Chandra Gopal Shukla vs Additional District & Sessions ...
2017 Latest Caselaw 1478 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

'AFR'
 
RESERVED
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1201 of 2017
 

 
Petitioner :- Chandra Gopal Shukla
 
Respondent :- Additional District & Sessions Judge/F.T.C. & Another
 
Counsel for Petitioner :- Pooja Agarwal
 
Counsel for Respondent :- Ruchi Mishra
 

 
Hon'ble Manoj Misra, J.

This is a defendant-tenant's petition against the order dated 16.05.2014 passed by the Prescribed Authority, Kanpur Nagar in Rent Case No. 10 of 2013 and the order dated 08.02.2017 passed by the Additional District and Sessions Judge (FTC), Court No.52, Kanpur Nagar in Rent Appeal No. 75 of 2014.

The landlord-respondent had filed release application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 against the petitioner for release of a shop on the ground floor of House No. 128/29 H-1 Block, Kidwai Nagar, Kanpur Nagar for his only child, namely, daughter Km. Jyoti Awasthi, to set up a beauty parlour. It was alleged that the landlord was a retired primary school teacher having meagre pension, insufficient to maintain his family, as a result, his daughter took training from an institute in personal and beauty care and, therefore, the shop in dispute was required for setting up a beauty parlour to have her own income.

The Prescribed Authority as well as the appellate authority found the need to be bona fide and, accordingly, directed release of the accommodation in dispute.

Miss. Pooja Agarwal, who had appeared on behalf of petitioner, had confined her argument to a legal aspect of the matter. She submitted that during the pendency of the appeal, the landlord's daughter got married and, therefore, her need could not have been considered for release of the shop because, under Section 21(1)(a) of the U.P. Act No. 13 of 1972, a building could only be released when it is bona fide required by the landlord himself or any member of his family, whereas, under Section 3 (g) of the U.P. Act No. 13 of 1972, family does not include a married daughter. Therefore, the need of a married daughter could not have been considered and once it was brought to the notice of the court that the landlord's daughter got married, the release application had to be dismissed. In support of the above submission, reliance has been placed on a decision of the apex court in Ramesh v. A. Bal Reddy : (1990) 3 SCC 583 to contend that after marriage the daughter goes out of the family of the landlord and her requirement cannot be made basis of an eviction decree.

In response to the above submission, Sri Madhav Jain, who had appeared on behalf of the landlord-respondent, submitted that although the landlord's daughter Jyoti Awasthi had got married during the pendency of the appeal but an affidavit was filed before the appellate court stating therein that his daughter continues to reside with him and therefore continues to be part of the family. It has also been submitted that birth, marriage or death are natural events in one's life and the said events cannot be used to reject the claim, particularly when right gets crystallized on the date of the institution of the proceeding. He placed reliance on a recent decision of the apex court in Gulshera Khanam v. Aftab Ahmad : (2016) 9 SCC 414 where one of the questions that arose for consideration before the apex court was whether married daughter would fall within the meaning of the word 'family' as defined under Section 3(g) of the Act. After examining the definition of the word 'family', the apex court observed that "family" in relation to a landlord or tenant of a building, means his or her- (i) spouse; (ii) male lineal descendants; (iii) such parents grand-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her; and (iv) includes, in relation to a landlord, any female having a legal right of residence in that building.

The apex court held that any female having legal right of residence in the building would also be included in the family whether she is married or not. The apex court thereafter proceeded to hold that since the original landlord had died and the daughter was one of the co-sharer in the property, she would have legal right of residence in the building and as such would fall within the meaning of "family" under Section 3(g) of the Act.

I have given thoughtful consideration to the submissions of the learned counsel for the parties and have perused the record carefully.

The only issue that requires determination is whether in view of the subsequent marriage of the landlord's daughter, the need set up in the release application stood extinguished for seeking release under Section 21(1)(a) of U.P. Act No. 13 of 1972.

Before dealing with the above issue, it would be apposite to refer to the pleading in the release application.

In the release application, it was pleaded that the landlord was an old retired teacher having a meagre pension which was insufficient to bear the expenses of his family; that he had only one child, namely, Km. Jyoti Awasthi, who had undertaken training in personal and beauty care; and that the disputed shop was required for enabling her to set up a beauty parlour to have her own income. In the written statement it was not disputed that Km. Jyoti Awasthi was the only child of the landlord and that the landlord was a retired teacher dependent on pension, though it was stated that in the building a coaching was also being run.

The prescribed authority allowed the release application by holding the need to be bona fide and finding comparative hardship greater for the landlord.

Before the appellate court plea was raised by the tenant that consequent to marriage of the daughter the need stood extinguished and therefore the appeal be allowed and release application be rejected.

In Nidhi v. Ram Kripal Sharma : AIR 2017 SC 814, the apex court, after taking a conspectus of various decisions, had observed that, ordinarily, rights of the parties stand crystallised on the date of institution of the suit. However, the Court has power to take note of the subsequent events and mould the relief accordingly. In the above case, the apex court noticed earlier decisions wherein it was held that the court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Nidhi's case (supra), after considering the facts of the case, the apex court found that the need of the landlady did not extinguish on account of her marriage because her requirement to accommodate her parents and grand-parents continued.

In the instant case, this Court finds that the landlord's daughter is landlord's only child. The landlord is a retired pensioner having meagre income. The need set up by him was to ensure that his daughter had her own income and for which end she was provided training. When plea was raised by the tenant that during the course of appeal landlord's daughter got married therefore the need for the shop stood extinguished, an objection / affidavit (Annexure 6 to the petition) was filed by the landlord stating that his daughter continues to reside with him even after marriage and since the need set up was to augment the income, and his daughter would be a means to serve that end, by her marriage the need set up did not extinguish. There appears no rebuttal to the aforesaid objection/ affidavit filed by the landlord.

Upon a conjoint reading of the release application and the subsequent affidavit of the landlord, what transpires is that the need set up by the landlord in the release application was not merely to get an employment for his daughter but to ensure better financial condition for the family. Considering that landlord's only child was his daughter, he had no option but to look up to his daughter for amelioration of his financial condition. Therefore, once it was brought on record that even after marriage she was staying with her father/ landlord, this court is of the view that mere marriage of landlord's daughter did not extinguish the need set up in the release application. Under the circumstances, the appellate court was justified in dismissing the appeal by rejecting the plea that on account of marriage of landlord's daughter, the need set up stood extinguished.

As no other point was pressed, this court finds no good reason to set aside the impugned orders. The petition is dismissed. However, the petitioner would have time up to 31st July 2017 to vacate and hand over possession of the disputed accommodation to the landlord. There is no order as to costs.

Order Date :- 31.5.2017

Sunil Kr Tiwari