Smt. Anita Kumari vs Smt. Sneh Lata And Another
2021 Latest Caselaw 3277 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 4
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1541 of 2021
 

 
Petitioner :- Smt. Anita Kumari
 
Respondent :- Smt. Sneh Lata And Another
 
Counsel for Petitioner :- Ashish Mohan Srivastava
 

 
Hon'ble Vivek Kumar Birla,J.

By means of this writ petition, the petitioner seeks following relief:

"i) to set aside the impugned order dated 04.02.2021 passed by learned Additional Chief Judicial Magistrate, Anoopshahar (Bulandshahr) in execution Case No.02 of 2016 (Sneh Llata vs. Vijay Kumar) (Annexure No.7 to the petition)."

By the impugned order dated 04.02.2021, the application filed by the petitioner being Paper No.38-C (2) for issuance of commission has been rejected by the Execution Court.

Submission of learned counsel for the petitioner is that the brother of the petitioner against whom release application filed was in collusion with the land-lady, she is claiming her rights after her late father and, therefore, in respect of a non-residential building, she was a necessary party. It is, therefore, necessary to ascertain the actual occupation of the shop in question, therefore, issuance of commission is necessary and the application has been incorrectly rejected.

I have considered the submission of learned counsel for the petitioner and perused the record.

It is not in dispute that the Rent Case bearing No.03 of 2010 (Sneh Lata vs. Vijay Kumar) has been filed by the land-lady against respondent No.2-Vijay Kumar, which was allowed by the prescribed authority vide judgment dated 21.10.2014. Subsequently, the Rent Control Appeal No.06 of 2014 (Vijay Kumar vs. Smt.Snehlata) filed by Vijay Kumar against the judgment dated 21.10.2014 was dismissed by the appellate court vide judgment dated 20.12.2017. Both these orders were challenged before this Court by filing Matters U/A 227 No.442 of 2018 (Vijay Kumar vs. Sneh Lata), which was also dismissed vide judgment and order dated 08.02.2018. The aforesaid judgment is quoted as under:

"1- Heard Sri Some Narayan Mishra, learned counsel for the defendant-petitioner and Sri Arvind Srivastava, learned counsel for the plaintiff-respondent.

2- This petition under Article 227 of the Constitution of India, has been filed praying for the following relief:

"I. Set aside the judgment and order dated 20.12.2017 passed by Additional District Judge/FTC Court No.4, Bulandshahar in Rent Control Appeal No.6/2014, Vijay Kumar Vs. Smt. Sneh Lata (Annexure No.13) to the Civil Petition) as well as judgment and order dated 21.10.2014 passed by the prescribed authority in Rent Control Case No.3/2010, Smt. Sneh Lata Vs. Vijay Kumar (Annexure No.10 to the Civil Petition).

II. Issue any writ or direction which this Hon'ble Court deem fit and proper in the facts and circumstances of the case."

3- Briefly stated facts of the present case are that undisputedly, the plaintiff-respondent is the owner and landlady of the disputed shop situate in Mohalla Brahmanpuri, Qasba Dibai, district Bulandshahr, which she had purchased by a registered sale deed dated 5.3.1990 in which the defendant-petitioner is tenant. The plaintiff-respondent/land lady has filed Rent Control Case No.3 of 2010 (Smt. Sneh Lata v. Vijay Kumar), which was decreed by judgment and order dated 21.10.2014 passed by the Prescribed Authority/Civil Judge (Junior Division), Anoopshahar, district Bulandshahar.

4- Aggrieved with the aforesaid judgment and decree, the defendant-petitioner filed Rent Control Appeal No.06 of 2014 (Vijay Kumar v. Smt. Snehlata ), which was dismissed by the Court of Additional District Judge/Fast Track Court (Court No.04), Bulandshahar by judgment dated 20.12.2017.

5- Aggrieved with these two judgments, the defendant-petitioner has filed the present petition.

6- Learned counsel for the defendant-petitioner submits as under:

(i) The plaintiff-respondent/land lady has a building in Anoopshahar, falling under the Municipal limits of Aligarh, and therefore, she cannot be said to be in bonafide need of the disputed shop.

(ii) The fact with regard to the aforesaid property was concealed by the plaintiff-respondent and as such Rent Control Case filed by her was liable to be dismissed.

(iii) Sri Narendra Kumar son of the respondent-land lady is not unemployed. Therefore, it was not lawful for the courts below to release the shop.

(iv) As per Nagar Nigam assessment, the property owned by the plaintiff-land lady at Anoopshahar within the municipal limits of Aligarh, consists of four shops and one room and gallery for which she stated that these four shops are in the form of two godowns. A godown has been let out to one Sri Hridesh Kumar son of Sri Hari Kishun, resident of Nidhivan Colony Quarsi, Aligarh, in the year 2009 at the monthly rent of Rs.1500/- in which Sri Hridesh Kumar keeps shuttering goods.

7- On the basis of these two affidavits and assessment of Nagar Nigam, Aligarh, it is submitted that the plaintiff-landlord has made a false statement before the court below with regard to his bonafide need for establishing his son by starting business in Bulandshahar, whereas she was possessing a property within the municipal limits of Aligarh. It is, therefore, submitted that on this ground alone the release application was liable to be rejected.

8- Sri Arvind Srivastava, learned counsel for the plaintiff-respondent/land lady supports the impugned judgment and submits that the findings recorded by the court below are findings of fact. He submits that there was no concealment of facts. The respondent-land lady wants to establish her son in district Bulandshahar. It was stated by the learned counsel for the plaintiff-respondent/land lady that the property of Aligarh consisting of two godowns, was let out on a monthly rent of Rs.1500/-. The property which has been pointed out by the defendant-petitioner/tenant is situate in another City and it was let out much prior to the filing of the release application filed against the defendant-petitioner.

9- I have carefully considered the submissions of the learned counsels for the parties and perused the records of the writ petition as well as the supplementary affidavit dated 5.2.2018.

10- Undisputedly, the plaintiff-landlady/respondent had purchased the disputed shop by registered sale-deed dated 5.3.1990 in which the defendant-petitioner is a tenant. It is also undisputed that the younger son of the plaintiff-landlady, namely Sri Narendra Kumar holds M.B.A. degree and is an educated unemployed youth. The plaintiff-landlady wants to establish her aforesaid son and for that purpose she had set up her bona fide need for the disputed shop. The courts below have recorded a finding of fact that the aforesaid son of the plaintiff-landlady is an educated unemployed youth and she wants to settle him by starting his own business. This is a finding of fact based on consideration of relevant evidences on record to establish her bonafide need for the disputed shop. It is the choice of a landlady to decide where she wants to settle her son for starting business. A tenant cannot dictate the plaintiff-landlady in this regard.

11- The fact that the plaintiff-landlady owns some property at Anoopshahar cannot be a ground to deny the bona fide need of the plaintiff-landlady for the disputed shop situate at Qasba Debai, Bulandshahar. The findings of fact recorded by the courts below on the point of bona fide need and comparative hardship of the plaintiff-landlady for the disputed shop are the concurrent findings of fact based on consideration of relevant evidences on record and, therefore, it cannot be interfered with in jurisdiction under Article 227 of the Constitution of India.

12- Considering the facts and circumstances of the case, as briefly noted above, I do not find any merit in this petition. Consequently, the petition is, hereby, dismissed."

Submission of learned counsel for the petitioner is that respondent No.2-Vijay Kumar was in collusion with the land-lady and since she is running the shop, therefore, the issuance of commission is necessary.

On perusal of record, I find that the release application was filed in the year 2010 and was contested by Vijay Kumar before the prescribed authority and the order of the prescribed authority was challenged in appeal before the lower appellate court and, therefore, the petition was filed before this Court, which was also dismissed vide judgment and order dated 08.02.2018. The petitioner is coming forward claiming her title under the right of his late father whereas the release application was filed against Vijay Kumar. The sole tenancy of Vijay Kumar was never in dispute.

In such view of the matter, now such application filed at the execution stage by sister of Vijay Kumar, in the opinion of the Court, was rightly rejected. The case relied upon by learned counsel for the petitioner rendered in Writ-A No.43707 of 2003 (Smt.Hajra Begum vs. Mansoor Ali and others) decided on 23.11.2012 is distinguishable on facts.

In view of above, I do not find any good ground to interfere in the impugned judgment dated 04.02.2021, passed by Additional Chief Judicial Magistrate, Anoopshahar (Bulandshahr) in Execution Case No.02 of 2016.

Petition is devoid of merits and is, accordingly, dismissed. No costs.

Order Date :- 12.3.2021

LN Tripathi