Heard Sri Shashi Nandan, learned Senior Counsel assisted by Mohd. Sarwar Khan, learned counsel appearing for the petitioners-tenants and Sri D.P. Singh, learned Senior Counsel assisted by Sri Dharmendra Kumar Dwivedi, learned counsel for the respondents-landlords and perused the record.
Present petition has been filed challenging the judgement and order dated 30.5.2020 passed by the Additional District Judge/Special Judge (EC Act), Jaunpur in Rent Civil Appeal No. 1 of 2017 (Sri Kant & other vs. Mool Chandra (died) & others) and judgement and order dated 3.4.2017 passed by the Civil Judge (Sr. Division)/Prescribed Authority, Jaunpur in P.A. Case No. 16 of 1984 (Deep Chandra & other vs. Pursottam Das & others).
Release application was filed in the year 1984, which was allowed by the trial court vide order dated 3.4.2017, against which the appeal was filed, which has been dismissed by the impugned order dated 30.5.2020. The trial court framed six issues: first, whether there is tenant-landlord relationship between the parties; second, whether the application is liable to be rejected for non-compliance of Rule 6 read with Order 7 Rule 1 (b) CPC; third, whether the application is liable to be rejected on the ground of non-impleadment of sub tenants; fourth, whether the need of landlords on the shop in question is bona fide and genuine; fifth, is about comparative hardship; and sixth, relief, if any.
On issue no. 1 it was found that there is tenant-landlord relationship between the parties. On issue no. 2 it was found that the release application was not liable to be rejected for non-compliance of Rule 6 read with Order 7 Rule 1 (b) CPC. On issue no. 3 it was found that it is not necessary to implead sub-tenants in the release application and therefore, the application is not liable to be rejected. On issue no. 4 it was found that the need of the applicants is bona fide and genuine and enough property including the shops is available with the tenants and it was also found that no effort was made by the tenants to search out any other alternative accommodation, therefore, the need is bona fide in nature. On issue no. 5 relating to comparative hardship, it was found that no effort was made by the tenants to search out any other alternative shop during the pendency of litigation. Ultimately the shop in question was released in favour of the applicants-landlords. Thereafter, appeal filed by the tenants was dismissed upholding the findings of the trial court. Perusal of the appellate court's judgement reflects that the evidence has been extensively considered by the lower appellate court also.
Challenging the impugned orders, submission of Sri Shashi Nandan, learned Senior Counsel is that bona fide need for four applicants was alleged, out of which applicants no. 1, 2 and 4 were claimed to be unemployed and it was claimed that the applicant no. 3 was running a tea shop at chabutara and therefore, need is bona fide for the shop in question whereas the applicants no. 1 and 2 have died. He further submits that during pendency of release application the landlords have purchased properties and for this reason they filed additional written statement. Drawing attention to paragraph 5 of the additional written statement, it was submitted that specific assertion has been made that two new shops are available with the tenants. It was pointed out that the application for local inspection was filed by the tenants, which was illegally rejected by the trial Court and ultimately, by drawing attention to judgement and order dated 1.10.2015 passed in Writ-A No. 56071 of 2015 (Sri Kant vs. Deep Chand and 20 others), it was pointed out that local inspection was permitted by this Court and pursuant to that Advocate Commissioner was appointed who submitted his report dated 21.11.2015, which clearly indicates that on the area marked A, B, C, D, A Anil Kumar s/o late Mool Chandra is having a dairy shop and on the area marked as E, F, G, H, I, J, E Vivek Kumar s/o late Moold Chandra is carrying a tea leaves (chai ki patti) shop. Submission is that their need was not set up in the release application. It was further submitted that the applicant no. 1 died issueless and Mool Chand also died during pendency of appeal and their sons are doing business and in the release application need was not set up by them. It was further submitted that several shops including subsequently purchased shops are available with the landlords and that no finding has been recorded by the courts below in this regard. Submission is that the finding recorded by the courts below that the landlord is at liberty to choose shops of his own choice, is illegal and that the need of Anil Kumar and Vivek Kumar s/o Mool Chand was not set up and thus, the need is not bona fide and genuine.
It was further submitted that the reasons given for holding the bona fide need of the landlords are incorrect and the burden was on the landlords to prove that newly acquired accommodation is not sufficient. He further submitted that during pendency of release application Chabutara which was allegedly being used for running tea shop was also converted into pucca shop and therefore, an application for appointment of Advocate Commissioner was also filed, which was illegally rejected by the trial Court, which was challenged before this Court by filing Writ-A No. 2381 of 2017. The said writ petition was disposed of with liberty to the petitioner to challenge the correctness of the interlocutory order passed by the trial court while filing the appeal. Submission is that the said question is still available with the applicants. Attention was also drawn to page 192 of the paper book to state that pucca shop with shutter is under occupation for running tea shop. He further pointed out that in fact the applicants have applied for allotment of shop before the Rent Control authority, however, the said application was rejected that no shop is available for allotment. On pointed query learned Senior Counsel only this much submits that the tenants have made several efforts to search out alternative accommodation and therefore, finding recorded by the trial court that no effort was made to search out any other alternative accommodation on issue of comparative hardship, is incorrect. No further arguments were advanced by the learned Senior Counsel on the issue of comparative hardship, however, it was submitted that since need is not genuine and bona fide, the question of comparative hardship does not arise.
Learned counsel for the petitioners has placed reliance on a judgement of this Court rendered in the case of Santosh Kumar Sharma vs. VIth Additional District Judge, Saharanpur and others, 2006 (1) ARC 397 to contend that if other property is available, need of the landlord is not bona fide.
Per contra, Sri D.P. Singh, learned Senior Counsel for the respondents-landlords submits that the release application was filed in the year 1984 for a shop measuring 8x10 sq. ft. There had been four applicants, out of which two applicants died. He submits that it is not in dispute that applicant no. 3 has a tea shop and the need of applicants no. 3 and 4, under any circumstances, is still existing. He submits that with the passage of time the family has increased and two applicants have also died. Since two sons of late Mool Chandra are in occupation of two shops, therefore, it is also clear that no shop is vacant for meeting out the need of the applicants. He further pointed out that finding has been recorded that the shop, which has been shown in photograph at page 192 of the paper book, has been constructed on chabutara, can be removed by the development authority at any point of time. Submission, therefore, is that the need of the landlords is bona fide and genuine.
Insofar as the comparative hardship is concerned, attention was drawn to internal pages 14 and 15 of the appellate court's order wherein it has been pointed out that large number of huge property including shops are available to the petitioners. It is admitted to the petitioners that in house no. 181 owned by them there are seven shops and they are in possession of the tenants. Thus, it is clear that huge property is available with the tenants. He has also drawn attention to the judgement of this Court in Writ-A No. 15191 of 2019 (Sri Kant vs. Mool Chand (dead) and 18 others). It was submitted that against the rejection of application no. 380 Ga and 384 Ga moved by the applicant, which was rejected by the prescribed authority vide order dated 5.1.2017, an appeal was filed which too was dismissed. Thereafter the writ petition no. 2381 of 2017 challenging the same was filed, which was disposed of without interfering in the order and leaving it open to the tenants to challenge the correctness of the order before the authority. The Prescribed Authority allowed the release application on 3.4.2017 releasing the disputed shop. Again, an application no. 46 Ga for the same purpose was moved before the lower appellate court, which was rejected. These orders were under challenge in writ petition no. 15191 of 2019, which was dismissed vide judgement dated 25.9.2019. While dismissing the writ petition, an exemplary cost of Rs. 50,000/- was imposed for abusing the process of law for delaying the disposal of the appeal and for filing the frivolous petition and this order has become final and cost had been paid. Submission, therefore, is that the release application was filed in the year 1984 and its disposal is being delayed on one ground or the other. He, thus, submits that no interference is warranted in the concurrent findings recorded by the courts below.
I have considered the rival submissions and perused the record.
On perusal of record, I find that concurrent finding has been recorded by the courts below. Release application was filed long back in the year 1984. During pendency of release application applicant no. 1-Deep Chandra died issueless and applicant no. 2-Mool Chandra also died leaving behind two sons, namely, Anil Kumar and Vivek Kumar who are in occupation of two different shops. The concurrent finding recorded by the courts below could not be dislodged that no vacant shop is in possession of landlords. Moreover, the need of applicants no. 3 and 4 continue to exist. That apart, a finding has been recorded that in fact a tea shop has been constructed on a chabutara, which can be demolished by the development authority at any point of time. Therefore, it cannot be said that small old tea shop, which appears to be a shop not in a very good condition as reflected from the photograph annexed at page 192 of the paper book, cannot be said to be sufficient space available as reflected from the concurrent finding. That apart, huge number of property are available with the tenant who appears to be jewellers and most of his family members are staying outside. It is not in dispute that the tenants themselves have moved application on the ground that sub tenants have not been impleaded in the release application and therefore, the release application is bad for non-joinder of necessary party. This admitted fact clearly reflects that their (tenants) need of the shop in question is, in fact, not at all bona fide and genuine. It has come on record that most of the family members are living outside. Seven shops as landlord were available with the tenants, which are in possession of other persons. From 1984 to 2017, no effort was made to get the shop owned by the tenants vacated and no effort was made to search out the alternative accommodation. It is only when the release application was allowed, an application for allotment of a shop in a particular locality i.e. sarrafa bazar was moved before the Rent Control Authority. This application was rejected on the ground that shop of this nature in particular locality is not available. It is also clear that no effort or attempt was made during the pendency of release application. Any subsequent attempt in the facts and circumstances of the case would be of no consequence and that too when allotment of the shop in a particular locality was prayed, where no shop was available.
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.
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.
However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the tenant-revisionist before the Court below, it is provided that:
(1) The tenant-revisionist shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.4.2021.
(2) The tenant-revisionist 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-revisionist 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-revisionist shall pay damages @ Rs. 5,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.4.2021 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-revisionist 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-revisionist 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 shop is not vacated as per the undertaking given by the revisionist, he shall also be liable for contempt.
Order Date :- 27.1.2021/AA