Court No. - 05
Case :- WRIT - A No. - 13368 of 2019 Petitioner :- Vishwanath Gupta Respondent :- District Judge, Banda And 2 Others Counsel for Petitioner :- Nand Kishor Mishra,Deepak Kumar Jaiswal Counsel for Respondent :- Ram Kishore Pandey,Himanshu Raghav Pandey
Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Deepak Kumar Jaiswal, learned counsel for the defendant-tenant/ petitioner and Sri R.K. Pandey, learned counsel for the plaintiff-landlord/ respondent No.3.
2. This writ petition has been filed praying for the following relief:
"(i) issue a writ, order or direction in the nature of Certiorari and quash the order dated 23.07.2019 (Annexure-8) passed by District Judge, Banda and order dated 12.04.2019 (Annexure-6) passed by Civil Judge (SD)/ Prescribed Authority Banda.
(ii) issue a writ, order or direction in the nature of Mandamus commanding the respondent No.2 to reconsider the Rent Case No.8 of 2014; Jugul Kishor Modi Vs Vishwanath Gupta and decide on merit afresh on the point of bonafide need of respondent and hardship of the petitioner."
3. Briefly stated facts of the present case are that undisputedly the plaintiff/ respondent No.3 is the owner and landlord of the disputed shop, of which the defendant-tenant/ petitioner was tenant. On the ground of bonafide need, the plaintiff-landlord/ respondent No.3 filed Rent Case No.08 of 2014 (Jugul Kishor Modi vs. Vishwanath Gupta), which was decreed by judgment and decree dated 12.04.2019 passed by the Civil Judge (Senior Division)/ Prescribed Authority, Banda. Aggrieved with this judgment, the defendant- tenant/ petitioner filed Rent Appeal No.03 of 2019 (Vishwanath Gupta vs. Jugul Kishor Modi), which has been dismissed by the impugned judgment dated 23.07.2019 passed by the District Judge, Banda. Aggrieved with these two judgements, the defendant-tenant/ petitioner has filed the present writ petition.
4. Learned counsel for the defendant-tenant/ petitioner submits that both the courts below have not recorded any finding on the point of comparative hardship and, therefore, the impugned judgments cannot be sustained and deserve to be quashed.
5. No other argument has been made before me.
6. Learned counsel for the plaintiff-landlord/ respondent No.3 supports the impugned judgment.
7. I have carefully considered the submissions of learned counsels for the parties.
8. Undisputedly, the plaintiff/ respondent No.3 is the owner and landlord of the disputed shop. He has three sons, namely Abhishek Modi, Karan Modi and Aniket Modi, who are unemployed. The defendant-tenant/ petitioner has completely failed to establish that the plaintiff-landlord/ respondent No.3 has any suitable accommodation in vacant state for setting up business for his sons. Both the courts below have recorded concurrent finding of fact based on consideration of relevant evidences on record that the plaintiff-landlord/ respondent No.3 has the bona fide need for the disputed shop. Neither any perversity could be pointed out nor learned counsel for the defendant-tenant/ petitioner has argued before me that the aforesaid finding of fact suffers from any perversity. Therefore, this finding of fact cannot be interfered with in writ jurisdiction under Article 226 of the Constitution of India.
9. The submission of learned counsel for the defendant-tenant/ petitioner that both the courts below have not recorded any finding on the point of comparative hardship is wholly misconceived. Perusal of the impugned judgment passed by the Prescribed Authority shows that although issue was not specifically framed on the point of comparative hardship, yet the discussion made in the impugned judgment clearly shows that the Prescribed Authority has considered the fact that all the three sons of the plaintiff-landlord/ resplendent No.3 are unemployed while the defendant-tenant/ petitioner has purchased a shop in Mohalla New Market, Banda in the name of his wife in which according to the defendant-tenant/ petitioner, his two sons namely Rohit Gupta and Rahul Gupta are carrying on business. The Prescribed Authority also found that the contention of the defendant-tenant/ petitioner that he has no accommodation to shift his business is not acceptable.
10. The Appellate Court specifically framed point No.(iii) whether the plaintiff (landlord) will suffer comparative hardship than the defendant (tenant). This point has been considered along with the point No.(ii) regarding bona fide need of the disputed premises comparative to the defendant (tenant). At internal pages-10 and 11 of the impugned judgment, the Appellant Court dealt with the comparative bona fide need and hardship and observed that admittedly the plaintiff-landlord has only one third share in Modi Lodge. The defendant has alternative shop in the name of his wife Smt. Nirmla Gupta. The Appellate Court observed that the defendant may shift his business in the aforesaid alternative place without unavoidable hardship and there was sufficient time to shift the business but he has not utilized the time for shifting the business to the alternative place for reason best known to him. The Appellate Court further observed that the plaintiff has to establish his three sons into business. It has further been observed that there is comparative hardship to the plaintiff due to occupying the disputed shop by the plaintiff and the plaintiff has proved his bona fide need for the disputed shop to establish the business of his sons.
11. Neither it has been argued before me that the findings recorded suffers from any perversity nor any perversity could be pointed by learned counsel for the petitioner in the aforesaid findings of fact. Therefore, these findings of fact cannot be interfered with in writ jurisdiction under Article 226 of the Constitution of India.
12. For all the reasons afore-stated, I do not find any merit in this writ petition. Consequently, the writ petition fails and is hereby dismissed.
13. After this judgment was dictated in open court, learned counsel for the defendant-tenant/ petitioner states on instructions of the defendant-tenant/ petitioner that the defendant-tenant/ petitioner undertakes to vacate the disputed shop and to handover its vacant and peaceful possession to the respondents-plaintiffs/ landlords on or before 30.11.2019 and shall deposit the entire decreetal amount and additionally a sum of Rs.6,000/- for use and occupation of the disputed shop till 30.11.2019 and in that event, he may not be ousted from the disputed shop till 30.11.2019. He further states on instructions that the aforesaid decreetal amount shall be deposited by the petitioner within four weeks from today and undertaking shall also be filed within the same period before the court below.
14. Learned counsel for the plaintiff-landlord/ respondent No.3 has no objection to the aforesaid undertaking of the defendant-tenant/ petitioner but submits that in the event, the undertaking as given before this court is not complied with within the stipulated time, then the protection may not be available to the defendant-tenant/ petitioner and in the event, he does not vacate and handover vacant and peaceful possession of the disputed shop to the plaintiff-landlord/ respondent No.3, then for every day of delay in vacating and handing over possession of the disputed shop, the defendant-tenant/ petitioner may be directed to pay an additional sum of Rs.1,000/- per day.
15. Learned counsel for the defendant-tenant/ petitioner agrees to the aforesaid terms stated by learned counsel for the plaintiff- landlord/ respondent No.3.
16. In view of the undertaking given by the defendant-tenant/ petitioner before this court through his counsel and the terms and conditions stated by learned counsel for the plaintiff-landlord/ respondent No.3 and accepted by the defendant-tenant/ petitioner, it is provided, as under:
(i) The defendant-tenant/ petitioner shall deposit the entire decreetal amount and an additional sum of Rs.6,000/- with the court below within four weeks from today.
(ii) Within the same period of four weeks, he shall submit his undertaking before the court below to the effect as recorded above.
(iii) If the undertaking is submitted and the amount as aforesaid are deposited then, the defendant-tenant/ petitioner shall not be evicted from the disputed shop till 30.11.2019.
(iv) On or before 30.11.2019, the defendant-tenant/ petitioner shall vacate and shall handover vacant and peaceful possession of the disputed shop to the plaintiff-landlord/ respondent. In the event, he does not vacate and does not handover vacant and peaceful possession of the disputed shop to the plaintiff-landlord/ respondent No.3 on or before 30.11.2019, then the defendant-tenant/ petitioner apart from other consequences which may follow, shall pay an additional amount of Rs.1,000/- per day for every day of delay in vacating and handing over vacant and peaceful possession of the disputed shop to the plaintiff-landlord/ respondent No.3.
(v) In the event, the undertaking as aforesaid is not given and the decreetal and additional amount as aforesaid are not deposited by the defendant-tenant/ petitioner within the stipulated period of four weeks as aforesaid, the protection given to him under this order shall automatically stand vacated.
(vi) The plaintiff-landlord/ respondent No.3 shall be at liberty to withdraw the amount to be deposited by the defendant-tenant/ petitioner with the court below.
Order Date :- 22.08.2019 NLY