Allahabad High Court
Dileep Kumar Jain vs Addl. Distt. Judge Court No.5 Faizabad ... on 5 May, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No.-2025:AHC-LKO:25678
Judgment reserved on 29.04.2025
Judgment delivered on 05.05.2025
Case :- WRIT - A No. - 1000072 of 2013
Petitioner :- Dileep Kumar Jain
Respondent :- Addl. Distt. Judge Court No.5 Faizabad And Ors.
Counsel for Petitioner :- R.K.Srivastava,Vinod Pandey
Counsel for Respondent :- Ram Kushal Tiwari,Anoop Kr. Srivastava,Dushyant Singh,Rajendra Kr. Gupta,Rajendra Pratap Singh
Hon'ble Pankaj Bhatia,J.
1. The present petition has been filed challenging an order dated 30.03.2013 whereby, the appeal preferred by the petitioner-landlord against an order rejecting the release application was dismissed.
2. The facts in brief are that the father of the petitioner had filed an application under Section 21 (1) (a) of The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act 13 of 1972) for release of the premises on 28.05.1972 against the respondents herein. In the said release application, it was stated that the petitioner was the Manager of Sri Shwetamber Jain Temple and Dharamshala and was staying in the said Dharamshala for taking care of Jain Pilgrims. It was also stated in the release application that the applicant did not have any house and considering the hardship faced by the applicant and his family, he was permitted to live in the Dharamshala. It was also stated that the applicant's family comprises of himself, wife, two sons and three daughters. The release application was opposed by stating that the petitioner is the member of joint Hindu family and possessing various other properties, however, the release application came to be dismissed vide order dated 18.01.1974. The said order was challenged by the petitioner in an appeal being Civil Appeal No.33 of 1974, which was allowed vide order dated 29.09.1975 and the matter was remanded for decision afresh.
3. After the remand, the release application was once again rejected vide order dated 31.03.1980 by the Prescribed Authority. Aggrieved by the said order, the father of the petitioner again preferred an appeal being Civil Appeal No.59 of 1980. During the pendency of the appeal, the original tenant died and his legal heirs were substituted. The said appeal was once again allowed vide order dated 22.03.1983 and the matter was once again remanded for adjudication afresh. During the pendency of the release application, after remand order, the original landlord died and his family members were situated as legal heirs. The need of the family was once again argued. It was also stated that a family partition was taken place and the premises in question came under the share of the petitioner. It is also stated that no amount had paid towards rent since 1992 by the tenants. During the pendency of the application, an affidavit was filed stating that one of the daughters of the tenant had married and was staying separately. It was also stated that apart from the tenanted premises, the tenant also possesses sufficient residential premises known as "Top Wali Kothi, Mohalla Chowk, Faizabad". However, the release application also came to be dismissed vide order dated 14.08.2022. The Prescribed Authority was influenced by the fact that one of the landlord had executed a sale deed relating to half share of the disputed premises and as such, a view was formed that need was not genuine. It is pleaded that one of co-tenants had sold half share, for which, he was not entitle to do so as he was only having 1/6th share.
4. Aggrieved against the said judgment dated 14.08.2022, an appeal was preferred being Civil Appeal No.12 of 2002 under Section 22 of the Rent Control Act. It is stated that during the pendency of the appeal, an application was filed under Order 41 Rule 27 of C.P.C. bringing on record the fact that two tenants had purchased another house in the name of their wives. The said application was allowed. Thus, the subsequent development in the form of the defendants having purchased another property was brought on record. An effort was also made to amend the pleadings, however, the amendment application was rejected on the ground that the material evidence have already been placed on record and thus there is no need for amendment, however, the appeal was once again dismissed vide order dated 30.03.2013. The said appellate order is under challenge.
5. The contention of the Counsel for the petitioner is that while rejecting the appeal, the plea taken by the landlord that in the premises in which he was residing, there was no sufficient sunlight and air was disbelieved on the ground that it was the landlord himself, who had raised unauthorized constructions, which resulted in loss of air and sunlight. It was also held that if the need was genuine, one of the co-owner would not have sold half of his share. The Counsel for the petitioner further argues that sufficient material evidence was brought on record through an application under Order 41 Rule 27 that the tenant had acquired two premises during the pendency of the appellate proceedings, as such, no defence could have been considered in view of the specific bar as provided in Explanation-1 to Section 21(1), which reads as under:
"Explanation. - In the case of a residential building:
(i) where the tenant or any member of his family [who has been normally residing with or is wholly dependent on him] has built or has otherwise acquired in a vacant state or has got vacated after acquisition, a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained;
(Note - For the purpose of his clause, a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee.]"
6. It is further argued that hardship as pleaded by the landlord could not have been dismissed on the ground as been recorded in the appellate order.
7. No one appeared for the respondent despite the matter being taken up in the revised list.
8. Considering the submissions made at the bar, it is clear that the additional evidence was brought on record during the pendency of the appeal indicating that the tenants had purchased two additional premises in the name of their wives. Once this fact was available, clearly in view of the Explanation-I to Section 21(1), any defence of the tenant would not have been entertained. The appellate is court also wrong in recording that the plea taken by the petitioner that the premises was not suitable, could not have been taken as he himself has raised unauthorized constructions in the premises where he was presently staying. The courts below has clearly erred in ignoring the facts that the proceedings for vacating the premises were initiated in the year 1973 and after various round of litigation, the petitioner could not get the premises owned by them vacated for their personal use. The tenant in the present case had continued to occupy the premises without paying single paisa as rent. The court below has also erred in misapplying the provisions of the U.P. Act No.13 of 1972 and have erred in ignoring the mandate of Explanation-I of Section 21(1), thus, the order impugned cannot be sustained.
9. Accordingly the order dated 30.03.2013 passed in Civil Appeal No.12 of 2002 as well as the order dated 14.08.2002 passed by the Prescribed Authority in P.A. Case No.2 of 1976 are quashed.
10. The premise being House No.143, Mukeri Tola, Mohalla Rekabganj, Faizabad, which is under the occupation of the tenant-respondent, is directed to vacate and hand over the actual and physical possession to the petitioner within a period of two months.
11. As the respondents have not paid any rent since 1992, I deem it appropriate to pass a decree of Rs.5,94,000/- to be quantified for payment of rent and damages. Considering the fact that for 33 years, the tenant has not paid any rent, the rent is quantified at Rs.1500/- per month to be paid for 33 years, which worksout to Rs.5,94,000/-.
12. The petitioner would be entitled to recover the said amount from the respondents in accordance with law.
13. The writ petition is allowed in the above terms.
Order Date:05.05.2025
akverma (Pankaj Bhatia,J.)
