Kamal Ahmad vs Addl. District Judge, Court No. 1 ...
2013 Latest Caselaw 5819 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(Judgment reserved on 11.09.2013)
 
(Judgment delivered on 16.09.2013)
 

 
Court No. - 21
 

 
Case :- RENT CONTROL No. - 112 of 2013
 

 
Petitioner :- Kamal Ahmad
 
Respondent :- Addl. District Judge, Court No. 1 Faizabad & Others
 
Counsel for Petitioner :- Mohd. Ehtesham Khan
 
Counsel for Respondent :- Manish Kumar
 

 

 
Hon'ble Sibghat Ullah Khan,J.

In this writ petition on 11.9.2013 following order was passed:-

"Heard sri M.A. Khan, learned senior counsel assisted by Sri M.E. Khan, learned counsel for petitioner.

Order reserved.

Put up for delivery of order on 16.09.2013.

Until 16.09.2013, petitioner shall not be evicted. Learned counsel for petitioner is directed to supply a kachchi copy of the objection filed by landlord respondent to the amendment application, which had been filed by the tenant petitioner appellant before the lower appellate court."

This is tenant's writ petition arising out of eviction/ release proceedings initiated against him by landlords respondents No.3 & 4, Dinesh Kumar Jaiswal and Awadesh Kumar Jaiswal on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''U.P. Act No.13 of 1972'), which was registered as P.A. Case No.2 of 2001. Prescribed Authority/ Civil Judge (J.D.), Faizabad allowed the release application through judgment and order dated 14.05.2003. Against the said order, tenant petitioner filed R.C. Appeal (M.C.A.) No.18 of 2003. A.D.J., Court No.1, Faizabad dismissed the appeal on 23.07.2013, hence this writ petition.

Property in dispute is a shop rent of which is Rs.30/- per month.

Landlords asserted that they required the shop in dispute for doing business and they were not having any source of income. Tenant asserted that tenancy was continuing for 40 years since the time of his father. Tenant further asserted that landlords had a shop in Chowk Ghanta Ghar from where they were carrying on their businesses. It was also pointed out by the tenant that landlords were doing several types of businesses from other accommodations. The specific case of the tenant was that Dinesh was doing the job of property dealing and thekedari and Awadesh was running a P.C.O. and the business of selling kattha, supari, pan etc. The courts below held that even this much was not pointed out that from where Dinesh was doing the business of property dealing. Both the courts below also held that it could not be proved that Awadesh was doing any business.

The Prescribed Authority held that 13-14 shops pointed out by the tenant to be available to the landlords situate in Houses No.124, 125 and 127 were not available to them as those properties had gone in the share of other persons under the Will executed by their ancestor i.e. to Rajendra Prasad, Naresh Kumar and Smt. Heeramani Devi and the said fact was proved from house tax assessment record. The records also showed that House No.127 was entered in the name of Mandir Sri Mahadev.

Regarding the business of selling pan, supari etc. applicants landlords asserted that the said business was being carried out by their other brothers. Supreme Court in Shushila Vs. A.D.J., AIR 2003 SC 780 has held that every adult landlord and every adult family member of a landlord is entitled to separate business.

Regarding availability of open plot and residential accommodation available to the landlords, courts below rightly held that they were irrelevant.

Moreover, the 13-14 shops pointed out to be situate in Houses No.124, 125 and 127 by the tenant were not stated to be vacant. Out of several tenants, landlord may choose any one of them seeking release on the ground of bona fide need.

Regarding comparative hardship, landlords asserted that several shopping complexes had been constructed in the city and tenant could take any shop on rent. The tenant asserted that the shops in the said complexes were available on higher rent and pagari. The rate of rent of Rs.30/- per month is virtually as well as actually no rent. For several decades tenant is occupying the shop for virtually no rent accordingly he must have saved a lot of money to pay higher rent. It would be double torture upon the landlord if he is first forced to suffer a tenant on virtually no rent and then asked to point out another accommodation available at the same negligible rate of rent which might be taken on rent by the tenant even though landlords bonafide need is proved.

Learned counsel for the petitioner has argued that an amendment application was filed in the appeal by the tenant on 27.09.2008, copy of which is Annexure-7 to the writ petition. Another amendment application was filed on 13.12.2012 seeking amendment in the written statement by adding para-39 to the effect that tenant made efforts to search alternative accommodation but he could not get any other shop. On 22.05.2009 lower appellate court passed an order that amendment application would be considered at the time of final disposal of the appeal. On 05.04.2013, an order was passed rejecting the said applications. Copy of the said order is Anenxure-12 to the writ petition. In the said order, it was mentioned that tenant could file affidavit however, no affidavit was filed by the tenant. Moreover, strict principles of pleadings do not apply to release proceedings under Section 21 of U.P. Act No.13 of 1972. No evidence of the petitioner has been refused to be taken into consideration by the lower appellate court on the ground that it was not based upon corresponding pleading in the written statement. Petitioner did not seek any permission from the lower appellate court to file affidavit to support the allegations that landlords had made some complex. A photograph filed as Annexure-9 in this writ petition cannot be taken into consideration. It should have been filed along with affidavit before the lower appellate court. It is not stated in the writ petition that any application along with an affidavit to file as additional evidence in the appeal was filed. Along with supplementary affidavit (filed after the judgment was reserved) copy of objections filed by the landlord before lower appellate court have been annexed. Landlord denied all allegations and asserted that similar allegation had been made in the original written statement. The argument that the petitioner was not aware of the order dated 5.4.2013 or that the order should have been part of final judgment as had been indicated in the order dated 22.05.2009 is too technical. The irregularity if any is too trivial.

It appears that due to delaying tactics adopted by the tenant petitioner appeal remained pending for 10 years. If rent is virtually nil and unconditional stay order has been granted then tenants appellants or revisionists constantly invent new tricks to delay the disposal of appeal/revision. The more inadequate is the rent, the more ingenious and tenancies is the delaying tactics.

I do not find least error in the impugned orders. Writ Petition is dismissed.

Tenant-petitioner is granted six month's time to vacate provided that:-

1. Within one month from today tenant files an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlords-respondents.

2. For this period of six months, which has been granted to the tenant-petitioner to vacate, he is required to pay Rs.9000/-( at the rate of Rs.1500/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlords-respondents.

In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs.9000/- are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs.2500/- per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs.9000/- the house in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs.2500/- per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and initiate execution proceedings under Section 23 of the Act.

Order Date :- 16.09.2013

NLY