Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 1925 of 2018 Petitioner :- Subodh Respondent :- Special Judge And 4 Others Counsel for Petitioner :- Anshu Chaudhary
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Dharmpal Singh, learned Senior Advocate, assisted by Sri Anshu Chaudhary, learned counsel for the defendant-tenant/petitioner.
This petition has been filed praying for the following relief:
“(i) To call for records of the court below and set aside the impugned orders dated 31.01.2018 passed by Special Judge (Essential Commodities Act) in P.A. Appeal No.4 of 2017 (Subodh Vs. Dilawar Ali and others) and order dated 16.08.2017 passed by the Prescribed Authority/Additional Chief Judicial Magistrate, Court No.2 Eawah in P.A. Case No.08 of 2013 (Dilawar Ali and others Vs. Narendra and another) (ii) to issue a order or direction to the respondents nos. 3 to 5 not to interfere in the peace full possession of the shop in dispute situate in Mohalla Ramganj, Tahsil and District Etawah.”
Learned counsel for the defendant-tenant/petitioner submits that the plaintiff-landlords/respondents have a shop at Maksudpura in which the plaintiff-respondent nos. 4 and 5 are running a hair cutting Saloon. At the stage of the appeal certain photographs were filed in additional evidence alongwith an application but the application was rejected by the appellate court vide order dated 16.1.2018. The rejection of the application for additional evidence was wholly arbitrary and illegal. If those evidences would have been taken into consideration then the bonafide need as set up by the plaintiff-landlords, could not have been accepted. He, therefore, submits that both the impugned judgments are erroneous and, therefore, deserve to be set aside.
I have carefully considered the submissions of learned counsel for the defendant-tenant/petitioner.
Briefly stated facts of the present case are that the disputed shop measuring 8' x 8' is situate in the building at Mohalla Ramganj, City Etawah, which was jointly purchased by Sri Abdul Gani and his brother Abdul Majeed by registered sale deed dated 26.7.1977. Thereafter the partition took place between Abdul Gani and Abdul Majeed in which the disputed shop fell in the share of plaintiff-respondent no.3. In the said shop the defendant- petitioner is a tenant. The plaintiff-respondent no.3 has five sons. His sons Firdaus and Sarfaraz are Barber. The landlord-respondent no.3, filed an application under Section 21(1)(a) of U.P. Act 13 of 1972 being P.A. Case No.08 of 2013, setting up the bonafide need for start of hair cutting Saloon by his unemployed sons, namely, Firdaus and Sarfaraz, who are plaintiff- respondent nos. 4 and 5. It was also stated by the plaintiff-respondent no.3 that his all the five sons are unemployed. The plaintiffs further stated that in the absence of appropriate place for shop, the plaintiff-respondent nos. 4 and 5 are not able to earn money as per their capacity. The pleadings were exchanged and evidences were led by the parties. The P.A. Case was decreed by judgment dated 16.8.2017, passed by the Prescribed Authority/Additional Chief Judicial Magistrate, Court No.2 Etawah. The P.A. Appeal No.04 of 2017, filed by the defendant-tenant/petitioner was dismissed by the impugned judgment dated 31.1.2018, passed by the Special Judge, E.C. Act, Etawah.
The concurrent findings of fact based on consideration of relevant evidences on record have been recorded by the courts below that the plaintiff-landlords are the owners and landlord of the disputed shop and they have bonafide need of the disputed shop. These being the findings of fact, can not be interfered with in jurisdiction under Article 227 of the Constitution of India. The alleged application for additional evidence filed by the defendant-tenant/petitioner before the appellate court was rejected by an order dated 16.1.2018. This order is also not under challenge in the present petition. The evidences as discussed in the impugned judgments leaves no manner of doubt that the courts below have lawfully held that the plaintiffs- landlords/respondents are in bonafide need of the disputed shop. Both the courts below have discussed in detail the evidences led by the parties so as to reach to the conclusion of bonafide need.I do not find any perversity in the findings of fact recorded by the courts below.
In view of the above discussion, I do not find any merit in this petition.
Consequently, the petition fails and is hereby dismissed.
After this order was dictated in open court, learned counsel for the defendant-tenant/petitioner states on instructions that six months time may be granted to the defendant-tenant/petitioner to vacate the disputed shop and to hand over its vacant and peaceful possession to the plaintiffs- landlords on or before 30.9.2018. He further states that the defendant- tenant/petitioner is ready to submit an undertaking on oath to the aforesaid effect and is also ready to deposit a sum of Rs.10,000/- for use and occupation of the disputed shop for the period from today till 30.9.2018.
In view of the aforesaid, it is provided that in the event, the defendant- tenant/petitioner submits an undertaking on oath before the Court below/Prescribed Authority within four weeks from today and a sum of Rs.10,000/- is deposited within the same period then in that event, no coercive action shall be taken against the defendant-tenant/petitioner for dispossessing him till 30.9.2018. In the event any of the conditions, as aforementioned, are not complied with by the defendant-tenant/petitioner then the protection given above, shall automatically stand vacated and the plaintiffs-landlords/respondents shall be entitled to initiate appropriate proceeding against the defendant-tenant/petitioner. It is further provided that in the event the aforesaid conditions are complied with but the disputed shop is not vacated and its peaceful and vacant possession is not handed over to the applicant-landlords/respondents on or before 30.9.2018, then in that event, the plaintiffs-landlords/respondents shall be entitled to initiate appropriate proceedings against the defendant-tenant/petitioner including the proceedings for contempt.
Order Date :- 29.3.2018/vkg