Allahabad High Court
Pramod Kumar vs Vinod Kumar on 1 August, 2019
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 5
Case :- WRIT - A No. - 11722 of 2019
Petitioner :- Pramod Kumar
Respondent :- Vinod Kumar
Counsel for Petitioner :- Rajesh Gupta
Counsel for Respondent :- Neeraj Agrawal
Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Rajesh Gupta, learned counsel for the tenant-petitioner and Sri Neeraj Agrawal, learned counsel for the plaintiff-landlord/respondent.
2. Briefly stated facts of the present case are that the plaintiff-landlord/respondent is the owner of House No.248, Maliyana Road, Kishanpura; Paragna, Tehsil and District - Meerut. In the said house the petitioner is a tenant of one shop at a monthly rent of Rs.70/-. The plaintiff-landlord/respondent has two unemployed major sons, namely, Chintu and Vikas. Therefore, the plaintiff-respondent has filed P.A. Case No.52 of 2006 (Vinod Kumar Vs. Pramod Kumar) on the ground of bonafide need of the disputed shop for setting up business for his son Chintu for employment. The aforesaid P.A. Case was decreed by the Prescribed Authority/Judge Small Cause Court, Meerut, by the impugned judgment dated 01.05.2017. Aggrieved with that judgment, the tenant-petitioner filed a Misc. Appeal No.97 of 2017 (Pramod Kumar Vs. Vinod Kumar) which has been dismissed by the District Judge, Meerut, by the impugned judgment dated 28.05.2019. Aggrieved with these two judgments, the tenant-petitioner has filed the present writ petition under Article 226 of the Constitution of India.
3. Learned counsel for the tenant-petitioner submits as under:-
(i) The plaintiff-landlord/respondent has one shop behind the shop of the tenant-petitioner and, therefore, his need can not be said to be a bonafide need. He may use that shop for setting up business for his son - Chintu.
(ii) The tenant-petitioner has filed an application for issue of commission for spot inspection to find out that the shop behind the shop of the petitioner is in occupation of the plaintiff-landlord/respondent but that application for commission was illegally rejected by the court below.
(iii) Both the courts below have wrongly decided the question of comparative hardship to be in favour of the plaintiff-landlord/respondent.
4. Sri Neeraj Agrawal, learned counsel for the plaintiff-landlord/respondent supports the impugned judgment.
5. I have carefully considered the submissions of learned counsels for the parties.
6. Objecting the bonafide need of the plaintiff-landlord/respondent for the disputed shop, the defendant-tenant/petitioner submitted before the courts below that a room behind the disputed shop was being used by the brother of the plaintiff as a store room which has been vacated and which has been converted into a shop in which the son of the plaintiff, namely, Vikas is carrying a business under the name and style of Vikas Confectionery and his other son Chintu is also involved in the said business. The plaintiff-landlord/respondent has admitted that behind the disputed shop there is a space which is being used as a shop and from which his son vikas is carrying on business under the name and style of Vikas Confectionery. It could not be proved by the defendant-tenant/petitioner that the plaintiff's son Chintu is carrying on business from the aforesaid shop. The plaintiff has set up the bonafide need for setting up business for his son Chintu from the disputed shop. No evidence could be brought on record that the Chintu is employed and carrying on his own business. Under the circumstances, the bonafide need of the plaintiff-landlord/respondent for the disputed shop for setting up business of his son Chintu, was well found by the courts below to have been established. The findings recorded by the courts below on the point of bonafide need of the plaintiff for the disputed shop are the concurrent findings of fact based on consideration of relevant evidences on record. Neither it has been argued before me nor it could be pointed out that the findings recorded by the courts below on the point of bonafide need is perverse. So far as the rejection of application for issue of commission is concerned, as per own submission of learned counsel for the defendant-tenant/petitioner as aforenoted, the application for issue of commission was filed to find out the existence of shop behind the disputed shop. The plaintiff-landlord/respondent himself has admitted that he is in occupation of a shop behind the disputed shop from where his son Vikas is carrying on business. Therefore, even on admitted facts there was no need for issue of commission. The Court found no ambiguity in the evidences before it and, therefore, it rightly rejected the application for issue of commission.
7. So far as the, question of comparative hardship is concerned, I find that both the courts below have recorded the concurrent findings of fact that the comparative hardship is in favour of the plaintiff-landlord/respondent. The release application was filed in the year 2006. More than 13 years have passed but the defendant-tenant/petitioner has not made arrangement for an alternative accommodation. The plaintiff-landlord/respondent has no place except the disputed shop for setting up business for his son Chintu. Therefore, the finding of comparative hardship to be in favour of the plaintiff-landlord/respondent has been correctly recorded by the courts below.
8. For all the reasons aforestated, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed. However, there shall be no order as to costs.
Order Date :- 1.8.2019/vkg
