Smt. Geeta Shukla And Another vs District Judge Unnao And 2 Others
2022 Latest Caselaw 4701 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
 Judgment reserved on 09.03.2022
 
Judgment delivered on 31.05.2022
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 92 of 2022
 
Petitioner :- Smt. Geeta Shukla And Another
 
Respondent :- District Judge Unnao And 2 Others
 
Counsel for Petitioner :- Adnan Ahmad
 
Counsel for Respondent :- Akber Ahmad,Maria Fatima
 
Hon'ble Mrs. Sangeeta Chandra,J.

(1) The petitioners have prayed for setting aside of order passed by the Prescribed Authority dated 30.10.2021 and also the order passed by the District Judge, Unnao in Rent Appeal No.34 of 2001 dated 20 December 2021. It is the case of the petitioners that their predecessor in interest i e the husband of the Petitioner No.1 and father of Petitioner No.2 Late Surya Narayana Shukla was the tenant of two shops in Bajpai Building Part-B, Rajdhani Marg Shukla Ganj, Unnao, on rent at the rate of Rs.300 and Rs.400 respectively, a total of Rs.700/- per month. A release application was filed by Dr. Deshbandhu Bajpai, the Respondent No.3 regarding the two shops under Section 21(1) a of U.P. Act No.XIII of 1972 . In the said release application the Respondent-Landlord stated that he was running a homeopathic clinic in his ancestral house at Kanpur Nagar but with the passage of time his children had grown and his son and also his daughter had completed their degree course in homoeopathic medicine. He wished to establish an independent clinic in the said shops as his house at Bhusatola Kanpur Nagar, being ancestral, was partitioned amongst three brothers and his present clinic was very small to accommodate him and also his children . It was stated that the two shops being adjacent to each other were appropriate for setting up independent clinic more so when there was sufficient vacant space available on the Southern side of the said shops in Bajpai Building. It was also stated by the Respondent that tenants have a big residential house in Anand Nagar, Shukla Ganj where they can also run their business. In fact the shops are mostly lying closed and the tenants do not do their business from there. The release application was moved on 24.05.2010.

(2) On receiving notice the petitioners appeared and filed a written statement on 30 September 2011. In the written statement the petitioners had admitted the tenancy, the rate of rent and the relationship of landlord and tenant with regard to the shops in question, however, they disputed the contention of the Respondent landlord that he was having bonafide need of the two shops in question. It was also stated that the petitioners have no other means of livelihood except for the two shops in which they run their business as they are situated in commercial area whereas the house of the petitioner is very small, situated in a Gali/Byelane, and nearly 250 m away from the market area which was not suitable for running business. It was also stated that the landlord had not complied with the provisions of Rule 15 Subclause (2) of the U.P. Act No.XIII of 1972 as the release application was not duly verified. It was also stated that the landlord wanted to remove all tenants and demolish all shops and thereafter sell the land by carving out small plots as the land on which the two shops were situated had five other shops also which the landlord had got vacated on similar excuse and now there was enough space with the landlord to set up his independent clinic as alleged by him. Taking into account the said five already vacant shops the landlord would have 54 feet wide land on the roadside which was about 250 feet deep. It was also stated that the petitioners had been regularly depositing rent. Earlier the landlord had tried to dispossess them by moving an application for eviction on the ground of arrears of rent i.e. Rent Case No.5/1999. Such case was dismissed as the petitioners deposited rent before the Learned trial court. Revision No.1/2017 filed by the landlord against such order was pending. The Petitioner No.1 had filed an affidavit in support of their defence mentioning that the shops in question are best suited for running their business and there was no other place for the tenants to shift business as they had earned a good reputation and if they shift their business would suffer and they would face extreme hardship.

(3) It has been argued by the learned counsel for the petitioner that despite such averrments being made in the written statement and in the evidence filed on affidavit by the petitioners, the Learned trial court arbitrarily directed the petitioners to vacate the two shops in question and to hand over peaceful possession within 30 days from the order. Aggrieved by the order dated 30.10.2021 the petitioners filed a Rent Appeal No.34 of 2001, which has also been rejected without appreciating the law as settled by this Court and the Supreme Court with regard to taking into account subsequent events and the satisfaction of the need, if any, of the landlord during the pendency of the release application by other premises becoming available to him.

(4) During the course of argument the learned counsel for the petitioners has pointed out internal Page 4 and 5 of the order passed by the Prescribed Authority where it has been recorded that it was stated before the Prescribed Authority that previously the applicant had filed a P. A. Case No.4 of 2002 which had been decided on 10.09.2009 against one Shankar Lal Agarwal in which the need of the daughter of the applicant was negated as the daughter was married, and could not be considered as a member of the family. It was also stated before the Prescribed Authority that currently only the petitioners are the tenants of the two shops, all other shops had been vacated and the Respondent Landlord had enough space to construct a 25 room clinic on the roadside. There was no bonafide need but only a desire to earn profit by getting the shops vacated and demolished and selling off the land thereafter.

(5) It has been argued that the Prescribed Authority however placed reliance upon judgements rendered in Pratap Rai Tiwari Versus State of U.P. and Others reported in 2004 (57 ALR 644 (SC); and in Mohd. Ayub Versus Mukesh reported in 2012 (1) ARC 48; and Santosh Chaturvedi Versus Kailash Chand and others reported in AIR 2020 Supreme Court 270, which had no application to the facts of the case and held that the landlord's need to set up his son who was a homeopathic doctor in an independent clinic in the premises in question to be a bonafide and genuine need overlooking the facts of the case.

(6) It has also been argued that the Prescribed Authority wrongly came to a conclusion that even if the verification clause had not been duly verified by the landlord still the release application could be entertained placing reliance wrongly upon judgement rendered in Ram Deen Maurya (Dr.) Versus State of U.P. reported in 2009 (6) SCC 735.

(7) It has also been argued by the learned counsel for the petitioners that the Prescribed Authority also failed to appreciate that the comparative hardship to the tenants to move out of the well-settled business premises to a new premises would be much greater than that which would be faced by the landlord who had not yet set up his business at Shukla Ganj, Unnao.

(8) The learned counsel for the petitioners has placed reliance upon judgement rendered by this Court in: -

i) Shri Ram Nath Yadav versus Rent Control and Eviction Officer, Allahabad and others reported in 1995 (2) ARC one (DB);

ii) Mohammed Ibrahim Ansari versus District Judge Orai and another 1995 (2) ARC 526;

iii) Nighat Naseem versus Rajkumar and Another 2006 (4) ARC 185;

iv) Shamim and two others Versus Masjid Nikhatoo Shah and others 2017 (2) ARC 141;

to argue that the word ''family' used in U.P. Act No.XIII of 1972 should not be interpreted with regard to its general meaning as is understood commonly so as to include daughter-in-law or other female relations who are normally considered as members of the family. It should be given a restricted meaning as defined under Section 3 (g) of the Act. It has been argued on the basis of such judgements that the release application filed by the Respondent Landlord could not have been considered to be genuine as it described the need of his daughter who was a homeopathic doctor to set up an independent clinic. Moreover in P.A. Case No.4/2002 decided on 10.09.2009 against Shankar Lal Agarwal the need of The daughter had been negatived as she was not member of the family.

(9) The learned counsel for the petitioners has placed reliance upon-

i) Maqboolunnisa versus Mohammad Saleha Qureshi 1998 (9) SCC585;

ii) Ayodhya Nath Versus District Judge, Almora and another 1999 (2) ARC 323;

iii) Nathuram versus Addl. District Judge Varanasi 2005 (2) ARC 483;

iv) Jai Narayan Khanna Versus IInd Additional District Judge Moradabad 2007 (1) ARC 254;

v) Mohammed Ismail versus Dinkar Vinayak Rao Dorlikar 2009 (10) SCC 193;

vi) Mohanlal and another versus Additional District Judge, Gorakhpur 2014 (2) ARC 211;

To argue that subsequent events can be taken into account by the Appellate Court or the Writ Court to come to its conclusion whether the trial court's judgement warranted interference. The learned counsel for the petitioners has placed reliance upon averments made by him in the supplementary affidavit to the effect that even before the filing of the release application other shops, for example, one held in tenancy of one Shankar Lal Agarwal had also been got vacated by the landlord by the order passed by the Prescribed Authority on 10.09.2009.

(10) On the other hand, the learned counsel for the Respondent landlord has placed reliance upon his Short Counter Affidavit wherein it has been stated that the release application had been preferred by the landlord under section 21(1)(a) of the Act of 1972 on grounds of bonafide personal need of the landlord to establish his own clinic along with his children who had become homeopathic doctors like him. He proposed to start a big clinic cum nursing home/hospital. It had been stated that due to advancement in scientific diagnosis used in Indian system of medicine including ayurveda and homeopathy, bigger space was needed to set up a pathology and x-ray machine also for diagnostics and for setting up hospital beds. It was specifically mentioned that the landlord was running his clinic currently in his ancestral house in Kanpur which had been partitioned amongst three brothers and the space was inadequate for accommodating his children also.

(11) It has been argued by the counsel for the Respondent landlord that the contention that the landlord had no personal need of the shops in question as the shops were situated in a commercial area and best suited for the petitioners attempted to raise an absurd argument that the petitioners were entitled to run their business in the disputed premises more than the landlord who needed it for setting up his clinic cum nursing home/hospital. This was despite the fact that the Respondent No.3 was the owner/landlord of the premises in question, and against the settled law that a landlord is the best judge as to his requirement qua the premises owned by him and it is not for the tenants to preach to the landlord as to how and in what manner he should live or suggest that the premises in question are not suitable for the landlord to set up his business.

(12) The learned counsel for the respondent landlord placed reliance upon the following judgements to buttress his arguments: -

i) Prativa Devi versus T. V. Krishnan (1996) 5 SCC 353;

ii) RC Tamrakar and another versus Nidhi Likha AIR 2000 (1) SCC 3806;

iii) Mohammed Ayub and another Versus Mukesh Jain (2012) 2 SCC 155;

iv) Farooq Laht Tamboli and another versus BS Shankarrao Kokate 2006 (1) ARC 1 ;

v) Raghvendra Kumar versus Firm Prem Machinery and Company (2000) 1 SCC 679;

(13) The learned counsel for the respondent landlord has also pointed out that the release application was preferred by the landlord way back in the year 2010 which was allowed Only on 30.10.2021 by the Prescribed Authority. Thereafter, the petitioners had preferred an Appeal which was decided only on 20.12.2021 by the Appellate Court. During the pendency of the Appeal there was no interim stay of the judgement rendered by the Prescribed Authority. Yet the tenants did not vacate the premises in question. The Appellate Court after appreciation of all evidence and material on record, returned a concurrent finding regarding bonafide need and comparative hardship in favour of the landlord. Despite lapse of more than ten years from the date of filing of the release application by the answering respondent, the petitioners have not bothered to make any efforts whatsoever to find alternative accommodation hence the issue of comparative hardship has been rightly decided in favour of the respondent landlord by the Prescribed Authority and the Appellate Court. The learned counsel for the respondent landlord has placed reliance upon the following judgements to buttress his arguments: -

i) Rishi Kumar Govil Versus Maqsood and and others (2007) 4 SCC 465;

ii) Mohammed Ayub and another versus Mukesh Jain (supra),

iii) Badri Narayan Chunni Lal Bhutada versus Govind Ram Ram Gopal Mandada (2003) 2 SCC 320;

iv) Avinash Chandra and others Versus VII ADJ Ghaziabad and others (1995) 2 UPLBC 1242;

(14) It has been argued that the question of comparative hardship of the landlord vis-a-vis the tenant can be seen taking into account whether during the pendency of the litigation any effort was made by the tenant to find out alternative accommodation and in case the tenant fails to bring on record any genuine efforts made by him to find out such accommodation for running his business, it can safely be presumed that tenant was only interested in keeping the accommodation in question because of meagre amount of rent being paid by him.

(15) It has also been argued in response to the Supplementary Affidavit filed by the petitioners wherein they have mentioned the order passed on 10.09.2009 on another release application moved by the Respondent-landlord, that the earlier application was filed by the respondent landlord for vacation of the shop occupied by Shankar Lal Agarwal was on the need of his daughter and son but the present release application was filed by the Respondent stating that the landlord's clinic situated in Kanpur Nagar was cramped and there was lack of space and he wished to set up a new clinic for himself and his son who was also a homeopathic doctor in the disputed premises at Shukla Ganj, Unnao. As the respondent landlord was running his clinic in Kanpur Nagar for more than 25 years he had sufficient experience to set up a new clinic at Shukla Ganj which had now grown into a busy township where there was no modern homoeopathic clinic cum hospital. In the the recent past due to constant technological advancement in the field of medicine including the field of Indian Systems of Medicine different procedures of general surgery have been introduced into the practice of Ayurveda and Homeopathy, duly recognised by the Ministry of Ayush Government of India and the Central Council of Indian Medicine. Diagnostic methods of modern medicine are now being used by the doctors of Indian Systems of Medicine. A copy of the release application has been filed as annexing to the Short Counter Affidavit to substantiate the claim. Even otherwise both the Learned Courts below have given concurrent findings of fact regarding bonafide need and comparative hardship of the respondent landlord after considering all material on record, as such, the impugned orders do not suffer from any illegality or perversity so as to warrant interference by this court under Article 227 of the Constitution of India.

(16) It has also been argued that the petitioners have not approached this Court with clean hands and have suppressed vital and material facts while filing the petition. In Paragraph-46 of the petition the petitioners have alleged that the issue of verification of release application under Rule 15 subclause (2) of the U.P. Act No.XIII of 1972 has not been properly considered by the Learned Courts below alleging that the release application was defective and ought to have been rejected on this ground alone. Such contention of the petitioners is incorrect as release application was duly supported by an affidavit sworn by the respondent landlord which contained a verification clause pertaining to averments made in the said release application. Such affidavit formed part of the lower court record as Paper No.4Kha. A copy of the Release Application filed in PA Case No.9 of 2010, duly supported by affidavit or the respondent landlord has been filed as an Annexure-1 to the Short Counter Affidavit.

(17) It has been argued by the learned counsel for the respondent landlord that a person who approaches the court for grant of equitable relief must disclose all material facts which have a bearing on the adjudication of the issues involved. The petitioners should refrain from concealing or suppressing any material fact. The learned counsel for the respondent landlord has referred to judgements rendered in Oswal Fats and Oils Ltd. Versus Additional Commissioner (Administrative) Bareilly Division (2010) 4 SCC 728; K.D. Sharma versus Steel Authority of India Ltd. and others (2008) 12 SCC 481, and Welcome Hotel and Others Versus State of Andhra Pradesh and Others A I R 1983 Supreme Court 1015, to say that relief can be denied to a litigant who is found guilty of suppressing or concealing material facts from the Court. It is also not the discretion of the litigant to decide as to what facts or material for consideration before the court. He is under an obligation to disclose all facts of a case and leave the decision making to the court and if the litigant does not come with clean hands to the Court he cannot be granted any relief under Writ jurisdiction. The learned counsel for the respondent landlord has placed reliance upon i) Bhaskar Laxman Jadhav and others versus Karamveer Kaka Sahib Wagh Education Society and others (2013) 11 SCC 523 and ii) Ramjas Foundation and Another Versus Union of India and others (2010) 14 SCC 38.

(18) It has further been argued that even otherwise the alleged non-verification of the averments contained in the Release Application and the alleged non-compliance of Rule-15 Subclause (2) of U.P. Act No.XIII of 1972 was duly considered by the Learned Trial Court and the Appellate Court and it was found that it is a procedural defect which was curable in nature and could not lead to automatic dismissal of the Release Application which stemmed from bonafide need of the landlord. Non-compliance with any procedural requirement relating to pleadings may not result in automatic dismissal of any application/petition as rules of procedure are handmaidens of justice as has been held by the Supreme Court in the case of i) Uday Shankar Triyar versus RamKalewar Prasad Singh (2006) 1 SCC 75 and in ii) Sushil Kumar Singh versus State of Bihar (1975) 1 SCC 774, and also in the case of iii) Lal Bahadur versus Ritesh Pandey 2021 (10) ADJ 539. As per Order 6 Rule-15 Subclause (4) of the CPC (brought in by way of Amendment in 1999), the person verifying the pleadings shall also furnish an affidavit in support of his pleadings which was done by the respondent landlord in support of his release application, which affidavit was taken on record as Paper No.4 Kha. In the affidavit filed by the landlord it had been clearly stated that the clinic that he had in Bhusha Toli ancestral house was very small, i.e. a room of 10 ix10 feet only, which was cramped. The shops that had earlier been got vacated by the respondent landlord from Shankarlal Agarwal and Mallik Transport were very old, and had therefore been demolished to facilitate new construction. The two shops which the petitioners were occupying were adjacent to each other and by suitable alteration being made therein they could be utilised easily and by taking the two shops as well as the vacant land a big clinic cum hospital could be set up for with modern diagnostic facilities and indoor patients facilities also. If such a clinic is set up then not only the respondent landlord but also his son could find suitable employment.

(19) In response to the arguments made by the learned counsel for the landlord, the learned counsel for the petitioners has submitted that one shop which was vacated by order dated 10.09.2009 has not been used till date for establishment of clinic by the landlord. On the other hand shops which had been constructed during the pendency of the release application have been offered in the open market by the landlord for rent. The daughter of the landlord has now been married and subsequent events ought to have been taken into account by the Appellate Court. It is the landlords ''desire'' and not his need to get the shops in question vacated to construct new shops and to give them on higher rent. It is the desire to earn more profit which has led him to move the release application and not his bonafide need.

(20) Having heard the learned counsel for the parties this court has perused the orders impugned. In the order passed by the Prescribed Authority dated 30.10.2021, the Learned trial court has mentioned the facts as given in the release application and the averments made in the Written Statement and documentary evidence filed by both the parties. The trial court has also considered the evidence filed in the form of affidavits by both parties and then determine the points of determination regarding bonafide need. The Prescribed Authority found that the tenants were in possession of two shops at the rate of Rs.700 per month. The applicant was a doctor, his children had also acquired degrees in homeopathy. He wished to establish a hospital in the shops for himself and his son. The tenants had a house in Anand Nagar Shukla Ganj, where they could carry on their business and they were not carrying out any business at present from the said two shops as such they would not face any hardship in the getting the same. The applicant on the other hand by starting his own hospital would provide employment not only to his son but also would get proper return for his experience and education. The Prescribed Authority thereafter considered the Commission Report Paper No.57C2 wherein it was stated that the applicant wanted to construct a hospital on the whole premises and due to non-vacation of the shops by the tenants he was unable to raise any construction for his hospital for the past 20 years. The Commissioner's map showed disputed shops and vacant land adjacent to them. Educational certificates of the petitioner, his son and daughter showed that they were sufficiently qualified as doctors who could set up their own clinic/hospital. The Prescribed Authority considered the defence put up by the Tenants that the landlord did not have any need to set up another clinic in Shukla Ganj while he had already got one established clinic in Kanpur Nagar, and that the tenants were carrying on their small business from the two shops and they would be facing great hardships if they were asked to work at the shops. The Prescribed Authority thereafter observed that it is well-established that the need of the landlord cannot be dictated by the tenant and the landlord is the best judge of his needs. Only he can say from which shop, his need would be satisfied and in spite of having other vacant shops, he cannot be forced to fall back on them or in the alternative, on vacant land appertenant to such vacant shops. The Prescribed Authority thereafter relied upon Pratap Rai Tiwari and Others Versus State of U.P. (Supra), Mohammed Ayub versus Mukesh Chand (supra) and Santosh Chaturvedi versus Kailash Chand and others (supra), to say that if the landlord wanted the premises for his son's settlement, it could certainly be considered a bonafide need of the landlord. With regard to verification clause not been duly filled up, the Prescribed Authority relied upon judgement rendered by the Supreme Court in the case of Ram Deen Maurya (supra) to say that procedural rules are the handmaiden of Justice and if the statute does not mention the consequence of non-compliance of a procedural rules, then it should be treated as directory. With regard to the question of comparative hardship the Prescribed Authority observed that it is the right of every adult member of the landlord''s family to start his independent business for his own income and to maintain himself and his own family. The settlement of unemployed son/offspring has always been held to be a bonafide indeed, and in spite of having several other premises, the landlord cannot be forced to forego his need for a particular shop to set up independent business of his own. It was observed that in spite of having knowledge of the release application having been filed, the tenants had not looked for any alternative accommodation and therefore the issue of comparative hardship can be safely assumed to be greater for the landlord than for the tenant. The Prescribed Authority thereafter allowed the application for release and directed the tenants to vacate the shops in question within 30 days from the date of the order.

(21) This Court has also perused the order passed by the District Judge in Rent Appeal No.34 Of 2021. The Appellate Court has considered the facts as mentioned in the Prescribed Authority's order as also the grounds of Appeal raised by the tenants that just adjacent to the two shops in question there were five shops of the landlord which had been vacated by other tenants, for example, Shankarlal Agarwal, and there was a godown rented by Mallik Transport which had also been vacated and on the first floor of all such shops, there was residential accommodation and behind the said shops, nearly 1000 yd.² of land was lying vacant. In the entire Bajpai Building Part-B, only the two shops that were rented out to Appellants were occupied. Rest of the shops and godowns had been lying vacant. The respondent landlord had enough space to construct a big Clinic cum Hospital of 25 rooms. The respondent landlord did not wish to establish clinic, in fact, he wished to get the shops vacated and to sell off the land. In homoeopathy there was no need to set up a hospital with indoor or diagnostic facilities. The respondent landlord had already well-established clinic of over 25 years in Kanpur Nagar, and being more than 65 years of age he would not have the energy and strength to establish a new clinic in a new place like Shukla Ganj, Unnao. The tenants house at Anand Nagar, Shukla Ganj was situated in a very narrow Bylane which could not be used for commercial purposes. The Appellate Court thereafter considered the documentary evidence filed both by the tenants and the respondent landlord and considered the averments made on affidavit by the respondent landlord in support of his release application. The Appellate Court also considered the ground taken by the tenants that the building in question belonged to the father of Dr. Desh Bandhu Bajpai who had three sons and all three sons were the joint owners of the property in question, but they had not been arrayed as parties to the Release Application thus the release application was liable to be rejected on grounds of non-impleadment of necessary parties. The Appellate Court also considered the tenants argument that the respondent landlord had also filed the Case No.4 of 2002 against Shankarlal Agarwal for vacating of the shop in his possession on the ground that his daughter and his son had both become homoeopathic doctors, and he needed the shop to establish their clinic. The said release application was decided in favour of the landlord, but the Learned court had also observed that the need of the daughter could not be considered as she was not a member of the family. Even after vacation of such shops and other adjacent shops and having nearly 10,000 m² of land the respondent landlord had not constructed the clinic cum hospital. The respondent landlord had stated before the Learned trial court that he wished to construct a nursing home/hospital but he had not submitted any approved building plan of the concerned department and therefore his reason for getting the shops vacated from the tenants did not appear to be genuine.

(22) The Appellate Court thereafter framed Points for determination in the appeal. He considered whether the release application was Not maintainable as having not complied with Rule 15 Subclause (2) of the Rules framed under the Act of 1972. The Appellate Court also considered whether the Need of the son of the landlord was bonafide and also considered whether the non-impleadment of other Brothers said to be joint owners of the property in question by the respondent landlord vitiated the release application. The Appellate Court has considered whether the provisions contained in Rule 15 Subclause (2) were mandatory in nature and found that since the provision did not carry any sanction for its violation it was apparently only directory. Moreover the Release Application was supported by a duly sworn affidavit of the landlord. Similarly while considering whether the property in question was joint property of three brothers who had not been arrayed as parties, it was found by the Appellate Court that the tenants had not filed any evidence before the Prescribed Authority, or even before the Appellate Court to show that the property in question was jointly owned. Moreover in a suit for eviction of the tenant, declaration regarding ownership was not in question. The tenants had admitted Dr Deshbandhu Bajpai to be the landlord. No further enquiry was necessary with regard to the ownership of the property in question. With regard to the need of the son of the respondent landlord the Appellate Court found that he had obtained a degree in homeopathy from Calcutta and he was not employed elsewhere. Since the house at Bhusa Toli Kanpur Nagar was ancestral and partitioned amongst three Brothers, the clinic of the respondent landlord situated therein was small and cramped. The two shops in the tenancy of the appellants were adjacent to each other and by carrying out minimal alterations in construction they could be used along with adjacent shops and land to establish independent clinic cum hospital without huge expenses being incurred. The Appellate Court also considered the argument of the tenants that adjacent to the two shops in which they were running their business, there were five other shops and huge appurtenant land which were lying vacant, where clinic and hospital of the landlord could be established. The Appellate Court found on the basis of judgements relied upon by the Prescribed Authority that it is not for the tenants to suggest to the landlord as to how he had to carry on his business and settle his financial affairs. The landlord is the best judge of his need and how it could be satisfied. It is also not for the court to suggest as to how the landlord must carry on his business or settle his son in employment. The Appellate Court considered judgements cited by the tenants i.e. Mohanlal Agarwal versus Girish Kumar Chaturvedi 2008(73) ALR 444 of this Court and Alka Gupta versus Narendra Kumar Gupta 2011 (1) CAR 187 (Supreme Court) but found the facts of such cases completely different and inapplicable in the facts of the Appeal before him. The appeal was consequently dismissed and the order passed by the Prescribed Authority dated 30.10.2021 was affirmed By the District Judge by his judgement and order dated 20.12.2021.

23. Now this court shall consider the case law that has been relied upon by the learned counsel for the parties. There is no doubt about a daughter not being treated to be a member of the family in the Definition clause given under 3g of UP Act number 13 of 1972. The need of daughter of the respondent landlord alone had not been pleaded by the respondent landlord before the Prescribed Authority. Hence judgements that have been cited with regard to the definition of family by the learned counsel for the petitioners seem to be of no help to him.

24. With regard to judgements regarding subsequent developments to be take a note of by the Court while considering release application, this court has carefully perused Maqboolunnisa(supra) where the Supreme Court observed that during the pendency of the release application a shop adjacent to the demised premises had fallen vacant and the appellant had not amended the pleadings to assert that the shop which had been vacated by the other tenant was not sufficient for her to shift her business. The Supreme Court observed that such evidence should not have been allowed to be led in appeal since it was beyond the pleadings. However it dismissed the appeal of the Landlady on a finding that the desire to have a very large shop cannot be equated with a genuine bonafide need to have the premises. The need of the landlady as shown before the trial court was for shifting of Embroidery business of her son. Clearly the need to establish a clinic cum hospital as expressed by the respondent landlord who was a doctor for himself and his unemployed doctor, son, required a larger property.

25. In Ayodhya Nath (supra) the counsel for the tenant has placed reliance upon the fact that during the pendency of the Release Application another shop had been vacated. This Court placed reliance upon Supreme Court''s observations and held that the landlord must explain and the court must consider whether the accommodation which became available during the pendency of the revision application was adequate and whether it was Suitable or not for the purpose of landlord for which the Release Application was filed. The Learned Courts below had not applied their mind to this fact whether the accommodation was adequate and suitable, and whether in case it was occupied by the landlord, the need of the landlord would be satisfied. It therefore remanded the matter for fresh consideration.

26. In Natthu Ram (supra) the Landlady had three shops in a row. One shop was occupied by her son. The second shop was occupied by the tenant petitioner and the third shop was occupied by another tenant. During the release application filed by the landlady the other tenant vacated the shop in his possession. The court observed that even if both shops had been in possession of one and the same tenant, the court would have been obliged to consider as to whether release of one shop would satisfy the need of the landlord or not. It was the subjective opinion of the court, the other shop having become vacant the landlords need was more or less satisfied. The facts of the said case are distinguishable from that of the instant case. In the case of Nathuram(supra) the landlord had applied for release of shop adjacent to the shop of his son who was running a business of foodgrains to run his business properly.

27. In Jai Narayan Khanna (supra) this court was considering eviction proceedings initiated by the original landlord Kashmiri Lal that he required the shop in dispute for settling his son Shyam Sundar in independent business. The court observed that every landlord is entitled to settle his son in independent business. He cannot be compelled to accommodate his son in the business which is being run by him as held by the Supreme Court in the case of Sushila versus ADJ AIR 2003 Supreme Court 780 and in A Kumar versus Mustakim AIR 2003 Supreme Court 532.

This court had however considered subsequent events brought on record through supplementary affidavit by the tenant petitioner that the original landlord had died and was substituted by his widow and two sons. It was stated that Shyamsundar for whom the release of the shop in question was sought by the landlord was now using the shop of his father after his death. Moreover Shyamsundar had taken on rent another shop in another locality where he was carrying on the same business of selling cloth. In the counter affidavit filed by the landlords it was stated that the landlord had two sons Shyam Sunder and Suraj Bajaj it was Suraj Bajaj who was running several businesses including one of a finance company and from the income whereof he had constructed a commercial complex containing 20 to 25 shops. This Court observed that it appeared to be most strange that all the aforesaid businesses were being run by only one brother Suraj Bajaj and the other brother Shyam Sundar was just waiting for vacation of the shop in dispute to start his business. The court relied upon judgement rendered by the Supreme Court in the case of Sk Sattar Sk Mohd. Chaudhri versus Gundappa Ambodas Bukate AIR 1997 Supreme Court 998 , that a family arrangement brought into existence only for the creation of ground on which the tenant can be evicted has to be ignored by the court. The said judgement was followed in M/S Karta Ram Rameshwar Das vs. Ram Bilas AIR 2006 Supreme Court 362; where the same principle was applied by the court to reject the plea taken by the landlords that every available shop was being used by only one brother that is Suraj Bajaj and Shyam Sundar could not have any right over the said shops built by Suraj Bajaj, however he had full right to use the shop left behind by his father to his mother. Accordingly, the subsequent event of availability of the shop in which the original landlord was doing business to Shyamsundar, during the pendency of the writ petition after the death of the original landlord, had changed the scenario which subsequent development was taken into consideration by the court and the petition was allowed but the rent being paid by the tenant petitioner was enhanced to current market rate as the shop in question was situated at Station Road Moradabad.

28. In Mohamed Ismail (supra) the Supreme Court was considering the tenants appeal in respect of a shop measuring 10 feet into 26 feet which was in his possession for the past 20 years on a monthly rent of Rs.600. After two rounds of litigation where the matter was remanded by the High Court and the subordinate court again dismissed the appeal, another writ petition was filed by the tenant which was dismissed on the finding that the respondent had successfully proved his bonafide requirement of the shop in question. Special Leave Petition was thereafter filed. The Supreme Court considered the pleading that the need of the respondent of the shop in question had become non-existent as during the proceedings the respondent had constructed two shops. The need pleaded by the respondent for starting a business for one of his sons who was now dead, and another son who was absconding could not be accepted. The Court noticed that one of the sons had expired and his second son had absconded for the past several years. Then the landlord in the meantime had also constructed two shops where he was carrying on his business of Kirana. Another tenant who was in possession of another shop had vacated that shop and a third son had been running his independent business in the said shop. It was under the circumstances that the appeal was allowed and the matter was remanded to the High Court for decision of fresh in the light of subsequent events.

29. In Mohanlal (supra) this court was considering a dispute relating to shops situated in Gorakhpur City. Three sons of one Mewa Lal Gupta had preferred an application under Section 21 (1) (a) of the Act of 1972 saying that their father was running a sweetmeat shop. Earlier the family was joint but with the passage of time and increase of members of the family, the father had separated the sons and their businesses and occupations. The petitioners had purchased a house where on the ground floor there were four shops, they were in the tenancy of Mohanlal and two other tenants. The landlords Rakesh and Rajesh, both required the two shops under the tenancy of Mohanlal and one Zaheer, for commencing their own business. It was stated by the tenants that besides the two shops in dispute, the landlords had several other properties where they could conveniently run their business. However, the Prescribed Authority found that most of the properties which were pointed out by the tenants were not available to the landlords but actually belonged to their father Mewa Lal who was running his business therein. The Prescribed Authority found that the sons having separated and wanting to settle themselves independently, in their own business, their need could not be clubbed with the resources of their father. the requirement of sons, who are landlords in respect of the property in dispute, independently will have to be considered in their own right. During the pendency of the writ petition it was admitted by the parties that Mewa Lal had died intestate and his entire property had devolved upon his legal heirs, i.e. his widow and sons, who were the applicant landlords. The properties and shops owned and possessed by Mewa Lal had now become available jointly to the applicant landlords along with their mother. Therefore with the availability of various other properties and shops to the applicant landlords their need stood satisfied. The question as to under what circumstances subsequent events can be looked into was considered by this court. This Court placed reliance upon judgement rendered by the Supreme Court in the case of Pasupuleti Venkateshwaralu versus Motor and General Traders 1975 (1) SCC 770, where the court observed that -"...for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed "

The court also placed reliance upon Hasmat Rai versus Raghunath Prasad 1981 (3) SCC 103;, where cognizance of subsequent events was held permissible provided it wholly satisfied the requirement of the petitioner landlord who had petitioned for eviction on the ground of personal requirement. The court had observed - "where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order of eviction is made. If in the meantime events have cropped up which would show that the landlords requirement is wholly satisfied, then in that case his action must fail ,---

The court also placed reliance upon Ramesh Kumar versus Keshavram 1992 Supplement (2) SCC 623, where the court had observed that "the normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as it obtained at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of facts or law which have a material bearing on the entitlement of the parties to the lis or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a cautious cognizance of the subsequent changes of fact and law to mould the relief ."

30. In Gaya Prasad versus Pradeep Srivastava 2001 (1) ARC 352 (SC), the court had said that for the malady of judicial system of delayed justice, a landlord should not suffer. "Every subsequent development would not deny the claim of the landlord. It may happen that the lifetime of litigation maybe more than that of the litigant landlord himself. Therefore, the judicial tardiness should not cause an irreparable loss to the landlord. It would be unjust to shut the door of justice to a landlord on the end of litigation after passing through various levels of litigation and to deny him Justice and relief sought only on the ground of certain developments that occurred pendente lite because the tenant has been successful in prolonging litigation for an unduly long period. However, if the cause of action is submerged in such subsequent events, in other words, if subsequent events are such as to satisfy the very requirement of the landlord in its entirety, the same can be seen and there is no allergy in considering and taking note of subsequent events of importance which may justify the moulding of relief not on account of mere pendency of litigation but on account of the position and status of landlord and other relevant factors.

31. This Court has also considered judgement rendered in Kedarnath Agarwal and another versus Dhanraji Devi and another 2004 (4) AWC3709 (SC), where the Supreme Court considered a number of authorities on the subject and observed in paragraph 16 that subsequent events can be taken note of by a court of law in three circumstances: -

"i)the relief claim to originally has, by reason of subsequent change of circumstances, become inappropriate; or

ii) it is necessary to take notice of subsequent events in order to shorten litigation; or

iii) it is necessary to do so in order to do complete justice between the parties. ..."

32. Having considered the case law as cited by the learned counsel for the petitioners with regard to whether this court in a petition under Article 227 of the Constitution is entitled to consider subsequent events to mould the relief accordingly.; this court finds that all the judgements that have been relied upon by the learned counsel for the petitioners related to professed need of the landlord to establish a new business or to expand existing business in the shop sought to be vacated. None of the judgements as cited hereinabove have referred to the professed need of a landlord like the respondent number 3 herein, who wished to demolish the entire structure and to construct a big clinic cum nursing home with diagnostic and other facilities for indoor patients. It is the contention of the petitioners that the landlord is a homeopathic doctor and his son is also a homeopathic doctor and therefore there was no need to establish a clinic cum hospital. It has also been argued that the landlord was more than 65 years of age and therefore incapable in terms of energy and strength to establish new clinic eight to ten km away from his existing clinic. This contention of the petitioners is liable to be rejected as the law is well settled that it is for the landlord to decide How and in what manner he should live and carry out his business and manage his affairs.

33. In deciding the question of bonafide requirement, it is unnecessary for the Court to make an endeavour to find out as to how else the landlord could have adjusted himself. The landlord has complete freedom in the matter and the court cannot dictate to the landlord as to how he should settle his financial affairs and survive on a meagre income when he can generate more income by establishing a clinic cum nursing home in the premises in question. It has been the case of the landlord that he wishes to ultimately demolish existing structure and build a new clinic cum nursing home as his clinic in his ancestral home in Kanpur was small and cramped . In the meantime he would make minor alterations in the two shops which are adjacent to each other and start his clinic with the help of his doctor son. It has also been the case of the landlord that the five shops that were vacated in the meantime were old constructions which needed to be demolished to enable him to set up his new clinic cum Nursing home. It is not unknown for many businessmen to establish nursing homes/ hospitals which may be run with the help of a team of qualified doctors.

34. The Supreme Court in the case of Dattatreya Lakshman Kamble versus Abdul Rasul Maulali Kotkune AIR 1999 Supreme Court 2226; and in the case of G. C. Kapoor versus Nand Kumar Bhasin 2002 (1) SCC 610; has held that it is not necessary for the landlord to show prior experience of a particular business nor is it necessary for them to show that the landlords have sufficient financial capacity to start the proposed business. It has been held by the Supreme Court in the case of G. Kaushalya Devi versus Ghanshyam Das AIR 2000 Supreme Court 656 that even if a tenanted shop becomes available to the landlord which was vacated during the pendency of litigation it cannot be taken into consideration while deciding bonafide need.

35. This Court has considered also the agreement of the learned counsel for the petitioners regarding availability of the shops in the building in question to the respondent, landlord during the pendency of the litigation and finds such availability as insufficient to the landlords professed requirement of setting up a nursing home and hospital as professed by his before the learned courts below.

36. In Mohammed Ayub and another versus Mukesh Jain 2012 (2) SCC 155, the Supreme Court relied upon judgement rendered by it in Ganga Devi versus District Judge Nainital 2008 (7) SCC 770, to say that comparative hardship indisputably is a relevant factor for determining the question as to whether the requirement of the landlord is bonafide or not within the meaning of the provisions of the UP Act and the Rules, and it is essentially a question of fact. The Supreme Court had observed that Rule 16 provides for some factors which are required to be taken into consideration. It had clarified however that the court would not determine the question only on the basis of sympathy or sentiment. The court further observed that there was an additional circumstance that needed to be considered which was that the tenant had not brought on record any material to indicate that at any time during the pendency of long drawn litigation he had made any attempt to seek an alternative accommodation and was unable to get it. In Ganga Devi(supra) the Supreme Court also clarified that the length of the period of tenancy as provided under clause (a) of sub- rule (2) of Rule 16 of the Rules framed under the UP Act is only one of the factors to be taken into account in context with other factors and circumstances of the case and cannot be the sole criterion or the deciding factor to order or not the eviction.

The Supreme Court observed in paragraph 15 thus:- "It is well settled that the landlords 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 is for the landlord to decide which business he wants to do. The court cannot advise him. - - -".

It went on to observe that "the tenant did not make any arrangements for alternative accommodation during the pendency of the litigation. Even if the landlord being more affluent could have purchased another building, still he was entitled for vacant possession of his premises under dispute.The lower courts ought not to have given importance to the length of tenancy of the respondent tenant. The hardship that the appellant landlord would suffer by not occupying his own premises would be far greater than the hardship the respondent tenant would suffer by having to move out to another place..."

37. This Court finds after due consideration of all materials placed on record that Neither before the Prescribed Authority nor before the Appellate Court, the petitioners have placed any material on record to show that they have made any effort from the date of filing of the release application nor during pendency of the same for finding out an alternative accommodation in Shukla Ganj, Unnao to set up their business. Hence the question of comparative hardship has to be decided against them in view of the observations made by the Supreme Court in B C Bhutada versus GR Mundada(supra) And in Mohd Ayub(supra).

38. This Court has carefully considered the judgement of the Prescribed Authority and also of the Appellate Authority and finds that they suffer from no illegality or perversity to warrant interference in inherited jurisdiction that it exercises under Article 227 of the Constitution. The petition lacks merit and is dismissed. The petitioners shall handover vacant and peaceful possession of the two shops in their possession to the respondent, landlord, within two months from today. The landlord shall give two years rent as compensation to the tenants as the shops in question are commercial premises in terms of the Rules.

 
Order Date:31.05.2022
 
DARPAN/PAL			      [Justice Sangeeta Chandra]