Kumar Kartikeya Sharma vs Additional District Judge Court ...
2013 Latest Caselaw 6199 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(judgement reserved on 23.9.2013)
 
(judgement delivered on 01.10.2013)
 
Court No. - 21
 

 
Case :- RENT CONTROL No. - 118 of 2013
 

 
Petitioner :- Kumar Kartikeya Sharma
 
Respondent :- Additional District Judge Court No.Ix, Lucknow & Others
 
Counsel for Petitioner :- Dr. Manoj Dubey,Arvind Rajdan
 
Counsel for Respondent :- C.S.C.,Manish Kumar,Ram Kumar Singh
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard Dr. Manoj Dubey and Shri Arvind Razdan, learned counsel for the petitioner and shri J.N. Mathur, learned senior counsel assisted by Shri Ram Kumar Singh, learned counsel for landlord respondent no.3 Girish Chopra. In this writ petition on 20.9.2013 and 23.9.2013 following orders were passed.

"20.9.2013 Dr. Manoj Dubey, learned counsel sought permission of the court at 10.15 A.M. for taking up this case today due to urgency and stated that he would be filing writ petition in the office within few minutes. It was orally directed that the case should be sent by the office today. Office has sent the file at about 4.15 P.M. Learned counsel for petitioner states that he contacted Sri Ram Kumar Singh, learned counsel, who had filed the caveat but he told him that he had left the court premises and instructed him that he could give copy of the writ petition to Sri M.K. Dixit, learned counsel hence he gave the copy to Sri M.K. Dixit. Under High Court Rules even after the court time a Judge sitting in the jurisdiction to which the petition relates may entertain the petition.

Learned counsel states that after dismissal of the revision (Rent Revision No.10 of 2012) on 17.09.2013 by A.D.J., Court No.9, Lucknow, parvana dakhal was at once issued and a lot of police force has been deployed and at any moment petitioner may be dispossessed. This haste appears to be unusual. Accordingly, put up as fresh on 23.09.2013.

Until 23.09.2013, dispossession shall not take place. Learned counsel for petitioner shall inform Sri Ram Kumar, learned counsel for landlord respondent No.3 about this order on telephone as well as through SMS as the mobile number of the learned counsel for caveator is mentioned in the writ petition itself.

23.09.2013 As per directions given in the morning before lunch when matter was taken up, Sri Vinod Kumar, Additional City Magistrate-I, Lucknow is present. He was called to ascertain the reason for undue haste in delivery of possession.

Heard Sri Manoj Dubey and Sri Arvind Rajdan, learned counsel for petitioner and Sri J.N. Mathur, learned senior counsel assisted by Sri Ram Kumar Singh, learned counsel for landlord respondent.

Order reserved.

Put up for delivery of order on 01.10.2013.

The key of the house in dispute shall be handed over to the D.M., Lucknow through Sri Vinay Bhushan, learned standing counsel today and the house shall remain in custody of the D.M. till 01.10.2013. Order regarding delivery of possession would be passed along with the final order. "

Petitioner is/was tenant of the house in dispute. Number of the house in dispute is 121/3 Caper Road Lalbagh, Lucknow, consisting of 9 rooms, Drawing Room, 2 kitchens, 2 bathrooms. Landlord respondent no.3 filed release application under section 16 (1) (b) of U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act no.13 of 1972) before the R.C. & E.O./ Additional City Magistrate I Lucknow. Copy of the said application dated 16.8.2010 is annexure 2 to the writ petition. It was stated in the said application that as wife of the tenant had taken another house (no.22-D, Avas Vikas Colony, Mall Avenue, Lucknow) on rent and both husband and wife were residing in the said house, hence, house in dispute was legally (deemed) vacant. It was further stated that the landlord required, the house, for his personal need bonafidely. The case was registered as case no.20 of 2012.

The R.C. and E.O. through order dated 25.10.2012 declared the house in dispute as vacant. Through order dated 07.12.2012 objections of the tenant petitioner against the vacancy declaration order were rejected and the house in dispute was released in favour of the landlord. Thereafter, petitioner filed Rent Revision no.10 of 2012, Kumar Kartikeya Sharma vs. Girish Chopra and another.

Against interim orders passed in the revision twice the matter was brought to this court through writ petitions. The Revisional court had granted the stay order on the condition of payment of Rs.5,000/- per month rent as against the agreed rent of Rs.1,000/- per month.

Ultimately, revision was dismissed on 17.9.2013 by A.D.J. Court no.9 Lucknow, hence, this writ petition.

Deemed vacancy is provided under section 12 of U.P. Act No.13 of 1972. Section 12(1) and (3) are quoted below :-

(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if -

(a) he has substantially removed his effects therefrom, or

(b) he has allowed it to be occupied by any person who is not a member or his family, or

(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.

(3) In case of a residential building, if the tenant or any memberof his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy ;

Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date.

(a) a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee;

(b) the expression "any member of family", in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant.

It is admitted to the tenant petitioner that his wife has taken another house on rent. However, the case of the petitioner was that the relationship between him and his wife were strained.

The petitioner's case was that his wife was serving in a school; she was independent not dependent upon him and around the time when release application was filed, suit for restitution of conjugal rights had already been filed (para 13 of writ petition), the copy of the plaint dated 23.7.2010 of the said suit (R.S. No.1424 of 2010) is Annexure 6 to the writ petition. In the plaint of the said suit it was mentioned that on 29.12.2009 the wife had left the house of the petitioner.

In the revision before the A.D.J. documents were filed to show that petitioner's husband and his wife had taken divorce by mutual consent.

Copy of the petitioner's photo identity card issued by Election Commission of India was filed before the court below by the landlord showing his address at Mall Avenue. The petitioner contended that someone else had got that prepared and thereafter petitioner had obtained another voter identity card showing his address as of the house in dispute. As while issuing voter identity card the officials of the Election Commission themselves take the photograph of the voter, hence, there is no chance that anyone just by getting photograph of a person may get prepared voter identity card of that person showing incorrect address. Statement given by the petitioner on 25.5.2011 that he, his wife and son were residing together was taken into consideration by the courts below to hold that all the three were residing together at Mall Avenue. In the voter list also address of petitioner is given as D-22, Avas Vikas Colony, Mall Avenue, Lucknow.

A fantastic argument was raised before the courts below (para 29 of the Lower Revisional Court Judgment) as well as this court that due to technical error in the computer address of the petitioner was wrongly mentioned on voter list. It is impossible that due to technical error computer picked up exactly that address where wife of the petitioner was residing. Even if the report of Tehsildar which was also taken into consideration by the courts below is ignored still there is lot of evidence on record to support the finding that petitioner was residing at mall Avenue.

The aspect of divorce by mutual consent under section 13(B) of Hindu Marriage Act was also considered by the Lower Revisional Court in para 31 of its judgment. Firstly, it was subsequent to the date of declaration of vacancy. Secondly, it appears to be only a device to overcome the effect of taking another residence. It is not unknown that for the sake of property couples get sham divorces.

In one of the writ petitions which had been filed against interim order passed by the Revisional court, i.e. writ petition no. 136 R.C. of 2012, Girish Chopra vs. District Judge, the dasti notice was also issued which was served upon the petitioner. The address was given as 22-D, Avas Vikas Colony, Mall Avenue, Lucknow. Petitioner received the said notice. During arguments, learned counsel for the petitioner admitted that the said notice was received by the petitioner and it bears his signature. However, learned counsel stated that in order to contest the writ petition he had to receive the notice. As in the notice it was mentioned very clearly that petitioner was residing at Mall Avenue , hence, receipt of the notice clearly amounted to his admission of his residence at the said address otherwise he could write on the notice that his address was wrongly mentioned. Suppose in a case a person is shown to be illegitimate son of his father, and notice of the case is sent to him describing him as such, he is not supposed to receive without protest such notice.

Accordingly, I don't find least error in the impugned judgements and orders.

However, the fact remains that the dispossession of the petitioner under the impugned order was unduly hasty. No-one can quarrel with the proposition that execution must be prompt, however, the ground reality is that real trouble of the plaintiff/ decree holder starts after getting the decree. In normal course, eviction orders are not executed within two days. It is clear in this case that a right thing has been done but in a manner which is not above board.

Shri Vinay Kumar Rent Control and Eviction Officers /Additional City Magistrate - I Lucknow is warned to be careful in future. He must not give an impression that there are different time schedules for execution of the eviction orders; one for the wealthy, influential persons and the other for the ordinary citizens. Let this observation be recorded in his service book.

Landlord respondent no.3 is also censured for his actions and he is directed to pay Rs.2 lacs as damages to the tenant petitioner to compensate him for his unceremonious eviction. Let the draft of this amount drawn in the name of the petitioner be deposited before the D.M. and only thereafter the D.M. will hand over the key of the house in dispute to the landlord respondent no.3 and handover the draft to the petitioner whenever he approaches him. It is further directed that for the period for which revision remained pending petitioner shall not be liable to be pay any amount as rent except the amount which was deposited by him and withdrawn by respondent no.3. If any amount which petitioner deposited has not been withdrawn by the landlord then the same shall be returned to the petitioner. The petitioner is at liberty to take back the goods in the shape of some old furniture which were there in the house in dispute at the time of delivery of possession to respondent no.3. After receiving the aforesaid amount of Rs.2 lacs, the petitioner shall not be permitted to raise the dispute that some more items were also there in the house in dispute than what were shown in the possession memo.

Writ petition is accordingly disposed off.

Order date :-01.10.2013

mks