C/126/82 situate in Mohalla Mediyagarh, Asuran City Gorakhpur. A major portion of the ground floor is occupied by the rspondent as tenant. A partition took place between the mother of the plaintiff-landlady/ petitioner No.1 and the plaintiff-landlord/ petitioner No.2 with regard to the aforesaid house and the partition Suit No.491 of 1986 (Jokhan vs. Jiyani) was decreed by the court of Civil Judge-II, Gorakhpur by decree dated 17.04.1997. In terms of the aforesaid decree, the plaintiff-landlady/ petitioner No.1 got half portion of the house (northern side) while the plaintiff-landlord/ petitioner No.2 got half portion of the house (southern side).
3. The plaintiff-landlady/ petitioner No.1 has two sons Sanjay and Amardeep and four daughters namely Manju, Anju, Sangeeta and Soni. Both the sons of the plaintiff-landlady/ petitioner No.1 were unemployed.
4. The plaintiff-landlord/ petitioner No.2 Jokhan has three sons, namely Panne Lal, Surendra and Rajan. He has two daughters Suman and Pratima. Panne Lal was major at the time of filing of the release application dated 17.08.2004 while his other two sons Surendra and Rajan were of 16 years and 14 years respectively at that time. Since the aforesaid two sons of plaintiff-landlady/ petitioner No.1 and one major son of the plaintiff-landlord/ petitioner No.2 were unemployed, therefore, on the ground of bona fide need of the disputed shop falling in their respective shares, they filed a release application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the U.P. Act 13 of 1972'). In the release application, the plaintiff-landlady/ petitioner No.1 has also stated that she has no staircase to reach to the first floor of the house and presently she has installed an iron staircase on roadside patri. She stated that if the disputed shop is vacated, then part portion thereof shall be used for construction of staircase for access to the first floor. On these facts, the plaintiff-petitioners filed P.A. Case No.16 of 2004 (Smt. Vishuni Devi and Jokhan Yadav vs. Raj Naryan Pandey). Parties led their evidences. Considering the pleadings and evidences on record, the aforesaid P.A. Case No.16 of 2004 was decreed by the Prescribed Authority/ Judge Small Cause Court, Gorakhpur by judgment dated 24.03.2007. Aggrieved with this judgment, the defendant-tenant/ respondent filed a Rent Appeal No.7 of 2007 (Raj Narayan Pandey vs. Smt. Vishuni and Jokhan Yadav), which was allowed by the impugned judgment dated 02.05.2009 passed by the Special Judge (Anti Corruption), Gorakhpur, whereby the judgment passed by the Prescribed Authority was set aside and the P.A. Case No.16 of 2004 was dismissed. Aggrieved with the judgment of the appellate court, the plaintiffs-landlords/ petitioners have filed the present writ petition.
5. Learned counsel for the plaintiff-petitioners submits that the impugned judgment in Rent Appeal No.7 of 2007 has been passed by the appellate court without considering evidences on record and treating the written statement of the defendant-tenant/ respondent as complete truth. The appellate court below has not only misread the evidences but also ignored relevant evidences. Therefore, the findings recorded by the appellate court are wholly perverse and deserve to be set aside and judgment passed by the Prescribed Authority in P.A. Case No.16 of 2004 deserves to be restored.
6. Learned counsel for the defendant-tenant/ respondent supports the impugned judgment in Rent Appeal No.7 of 2007.
7. I have carefully considered the submissions of the learned counsels for the parties.
8. Perusal of the impugned judgment in Rent Appeal No.7 of 2007 dated 02.05.2009 passed by the Special Judge (Anti Corruption), Gorakhpur shows that it has been passed merely on the basis of written statement filed by the defendant-tenant/ respondent. The appellate court completely ignored several relevant evidences on record. In paragraph-6 of his written statement, the defendant-tenant/ respondent has described by a map, the ground floor portion of the disputed house as occupied by him and the plaintiffs-landlords/ petitioners. This description was completely denied by the plaintiffs-landlords/ petitioners by affidavit of Smt. Vishuni Devi (plaintiff No.1) filed in April, 2006. In paragraphs-11 and 12 of the affidavit, the plaintiff has stated that on the back side of the shop of the defendant-tenant/ respondent, there are two rooms in occupation of the plaintiff No.1. In one room, there is toilet and tank, and an electric motor is installed and in the other room, the plaintiff No.1 keeps her household goods. She further stated that in the back portion of the disputed shop, there is one room accommodation in occupation of the plaintiff No.2-Jokhan, where there is toilet. In paragraphs-7 and 8 of her aforesaid evidence, she stated that she has no staircase to reach to the first floor portion of her house and, therefore, she has installed an iron staircase on roadside patri, which is very inconvenient and is removed from time to time by Nagar Nigam. In paragraph-10, she stated that the affidavit of the defendant-tenant/ respondent is false and unbelievable. In paragraphs-13 and 14, she denied the allegation of land to be in village Semra in the name of his sons and existence of tube-well and bagicha. In paragraph-16, she completely denied carrying on business of dairy by her husband and two sons. In paragraph-19, she specifically denied that the sons are carrying on business in the western portion of the house. In paragraph-20, she denied the allegation of the defendant-tenant/ respondent that the plaintiff No.2 earns Rs.500/- per day by allowing vegetable vendors to keep their vegetables in the ground-floor portion in the night.
9. The plaintiff-witness, namely Sri Ashwini Kumar Jaiswal in his evidence has supported the case of the plaintiffs that their sons are unemployed and they are in urgent need of the disputed shop for setting up business to earn livelihood. He also stated that iron staircase has been installed by the plaintiff No.1 over the Nagar Nigam patri to reach to her first floor portion. The plaintiff No.2 has also filed his evidence in which he completely denied carrying on dairy business by the plaintiff No.1 and her husband. He stated that sons are educated unemployed. Another plaintiff witness, namely Bhola stated in his evidence dated 06.11.2006 that in the portion of the plaintiff Jokhan on the ground floor, there is one room in which latrine has been constructed and it is not a shop. He stated in paragraph-5 that the ground-floor portion in possession of the plaintiff No.1 Vishuni, consists of two rooms and in one room, there is latrine, tank and electric water pump while in the other room, the plaintiff No.1 keeps her household goods and both the plaintiffs have not let out any portion in their possession.
10. In paragraph-5 of his affidavit dated 29.04.2006, the defendant-tenant/ respondent has stated that the plaintiff No.2 Jokhan earns about Rs.500/- per day by allowing vegetable vendors to keep their vegetable in the night. The defendant witness Sanjay Kumar in his evidence (affidavit dated 27.09.2006) has stated the earning of Rs.60/- per day of the plaintiff No.2 Jokhan by allowing vegetable vendors to keep their vegetables in night in his portion. Both the affidavits are at great variance in so far as the alleged earning is concerned. That apart neither any specific evidence of keeping of vegetable could be led by the tenant-respondent nor even any particulars or names of any such vendors could be disclosed. The allegation made in the affidavits were vague.
11. The defendant-tenant/ respondent could not lead any evidence to establish that the plaintiffs' sons are employed or that in the ground floor portion on the back side of the disputed shop occupied by the plaintiffs, there is no latrine as stated by the plaintiffs. Even the map as sketched by the defendant-tenant/ respondent in paragraph No.4 of his written statement, shows that major portion of the ground floor is occupied by the tenant-respondent. The defendant-tenant/ respondent could not prove by any evidence that the plaintiff-landlady/ petitioner No.1 or her husband runs a dairy. The plaintiffs have proved their bona fide need. No evidence could be led by the defendant-tenant/ respondent which may indicate that either the plaintiffs are not in bona fide need of the disputed shops or that their sons are employed.
12. The appellate court has firstly entered into controversy with regard to the portion received by the plaintiffs in partition suit. This was not a matter of concern of the appellate court while deciding the rent appeal arising from a rent case under U.P. Act 13 of 1972, particularly when it was undisputed that the plaintiffs are the owner and landlord of the disputed shop. The finding of the appellate court that the plaintiff No.1 and the plaintiff No.2 have no need for the disputed shop, is wholly perverse. The finding that there is no bona fide need of the plaintiff Nos.1 and 2 for the disputed shop, has been recorded by the appellate court in complete ignorance of the evidences as discussed above in Paras-8, 9, 10 and 11, or it is based on misreading of evidences. Therefore, the findings recorded by the Appellate Court on the point of bona fide need, are patently perverse. The Prescribed Authority has passed the judgment dated 24.03.2007 in P.A. Case No.16 of 2004 after well considering the entire evidences on record. Therefore, the findings of the Prescribed Authority on the point of bona fide need of the disputed shop and comparative hardship could not have been set aside by the appellate court.
13. For all the reasons afore-stated, the writ petition is allowed. The impugned judgment dated 02.05.2009 in Rent Appeal No.7 of 2007 passed by the Special Judge (Anti Corruption), Gorakhpur, cannot be sustained and is hereby set aside. The judgment dated 24.03.2007 in P.A. Case No.16 of 2004 (Vishuni and another vs. Raj Narayan Pandey) passed by the Prescribed Authority/ Judge Small Cause Court, Gorakhpur is upheld.
Order Date :- 26.08.2019 NLY