Allahabad High Court
Mohammad Khadim vs Smt. Shabnam And 18 Others on 5 October, 2018
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 37
Case :- MATTERS UNDER ARTICLE 227 No. - 7618 of 2018
Petitioner :- Mohammad Khadim
Respondent :- Smt. Shabnam And 18 Others
Counsel for Petitioner :- Man Bahadur Singh
Counsel for Respondent :- Muqeem Ahmad
Hon'ble Siddhartha Varma,J.
Heard learned counsel for the petitioner and the learned counsel for the respondents Sri Muqeem Ahmad.
The respondent did not pray for time for filing a counter affidavit and the counsel submitted that he would make submissions without a counter affidavit.
This writ petition has been filed by the tenant-petitioner against the order dated 16.3.2017 passed by the Prescribed Authority (Civil Judge, Senior Division), Azamgarh, in P.A. Case No. 06 of 2002 and the judgement and order dated 19.7.2018 passed by the Additional District Judge Court No. 8, Azamgarh in P.A. Appeal No. 20 of 2017.
Briefly stated the facts of the case are that the respondents no. 1 Smt. Shabnam filed a Release Application under Section 21(1)(a) of the U.P. Act XIII of 1972 on the ground that her husband Allauddin had returned from Saudi Arbia and wanted to settle down with her and do his own business. She had stated that she had a mind to extend her shop which was in the neighbourhood after including the petitioner's shop and wanted to do business in a bigger extended shop. The petitioner filed his reply to the application for release and stated that he had been doing business of hair cutting in the shop in question and that the income from the shop was the only source of income for him. He also stated that a fair amount of good will was also attached with the shop. If the landlord did not extend her shop she could still continue to run the shop and do business from the neighboring shop. He further stated that if the relief claimed in the application for release was granted then the hardship to the tenant would be much greater than the hardship which the landlord was facing. Various documentary evidence were placed from both the sides. An amin also visited the spot and the report which he submitted was also confirmed. It was brought on record that if the wall in between the shop in which the petitioner was working and the wall of the neighboring shop which was in occupation of the landlord was removed then a bigger shop could be established.
The counsel for the petitioner very vehemently made the following submissions:-
I. The petitioners family was a big one and that the only source of income was the Barber's shop in question.
II. There was a certain amount of good will attached to the shop in question.
III. The hardship which would be faced by the tenant would be many time greater than the hardship which the landlord was facing.
IV. There was no bonafide need of the landlord.
The landlord who is represented by Sri Muqeen Ahmad, Advocate, however, submitted that the petitioner who was a tenant was a very capable person and could always shift to another shop to enable the landlord to extend her shop. He also submitted that if the landlord required the shop and wanted to extend the business which was already running then it had to be believed that there was a bonafide need of the landlord. Learned counsel also submitted that the petitioner/tenant made absolutely no efforts to search out any alternative accommodation during the period the litigation was going on to settle himself.
Learned counsel for the landlord relied upon 2012 (2) SCC 155 (Mohd. Ayub and another vs. Mukesh Chand) and read out paragraph 15 and 17 which are being reproduced here as under:-
"15. It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is a pretence because they are dealing in eggs and it is not uncommon for a Muslim family to do the business of non- vegetarian food. It is for the landlord to decide which business he wants to do. The Court cannot advise him. Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below.
17. It is also important to note that there is nothing on record to show that during the pendency of this litigation the respondent made any genuine efforts to find out any alternative accommodation. We specifically asked learned counsel for the respondent to point out any evidence to establish that the respondent made any such genuine efforts. He was unable to answer this query satisfactorily."
He also relied upon 2014 (3) ARC 143 (Krishna Kumar Rastogi v. Sumitra Devi) and submitted that the landlord should be allowed to do the business of his choice and the tenant should always been put to notice that the landlord required the premises for his need so that the tenant could make efforts to find out an alternative accommodation.
Learned counsel submitted that as per the judgement reported in 2014 (9) SCC 78 (Hindustan Petroleum Corporation Limited v. Dilbahar Singh) when findings are based on documentary and oral evidence and they have been well appreciated by the courts below then interference should not be made by this Court with such findings of fact.
Having heard the learned counsel for the parties and also after having gone through the judgements of the court below, I am of the definite view that the findings arrived at in favour of the landlord that there was a bonafide need and the findings that hardship to the landlord was greater without the shop in question than the hardship which the tenant might face once he leaves the shop cannot be interfered with. Definitely, it has been found that the petitioner did not make any efforts to search out any alternative accommodation.
Under such circumstances, there is no merit in this writ petition and, therefore, the writ petition is dismissed.
However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the tenant-petitioners before the Court below, it is provided that:
(1) The tenant-petitioners shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 5.10.2019.
(2) The tenant-petitioners shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioner shall now pay Rs. 1,000/- per month as damages to the landlord for the period which he shall be in occupation
(4) In the undertaking the tenant-petitioners shall also state that they would not create any interest in favour of any third party in the premises in dispute;
(5) Subject to filing of the said undertaking, the tenant-petitioners shall not be evicted from the premises in question till the aforesaid period;
(6) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(7) In case the shop is not vacated as per the undertaking given by the petitioners, they shall also be liable for contempt.
Order Date :- 5.10.2018
praveen.
(Siddhartha Varma,J.)
