Mukesh Chandra Agarwal vs Smt Kamlesh Jain
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Allahabad High Court

Mukesh Chandra Agarwal vs Smt Kamlesh Jain on 12 November, 2024

Author: Ajit Kumar

Bench: Ajit Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:177617
 
Court No. - 4
 
Case :- WRIT - A No. - 16434 of 2024
 
Petitioner :- Mukesh Chandra Agarwal
 
Respondent :- Smt Kamlesh Jain
 
Counsel for Petitioner :- Rama Goel Bansal,Shalini Goel
 
Counsel for Respondent :- Shreya Gupta
 

 
Hon'ble Ajit Kumar,J.
 

1. Heard Ms. Rama Goel Bansal, learned counsel for the petitioner as well as Ms. Shreya Gupta, learned counsel for the respondent landlady.

2. Petitioner before this Court is tenant of respondent/ landlady and is aggrieved by the order passed by Prescribed Authority dated 05.05.2022, whereby, release application filed by the landlady under Section 21(1)(a) of U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (hereinafter to be referred to as 'Act No. 13 of 1972') has come to be granted. This order was unsuccessfully appealed against before the appellate authority and so the order passed by the appellate court/ authority dated 30.05.2024 is also assailed in this petition.

3. The main plank of the argument of learned counsel for the petitioner is that the plea taken by the defendant to the effect that the landlady's husband was running business along with her son was in fact the business run by the son and not by the father, father was just a helping hand and sufficient evidence was led to demonstrate that the business was being run only by the son but that has not been considered and appreciated appropriately while considering the bonafide need of landlady in the matter of release under Section 21(1)(a) of the Act. Thus, it is contended that the findings returned by the Prescribed Authority are perverse. The other argument advanced is to the effect that though it had come in Survey Commission report that there were two sets of shops on the ground floor, namely 'A' series and another 'B' series and the landlady having not disclosed the fact qua 'B' series shops, the court ought to have considered this on the point of bonafide need and yet no reference was made. Sufficient evidence was led on affidavit by the petitioner to suggest that there were shops vacant there in 'B' series and the landlady had failed to lead any evidence in rebuttal except filing a replication and that too at the fag end of the proceedings.

4. Contention therefore, is that in the absence of any evidence in rebuttal to the evidence led by the petitioner, the Prescribed Authority was not justified in discarding the evidence of the petitioner to allow the release application.

5. Assailing the order passed by the court of appeal, it is argued by Ms. Goel that specific ground was taken in the grounds of appeal qua the findings returned by the Prescribed Authority to be perverse and yet the court of appeal only in just three lines discarded the claim set up by the tenant and allowed the claim/ contention raised in the replication by the landlady qua 'B' series shops as belonging to her brother-in-law. No other argument has been advanced by learned counsel for the petitioner.

6. Ms. Shreya Gupta, learned counsel for the respondent, countering the submissions advanced by learned counsel for the petitioner, has contended that there was no such case between the parties that there was some other set of shops except for six shops that were in issue. In support of her submissions, she has taken the Court to the pleadings raised particularly in paragraph nos. 4 & 5 of the release application in which the pleadings are to the effect that there are six shops in which two shop are in possession of the petitioner, whereas, four shops are in occupation of other other sons of the landlady and also the husband of landlady running a godown. She submits that these paragraphs have been denied in written objections but no specific plea was taken that there were other shops also besides those six shops in question as belonging to the petitioner. It is submitted by Ms. Shreya Gupta that the evidence can be read only qua the pleadings raised. She submitted that Amin Commission's report was submitted before the Court on 10th February and the affidavit came to be filed by the tenant on 18th February and so the petitioner was left with no other option but to file a replication to make denial of the statements made in the affidavit. She submitted that in the event there was no case of the parties that there were six shops other than those in 'A' series also under the ownership of the respondent landlady, it could not have been taken a plea as valid enough, to deny the claim of the landlady for bonafide need of the shops in question. She has taken the Court to various paragraphs of the written statement particularly paragraph nos. 20 & 21 where the plea was specifically taken regarding 'A' series shops only. The further averment came to be made in para 24, according to her, which led to the occupation and business being run in other shops to set up the claim that the shops in question were not required by the landlady. In further paragraph 31 also only six shops were mentioned and so also the reference was made about the boundaries of 'A' series shops in para 32 but there is no reference that the shops of 'B' series also belonged to the respondent landlady.

7. It is submitted by learned counsel for the respondent that the pleadings that were not there by the tenant to set up a case that there were shops in 'B' series, findings returned by the Prescribed Authority as well as by the appellate authority on the count that these shops belonged to brother-in-law of the landlady, cannot be taken to be perverse. Paragraph no. 37 of the replication has been reiterated before this Court.

8. Having heard learned counsel for the respective parties and having perused the records, in so far as the argument advanced by learned counsel for the petitioner qua business running by son is concerned, it is true that some statement has come to be made regarding visiting card etc. to be standing in the name of son alone but it is quite possible that in order to encourage and further establish the son, father made son to be a primary person but this cannot be sole reason to dispel the contention of the landlady that the business was being run jointly. Besides that, I also find that there is no pleading coming up in the written statement itself for which it may be said that there were sufficient other evidence to show in some papers of furnishing tax return etc. to demonstrate that the business was being run exclusively by the son and not jointly with his father. So the arguments advanced by learned counsel for the petitioner that the findings are perverse cannot be accepted.

9. Besides the above, the Court is also of the view that the landlady was not required to disclose her entire properties while she sought release of a particular shop. What is required to be disclosed by the landlady in a case of release filed under the provisions of Act No. 13 of 1972, is to set up the need of the tenanted shop and it is the duty of tenant to show that there is alternative accommodation available to the landlady and so there is no bonafide need. Thus, the burden heavily lies only upon the tenant.

10. In so far as the second argument regarding 'B' series shops, I find that in the entire written statement filed by the petitioner only reference is of 'A' series shop and there is no whisper of any 'B' series shop or any other alternative accommodation available to the landlady other than these six shops. Besides that, I also do not find the appellants to have set up any case of a kind that there were other accommodations available other than those which were in issue in the original pleadings.

11. In such circumstances, therefore, the Court cannot be placed under obligation to hold any roving inquiry even in summary proceedings as to the alternative accommodations. Courts have to be satisfied only to this aspect in summary proceedings that release application is filed qua shop in question and that the need is bonafide.

12. In my considered view, the Prescribed Authority as well as the appellate authority have rightly appreciated the evidence on record and recorded cogent and convincing findings while allowing the release application.

13. Thus, I do not find there to be any manifest error either in the judgment of Prescribed Authority or of the appellate authority so as to exercise my superintending/ supervising power under Article 226 of the Constitution of India. Petition lacks merit and is accordingly dismissed.

Order Date :- 12.11.2024

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