Harun Ali And Anr. vs Shri Navjeewan
2017 Latest Caselaw 1101 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 2
 
Case :- WRIT - A No. - 22944 of 2017
 

 
Petitioner :- Harun Ali And Anr.
 
Respondent :- Shri Navjeewan
 
Counsel for Petitioner :- Rajesh Gupta
 
Counsel for Respondent :- Madan Mohan Chaurasisa,Vinayak Mithal
 
Hon'ble Manoj Misra, J.

Heard learned counsel for the petitioners; Sri Vinayak Mithal for the respondent- landlord; and perused the record.

The present petition has been filed challenging the order dated 18.4.2015 passed by Prescribed Authority, Meerut in P.A. Case No. 15 of 2011 and the order dated 19.04.2017 passed by Additional District and Sessions Judge, Court No. 15, Meerut in P.A. Appeal No. 41 of 2015.

A perusal of the record would reveal that a common release application was filed by the landlord- respondent against two tenants, the petitioners herein, who were tenants of two separate shops in a building complex owned by the landlord. The need set up for release of two shops was to enable the unemployed son of the landlord, who had obtained MBA degree, to establish his own consultancy firm in Meerut. One shop was to be used as a waiting room for the clients and the other was to be used as a consultation chamber. It was stated that the landlord's son had no other accommodation and therefore the shops were bona fide required.

A joint written statement was filed by the petitioners. They challenged the need of the landlord and claimed that a joint release application against two tenants of separate tenements was not maintainable.

The Prescribed Authority, after considering the affidavits brought on record found that the need of the landlord to establish his son in a consultancy business at Meerut was bona fide and that the tenants, despite pendency of the release proceedings for several years, had not made any effort to search for an alternative accommodation accordingly the scale of comparative hardship tilted in favour of the landlord. The appellate court affirmed the release order. Assailing the two orders the present petition has been filed.

Challenging the impugned orders, the learned counsel for the petitioners contended as follows: (i) That a joint release application in respect of two separate tenements in possession of two separate tenants was not maintainable because under the provisions of section 21 of U.P. Act No. 13 of 1972 (herein after referred to as the Act), a release application can be filed by landlord for eviction of a tenant. The words a tenant are of significance and they, by necessary implication, exclude tenants. It has been submitted that the scheme of the Act provides for comparison of hardship of the landlord viz a viz the tenant and therefore hardship of each tenant has to be considered separately and as such a joint application against two tenants is not conceived of by the Act and as such is not maintainable. (ii) That a document was filed during the pendency of the proceedings to disclose that the landlord's son had obtained employment in Delhi and therefore whatever need he had, stood satisfied but that aspect was not properly considered by the courts below. (iii) That the courts below have failed to consider comparative hardship in proper perspective by observing that the tenants had not disclosed that they made search for alternative accommodation during pendency of the proceeding. It has been submitted that such an approach was not legally sustainable under the Act and the Rules framed thereunder.

Sri Vinayak Mithal, learned counsel for the respondent has supported the judgment and order passed by the courts below and has placed reliance on a decision of this court in the case Jagdish Chandra Yadav V. Ist Additional District Judge, 1976 AWC 819 (All) = MANU/UP/0583/1976.

I have given thoughtful consideration to the submissions of learned counsel for the parties.

The first submission of the learned counsel for the petitioners that there cannot be a common release application against two tenants of two separate tenements, under separate tenancies, cannot be accepted because it is well settled in law that singular includes plural. Moreover, it has already been held by this court in Jagdish Chandra Yadav's case (supra) that there is no prohibition under the Act in respect of filing a common petition for release of two or more tenements in occupation of different tenants.

Though a release application may not be a suit but the principles laid down in the Code of Civil Procedure as to who can be joined as defendants can be used to ascertain whether any prejudice has been caused to the defendants by being jointly sued under a common release application. Order 1 Rule 3 CPC provides as to who may be joined as defendants.- "All persons may be joined in one suit as defendants where? (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b) if separate suits were brought against such persons, any common question of law or fact would arise."

In the present case, the need set up by the landlord-respondent was to set up a consultancy establishment with two rooms, one for consultation and the other to provide waiting area for the clients. The need was therefore in respect of both the tenements and as such common question of law and fact was involved.

The contention that under the scheme of the Act, comparative hardship of each tenant has to be considered therefore there cannot be common release application against two separate tenants, cannot be accepted because while deciding the release application if the court can grant partial release to fulfill need of the landlord it can always partly reject the release application on the facts of each case by examining comparative hardship separately for each tenant even in a common application.

In the present case, the learned counsel for the petitioner has failed to show that any prejudice was caused to the petitioners by joint consideration of the question of comparative hardship, particularly because the issue has been decided against the petitioners on the ground that despite long pendency of the proceeding they had failed to disclose that any efforts were made by them to search for alternative accommodation. 

In view of the discussion made above, the first contention of learned counsel for the petitioners that common release application was not maintainable, is liable to be rejected in the facts of the case.

In respect of the second contention of the learned counsel for the petitioners that landlord's son was gainfully employed in service in Delhi and therefore there was no bona fide need, suffice to say that the court below has examined the aforesaid aspect and has found that the said employment had taken place during the pendency of the release proceedings and this employment was a temporary employment to ensure that he does not remain unemployed till the shops are vacated. Such temporary employment cannot be taken as a ground to hold that the need of the landlord stood extinguished. Moreover, a person has a right to be self employed using his own premises. He cannot be forced to seek employment elsewhere. Accordingly, the second contention of the learned counsel for the petitioners has no substance.

In respect of the third contention that there was no serious discussion on the issue of comparative hardship, it would be apposite to observe that the Apex Court in the case of Bega Begum v. Abdul Ahad Khan, (1979) 1 SCC 273 has held that in every case where an order of eviction is passed, the tenant will come on the street. The fact that the tenant will come on street, if eviction is ordered, is not a consideration to deny the landlord his legitimate claim. The apex court in B.C. Bhutada v. G.R. Mundada, (2003) 2 SCC 320 has held that as to whether the tenant could shift his business or has missed opportunity in that regard are all relevant consideration to test the comparative hardship. Accordingly, when a bona fide need for an accommodation is set up by the landlord, and the matter remains pending for some time, the tenant is required to demonstrate that he made sincere efforts to look out for an alternative accommodation, in absence whereof the balance of comparative hardship tilts in favour of the landlord. Such has been the consistent view of this court.

In the instant case, the release proceedings had remained pending for nearly six years but nothing was brought on record to demonstrate that any effort was made to look / arrange for an alternative accommodation, under the circumstances the view taken by the court below that the scale of comparative hardship tilted in favour of the landlord calls for no interference.

In view of discussion made herein above, this Court finds that there is no illegality in the impugned orders.

At this stage, learned counsel for the petitioners prayed for some time to vacate the premises.

Considering the facts and circumstances of the case, this Court is of the view that the interest of justice would be served if the petitioners are provided time up to 30 November, 2017 to vacate the premises and handover possession to the landlord-respondent by then.

This petition is therefore disposed of by holding that no good ground has been shown to set aside the judgment and orders passed by the courts below and therefore the prayer to set aside the impugned orders is rejected. However, it is provided that the petitioners shall not be evicted from the premises in dispute pursuant to the release order till 30th November 2017 provided the petitioners, by 15.07.2017, furnish an undertaking along with an affidavit in the court of prescribed authority concerned that they shall handover vacant and peaceful possession of the premises in question to the landlord-respondent on 1st December, 2017. In addition to above, the petitioners, to avail the benefit of this order, shall also deposit admitted rent in advance for the period up to 30th November 2017 by 15.07.2017.

It is made clear that if by 15.07.2017 the aforesaid undertaking is not furnished before the court concerned or the advance rent as mentioned above is not deposited then the release order shall become executable forthwith. It is also made clear that if by 1st December, 2017 the petitioners fail to handover vacant and peaceful possession of the premises in question to the landlord-respondent, despite undertaking, it would not only be open to the landlord-respondent to execute the release order but he shall also be entitled to initiate proceeding against the petitioners for contempt of Court.

Order Date :- 24.5.2017

Arvind