Harish Chandra vs Smt. Krishna Devi And 2 Others
2019 Latest Caselaw 3110 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- WRIT - A No. - 54877 of 2015
 
Petitioner :- Harish Chandra
 
Respondent :- Smt. Krishna Devi And 2 Others
 
Counsel for Petitioner :- Vinayak Mithal,Tarun Agrawal
 
Counsel for Respondent :- Atul Dayal,Abhishek Rai,Anchal Ojha,Avanish Kumar Srivastava,Vishesh Kumar
 

 
Hon'ble Manoj Kumar Gupta,J.

The instant petition is directed against the concurrent findings of bonafide need and comparative hardship recorded by the Prescribed Authority and Appellate Court in proceedings arising out of an application filed under Section 21 (1) (a) of U.P. Act No.13 of 1972 (for short 'the Act').

In brief, the facts giving rise to the instant petition are that a release application was filed by the first respondent (hereinafter referred to as 'the landlady') for release of a shop on the ground floor of building no.21/39 Sarai Meer Khan, Kotwali, Allahabad in the tenancy of the petitioner and proforma respondents (hereinafter referred to as 'the tenants'). The release was sought on the ground that her only son Sunil Kumar is unemployed. He has acquired training in electrical works and would engage himself in the said trade. There is one more shop on the ground floor, in the same building, which is in possession of her husband, in which he has installed machines for grinding food grains and spices. Her family comprising of herself, her husband, son Sunil Kumar and four daughters is living on the first and second floor of the same building. The shop in dispute in the tenancy of the petitioner is ideally suited for the business need of her son.

The release application was contested by the petitioner-tenant alone by filing written statement contending that the alleged need of the son Sunil Kumar is not bonafide, as he is already doing business of Aata Chakki alongwith his father in the adjoining shop. It is also alleged that the landlady owns several other buildings and she had recently also let out certain shops. The proforma respondents have no concern with the tenancy. Prem Chandra, respondent no.3 is tenant of another shop in building no.40, Sarai Meer Khan, Kotwali, Allahabad. Manik Chandra, respondent no.2 is son from the first wife. It is alleged that he had separated from his father during his life time and has no connection with the shop in dispute. During pendency of the release application, Jugal Kishore, husband of the landlady died on 18.10.1999. The petitioner-tenant thereafter pleaded that now Sunil Kumar is exclusively doing business from his father's shop. He has also installed a big grinding machine in the said shop. His alleged need for settling himself in business of electrical trade thus no more survives.

The landlady contested the claim of the tenant and pleaded that after death of her husband, the need of her son Sunil Kumar has not come to an end. She claimed that the business left behind by her husband is being run by her with the assistance of servants. She reiterated that her son, who has taken training in electrical trade, is not interested in doing purchoon business left behind by his father Late Jugal Kishore. He would start business in electrical trade from the shop in dispute as soon as it is released in his favour.

The Prescribed Authority held that the business of Aata Chakki and purchoon left behind by Jugal Kishore is being conducted by the landlady, as is evident from various photographs filed vide list 186-A. It is not unusual for Sunil Kumar to sit on that shop, as the shop in possession of the petitioner from where he intends to start business in electrical trade has yet not become available to him. The fact that he has been sitting on the shop of his father, after his death, is not sufficient to infer that his need has come to an end. With regard to comparative hardship, it was held that in the Commissioner's report, one room in vacant condition has been shown as available with the petitioner in house no.24, Malviya Nagar, Allahabad. It could be used by the tenant for his business. The petitioner has not made any effort to search out alternative accommodation despite the pendency of the proceedings since a long time. A sum equivalent to two years' rent has also been awarded as compensation to the petitioner, as provided under the second proviso to sub-section (1) of Section 21 of the Act. The appellate court has affirmed the findings recorded by the Prescribed Authority. The appellate court has also observed that in the meantime Sunil Kumar has got married and has three issues (two daughters and one son) and in future he would also need additional space to fulfill the need of his growing family.

The main submission of learned counsel for the petitioner is that after the death of Jugal Kishore, husband of the landlady, the adjoining shop from which he was doing business of Aata Chakki and purchoon has become available to Sunil Kumar. He is actually engaged in the said business and has also carried out expansion of the business by installing a bigger Aata Chakki. The landlady is quite old and is neither doing any business nor in a position to run the shop. The petitioner has filed number of photographs showing Sunil Kumar doing business from the said shop and an inspection report by the Inspector under the Minimum Wages Act to prove that at the time of inspection, Sunil Kumar was found doing business from the said shop. It is also urged that the shop in dispute is a small one measuring barely 6" x 7" and is not suitable for the alleged need of Sunil Kumar. In support of his contention, he has placed reliance on the judgment of the Supreme Court in Deena Nath Vs. Pooran Lal, 2001 (5) SCC 705.

On the other hand, learned counsel appearing on behalf of the landlady submitted that the courts below have rightly held that the need of Sunil Kumar still subsists. It has not come to an end after death of Jugal Kishore as purchoon business and Aata Chakki are being looked after by the landlady with the assistance of servants. The TIN number and other documents as well as photographs were filed to prove that the business is being done by the landlady. The family of Sunil Kumar has grown in size with his marriage.The courts below have rightly considered the growing need of the family of Sunil Kumar in repelling the contention that his need stood satisfied after the death of Jugal Kishore.

It is not in dispute that Jugal Kishore, husband of the landlady was doing business of purchoon and Aata Chakki from the adjoining shop in the same building. His death on 18.10.1999 during pendency of the release application is also admitted to the parties. It is noteworthy that the release application was filed in the year 1989. At the time of filing of the release application, the son of the landlady, for whose need release application was filed, was 20 years of age. He has undertaken training in electrical trade and wants to start his independent business in the said field. The landlady in her affidavit Paper No.145-B took a specific plea that after death of her husband, she is conducting the business left behind by him with the assistance of servants. She also took a specific plea that her son, who has obtained training in electrical trade, is not having interest in doing purchoon business left behind by Jugal Kishore and he would start his own business as soon as the shop is released. She also filed another affidavit Paper No.151-B dated 25.4.2007 in which she reiterated the same stand. In the said affidavit, she also took a plea that the inspection report by the Inspector under the Minimum Wages Act filed by the tenant is not a correct one. In support thereof, she brought on record another report of the same date by the Labour Inspector issued in her name as Annexure-1 to the affidavit Paper No.121-B. By means of another affidavit filed in rebuttal to the affidavit of Harish Chandra (petitioner), she brought on record the verification certificate issued from the office of Vidhik Maap Vigyan Niyantrak in her name dated 20.4.2005. It has also come on record that during pendency of the proceedings, Sunil Kumar got married and his family has grown in size with two daughters and one son being born to them. The courts below have entered a specific finding that the need of Sunil Kumar for engaging himself in business of electrical trade still subsists. It has also been held that the mere fact that in some photographs, he is found sitting in the shop is not unnatural, as he still has no suitable place to start his independent business. It has also been held that the business left behind by Jugal Kishore is being looked after by the landlady and she has even expanded the said business by installing a grinding machine.

The legal position with regard to consideration of subsequent events in a case of eviction filed by landlord against the tenant on ground of personal requirement is no more res-integra. A Three Judge Bench of the Supreme Court in Hasmat Rai and another Vs. Raghunath Prasad, AIR 1981 SC 1711 has held that when eviction is sought on ground of personal requirement of the landlord, such requirement must continue to exist till the final determination of the case. The Supreme Court has followed an earlier judgment in Pasupuleti Venkateshwarlu Vs. Motor and General Traders, AIR 1975 SC 1409 in taking the said view. The same view has been taken once again in specific reference to a case under Section 21 (1) (a) of the Act by the Supreme Court in Kedar Nath Agrawal (dead) and another Vs. Dhanraji Devi (dead) by Lrs. and another, 2004 (2) ARC 764. It is, therefore, no more res-integra that subsequent events taking place during pendency of the release application have to be taken into consideration.

The Supreme Court in Kedar Nath Agrawal (supra) also noted the observations made in an earlier judgment in Ramesh Kumar Vs. Kesho Ram, AIR 1992 SC 700 in following words:-

"19. In Ramesh Kumar vs Kesho Ram, (1992) Supp (2) SCC 623 : AIR 1992 SC 700, this Court observed that a Court can mould relief taking 'cautious cognizance' of subsequent events. The Court also observed that all these depend on factual and situational differences and 'there can be no hard and fast rule governing the matter'."

The caveat applied in Ramesh Kumar that while considering subsequent event, the court should adopt a cautious approach and not deal with the matter in a routine manner was reiterated in a subsequent judgment in Lekh Raj, Vs. Muni Lal and others, AIR 2001 SC 996. It has been held that when subsequent events are brought on record, the court should also examine whether the alleged subsequent event has any material bearing on issues involved or would materially affect the result of the proceedings or not.

The Supreme Court, while following the same approach in Gaya Prasad Vs. Pradeep Srivastava, AIR 2001 SC 803 repelled the plea of the tenant that son of the landlord, who wanted to start his clinic in the disputed shop as a doctor has come to an end, as during pendency of the proceedings, he had joined medical service by observing thus:-

"We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow-process system subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendent lite, because the opposite party succeeded in prolonging the matter for such unduly long period."

In a recent judgment in Hukum Chandra Vs. Nemi Chand Jain and others, 2019 (133) ALR 260 the Supreme Court while reiterating the legal position laid down in Gaya Prasad, repelled the contention of the tenant that the need of the landlord stood satisfied consequent to release of adjoining shop in the same building. It has been held that:-

"18. In the light of the above principles and considering the case in hand, the fact remains that the present case is of a landlord - tenant dispute. As discussed infra, the shop vacated by other tenant - Babulal is for the bona fide requirement of respondent - landlord's another son Rajesh Kumar Jain. In that view of the matter, the court would not be justified in taking notice of such a subsequent fact sought to be projected by the appellant to oppose the relief granted by the courts below. In the facts and circumstances of the present case, the subsequent event relied upon by the appellant - tenant cannot be taken cognizance."

It is thus clear that although subsequent events taking place during pendency of the proceedings are required to be taken into consideration, but while considering the same, the court has to take a cautious approach. It should examine whether the alleged subsequent event has any material bearing on the issues involved or would materially affect the result of the litigation or not. The subsequent events should be of such dimension as would completely demolish or satisfy the need set up by the landlord. The alleged subsequent event should be considered in the background of other relevant factors qua the requirement of the landlord and his family, particularly in the changed circumstances.

In the instant case, undoubtedly, the husband of the landlady had died leaving behind the business being done by him. The specific case of the landlady is that after death of her husband, she has started managing the said business with the assistance of servants, as her son Sunil Kumar is not interested in purchoon business. The courts below have rightly observed that the mere fact that he was found sitting or doing business from the said shop is not sufficient to infer that his need has come to an end. The son of the landlady wants to engage himself in business of electrical trade in which he has taken training. The courts cannot compel him to earn his livelihood by doing business in which he is not interested. The fact that in absence of a suitable shop to start business of his choice, he is compelled by fortuitous circumstances to look after purchoon business in the meantime would not be sufficient to hold that his need for the shop in dispute has come to an end. His family has grown in size after his marriage with birth of two daughters and one son. The release application was filed in the year 1989 when he was 20 years of age and since then 30 years have passed and he must be around 50 years as of now and his children must also be nearing the age of majority. The appellate court has rightly observed that while considering the changed circumstances arising out of death of Jugal Kishore, the other attending factors have also to be taken into consideration. While so doing, it has rightly held that in future, the growing family of Sunil Kumar would undoubtedly need additional accommodation.

In Deena Nath Vs. Pooran Lal (supra) on which reliance has been placed by learned counsel for the petitioner, the Supreme Court has observed that although the finding of bonafide requirement on a first look, appears to be a question of fact, but in recording a finding on the question, the court has to bear in mind the statutory requirements. "If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment. In such case the High Court cannot be faulted for interfering with the finding in exercise of its second appellate jurisdiction under Section 100 of the Code of Civil Procedure."

However, in the instant case, this Court does not find that the courts below have not kept in mind the statutory requirements while returning finding on the issue of bonafide need. On the other hand, as noted above, the courts below were alive not only to the need set up in the release application but also the alleged subsequent events and the attending facts and circumstances and thus, it could not be said that they have committed any error in holding the need of the son of the landlady to be genuine and bonafide.

It is noteworthy that the original tenant of the shop was Pancham Lal, the father of the petitioner and proforma respondents 2 and 3. It is also not in dispute that Prem Chandra, one of the proforma respondents is doing business from shop in the adjoining building no.40, Sarai Meer Khan, Allahabad. The courts below have found that there is one room in building no.524, Malviya Nagar, Allahbad which is lying vacant and from where the petitioner can start his business. They have also observed that after submission of the Commissioner's report and its confirmation subject to evidence of the parties, the petitioner started mentioning his address as that of the disputed shop, while earlier he was showing his residential address as 524, Malviya Nagar, Allahabad in an attempt to prove that the said building belongs to wife of Prem Chandra, proforma respondent no.3. The courts below have also awarded two years' rent as compensation to the petitioner in compliance of the second proviso to sub-section (1) of Section 21 of the Act. These findings have not been challenged before me at the time of making oral submissions.

In consequence and as a result of discussion made above, this Court is of the considered opinion that the concurrent findings of bonafide need and comparative hardship returned by the courts below do not warrant any interference in exercise of extraordinary power under Article 226 of the Constitution.

The petition lacks merit and is dismissed.

(Manoj Kumar Gupta, J)

Order Date :-18.4.2019

SL