Shrawan Srivastava And Another vs Smt.Shimla Devi (Dead) And 10 ...
2023 Latest Caselaw 14356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:98377
 
Judgment Reserved on 28.04.2023
 
Judgment Delivered on 08.05.2023
 
Court No. - 10
 

 
Case :- WRIT - A No. - 6755 of 2023
 

 
Petitioner :- Shrawan Srivastava And Another
 
Respondent :- Smt.Shimla Devi (Dead) And 10 Others
 
Counsel for Petitioner :- Anand Prakash Mishra,Shachindra Kumar Mishra
 
Counsel for Respondent :- Saurabh Raj Srivastava
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the tenants-petitioners and learned counsel for the landlord-respondent on the admission of the writ petition and perused the record on board.

2. The tenants-petitioners have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by assailing the judgment dated 09.12.2022 passed by the Sessions Judge, Allahabad in Rent Control Appeal No. 9 of 2022 affirming the judgment and order dated 25.05.2022 passed by the Prescribed Authority/Judge Small Causes Court, Allahabad in P.A. Case No. 40 of 2006.

3. Facts culled out from the averments made in the writ petition are that Smt. Shimla Devi (landlady) had moved an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the shop in question on the ground that she has two sons, namely, Pushpendra Narayan and Prashant Srivastava; both the sons are unemployed; Pushpendra Narayan is engaged in stationary business carrying on in the room (shop) adjacent to the shop in question towards east side; however, second son of the applicant is sitting idle, therefore there is urgent need of the shop in question to establish the second son, namely, Prashant Srivastava. The tenants-petitioners have filed their written statement denying the averments as made in the application under Section 21(1)(a) of Act No. 13 of 1972. During pendency of the case landlady Smt. Shimla Devi, who had moved the application, has died leaving behind her aforesaid two sons. She has executed a registered will deed, wherein house in question i.e. 55/65 Khuldabad, Allahabad has been bequeathed in favour of Prashant Srivastava. In this backdrop of the subsequent event, wherein landlady has died and she has executed a will deed in respect of the house in question in favour of Prashant Srivatava, tenants-petitioners have pleaded that there is no bonafide need for the landlord considering the fact that one son namely Pushpendra Narayan has been given property at some other place and Prashand Srivastava has been given the property in question i.e. 55/65 Khuldabad, Allahabad, therefore, he has no urgent need of the shop in question. Learned trial court has framed as many as two issues with respect to the bonafide need of the landlord and comparative hardship. Both the issues were decided in favour of the landlord. On appeal being filed on behalf of the tenant, the appellate court has dismissed the same affirming the order passed by the trial court. Having been aggrieved against the judgment passed by both the Small Causes Court, instant writ petition has been filed on behalf of tenants.

4. Learned counsel for the petitioners submits that the affidavit filed on behalf of the petitioner no. 1 with an averment that Pushpendra Narayan elder son of Smt. Shimla Devi is already shifted to another house i.e. House No. 131/288A Nihalpur, Allahabad and the present house in question has finally come into the possession of Prashant Srivastava, for whom bonafide need has been shown, has not properly been considered and appreciated by the courts below. It is further submitted that as per the recital made in the will deed the elder son Pushpendra Narayan is already shifted to another house and he is running a business in a shop at Gaughat, Allahabad. It is further submitted that entire house is in the possession of Prashant Srivastava, which also includes the shop which is situated adjacent to the shop of the present petitioner, wherein Pushpendra Narayan was running his business. It is further submitted that in light of the subsequent event, the landlord has no bonafide need of the shop in question, therefore, release application should be rejected in limine. It is next contended that both the impugned orders passed by the courts below are liable to be quashed being illegal, unwarranted under the law and tainted with irregularities.

5. Learned counsel for the landlord has submitted that bonafide need and comparative hardship is concluded by concurrent findings of fact returned by both the courts. It is further contended that subsequent development, occurred after the death of landlady Smt. Shimla Devi, has properly been considered by both the courts below, therefore, no interference is warranted by this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.

6. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it reveals that the applicant Smt. Shimla Devi was the owner/landlady of House No. 55/65 Khuldabad, Allahabad and the present petitioners are joint tenants of one-door shop, measuring area 8X15 feet, facing G.T. Road, Allahabad on the ground floor of the aforesaid house and another backside room of the said shop on the rent at the rate of Rs. 100/- per month with water tax at the rate of Rs. 10/- per mensem. The applicant has shown is bonafide need to establish his younger son, namely, Prashant Srivastava who is unemployed. During pendency of the case, due to the death of landlady namely Smt. Shimla Devi, tenants-petitioners have raised a serious objection qua bonafide need of the landlord on the ground that Prashant Srivastava, for whom shop in question has been sought to be released, has become owner of the building in question i.e. building no. 55/65, Khuldabad, Allahabad and he can run his business in another shop situates in the same building besides the shop in question. In deciding the bonafide need and comparative hardship, learned trial court has discussed all the averments as made on behalf of the parties and came to the conclusion that bonafide need of the landlord for Prashant Srivastava still exists, therefore, shop in question is liable to be vacated. Plea as raised by the tenants-petitioners with respect to the establishment of the elder son, namely, Pushpendra Narayan has been considered as well, who has allegedly been established separately in house no. 131/288A, Nihalpur, Pargana & Tehsil Sadar, District Allahabad (Prayagraj). Even assuming for the shake of argument that Pushpendra Narayan is established in another house other than the building in question, however, there is no evidence on record to prove that elder son Pushpendra Narayan has vacated the shop which was in his possession in the building in question at the life time of his mother. In paragraph no. 6 of the application it has categorically been stated by the applicant that Pushpendra Narayan is engaged in stationary business in the shop situate in the same building adjacent to the shop in question. The tenants have made evasive denial of paragraph no. 6 of the application in paragraph no. 6 of his written statement. In fact, they have admitted running business of stationary belongs to elder son Pushpendra Narayan. They have averred in the written statement that due to the business rivalry landlady wants to evict the defendants-petitioners from the shop in question. In light of the averment as made in paragraph no. 6 of the application, which has not been denied even at subsequent stage, it cannot be said that the shop which was in possession of Pushpendra Narayan is now vacant and available for the younger son, namely, Prashant Srivastava to run his business. The appellate court has given a categorical finding that there is no evidence on record to prove the availability of any type of employment to Prashant Srivastava, who wants to run a business for his livelihood. It is also observed by the learned appellate court that there is no alternative shop available to Prashant Srivastava to run his business.

7. After the death of landlady Smt. Shimla Devi, in the changed circumstances of the present case, it cannot be said that bonafide need, as claimed by the landlord, is fanciful and whimsical desire of landlord. Prima facie, bonafide need of the landlord is persistent and manifested. No evidence has been adduced on behalf of the tenants to prove that elder son of the landlady, namely, Pushpendra Narayan has vacated the shop situated in the building no. 55/65 and shifted his business to some other place. In absence of any evidence, there is no finding returned by any court denying the possession of Pushpendra Narayan over the shop, which is situated adjacent to the shop of the petitioners in the building no. 55/65. Prima facie, it appears that the petitioners are speculating availability of alternative shop based on will deed bequeathed by Smt. Shimla Devi by which building no. 55/65 has been accorded to Prashant Srivastava. Receiving the accommodation in question, being a successor through will, is something different than the availability of space for the purposes of running business. Devolution of building no. 55/65 in favour of Prashant Srivastava (now landlord/respondent) is an admitted position, however, availability of another shop situates on the ground floor adjacent to the shop of the petitioners, wherein elder son Pushpendra Narayan is running his stationary business, is disputed. Relying upon the recital made in the will deed qua providing an accommodation to Pushpendra Narayan, the tenants-petitioners have not adduced any unimpeachable evidence to prove that Pushpendra Narayan has vacated the shop which situates besides the shop of petitioners and shifted his business at some other place.

8. Learned counsel for the landlord-respondent has emphasized the inaction at the part of the tenants/petitioners, who have not made any effort to search an alternative shop to shift their business. The release application was filed in the month of November, 2006 and same was finally decided in the month of May, 2022. However, the petitioners have not adduced any evidence to show their sincerity and bonafide to prove that they have made sincere efforts for alternative shop to run their business. Such reluctance and inaction at the part of the tenants goes against their bonafide. Being tenants they cannot dictate the terms to the landlord as to how he manage his living.

9. In this conspectus, as above, I am of the considered view that the landlord has successfully proved his bonafide need which, prima facie, appears to be genuine, honest and conceived in good faith. Appellate court has returned finding of fact that Prashant Srivastava son of landlady is still unemployed and he is in urgent need of shop to run a business for his livelihood. Considering the need of the landlord, comparative hardship tilted towards him and, accordingly, the shop in question deserves to be released in his favour. Both the courts have rightly upheld the bonafide need and comparative hardship in favour of the landlord. I did not find any justifiable ground to interfere in the impugned orders under challenge in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. There is nothing on record to demonstrate as if there is any likelihood of causing miscarriage of justice to them owing to the orders under challenge. There is no illegality, perversity and ambiguity in the impugned orders so as to entertain the instant writ petition.

Resultantly, instant writ petition, being devoid on merits and misconceived, is dismissed with no order as to costs.

Order Date:-08.05.2023

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