Uttarakhand High Court
Sarfaraz Hussain & Anr. ... vs Chandu Chauhan & Anr on 11 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. (M/S) 3170 of 2015
Sarfaraz Hussain & Anr. ..........Petitioners
Mr. Siddhartha Sah, Adv.
-Versus-
Chandu Chauhan & Anr. .......Respondents
Mr. Arvind Vasistha, Sr. Adv.
assisted by Mr. Kaushal Pandey, Adv.
Sri S.K. Mishra, J.
Date of hearing and judgment
11.11.2021
1. Heard Mr. Siddhartha Sah, the learned counsel for
the petitioners and Mr. Arvind Vashistha, the learned
Senior Advocate assisted by Mr. Kaushal Pandey, the
learned counsel for the respondents.
2. In this writ petition, the petitioners being the owner
of the tenanted premises has prayed for issuance of writ
of certiorari quashing the judgment and order dated
12.03.2014 passed by Prescribed Authority/ Civil Judge
(Sr. Div.) Almora in Rent Case No. 03 of 2010 and
confirming judgment and order dated 30.05.2015 passed
by the learned District Judge, Almora in Rent Appeal no.
06 of 2014. He has also prayed for appropriate suitable
directions and mesne profit to the petitioner by the sole
respondent @ Rs. 10,000/- per month.
3. The petitioners inherited the property from their
father. Respondent no. 1 is the tenant with respect of the
said property or shop. Petitioner no. 1 was in service in
Central Warehousing Corporation and he retired in the
year 2003. He is not receiving any pension, therefore he
decided to setup the shop and carry small business in the
shop in question which was in the tenancy of respondent
no. 1. In other words, he claimed that he required the
same for his bona fide personal use, and, therefore, he
filed an application for release of the tenanted premises
before the learned Prescribed Authority. The opposite
party in this case has claimed that the petitioner has other
properties and one of his properties was tenanted to some
other person, namely, Shambhu Dutt Joshi but the
petitioner got it released through process of the Court for
the purpose of his own use. However, the said property
was again tenanted to some other person. This fact was
not pleaded by the petitioner in his release petition and it
came to the Court after filing of the counter affidavit or
the written submissions by the sole respondent. This fact
is, in fact, disputed by the petitioners during course of
hearing, and a commission was deputed. The Commission
ascertained the fact and reported in favour of the plea
taken by the respondent which shows that the petitioners
did not come to the Court i.e. Court of the learned
Prescribed Authority with clean hands, in fact, he has
suppressed material facts before the Court.
4. Mr. Siddhartha Sah, the learned counsel appearing
for the petitioners relied upon the reported case of
Shamshad Ahmed & others. Vs. Tilak Raj (Deceased)
through LRS & others, (2008) 9SCC 1 and contends that
even when the landlord has other properties, he may
require any particular property for bona fide personal use
in such a situation his application for release should not
have been rejected. The relevant paragraphs relied upon
by the learned counsel for the petitioners are 47 and 50.
We consider it appropriate to reproduce the same
hereunder:-
"47. In the case on hand, a finding had been recorded
by the appellate authority that requirement of the
landlords for doing business by Matloob Ahmad, husband
of applicant No.6 was bona fide and genuine. Thus, the
requirement of the landlords was established. The said
finding stands today. The High Court by a cryptic order,
without disturbing the said finding which was based on
appreciation of evidence, set aside the order of eviction
against the tenant, inter alia, observing that Matloob
Ahmad was a `retired person' and was getting pension
and was living in his village at a distance of five
kilometers from Dehradun. It is no doubt true that the
tenancy was created before about fifty years but that
should not be a ground for depriving the landlord for
doing business if the requirement of the landlord is bona
fide and reasonable.
50. Regarding comparative hardship, nothing has been
stated by the tenant as to whether any attempt has been
made by him to get alternative accommodation and he
failed to get such accommodation. In the circumstances,
in our opinion, the appellate authority was right in
observing that there was no evidence to show that no
shop was available to the tenant. It is quite possible, as
noted by the appellate authority, that the tenant might
have to pay more rent. But that would not preclude the
landlords from getting possession of the suit- shop once
they had proved genuine need of the property".
5. However, a careful examination of this reported
judgment in its applicability to the present case we are of
the opinion that the reported case is factually different
from the present case. In this case, admittedly, the
petitioner has a number of properties. It is also not
disputed at this stage that one of the property was already
got released by the petitioner but instead of using the
same for his own business he again let it out to another
person. Now at this, Mr. Siddhartha Sah would argue that
the property was an office premises and it could not be
used for business purpose and furthermore, that situates
at the back side of Alpine Hotel so that it cannot be used
for a purpose like running a hotel or a restaurant.
However, such argument is a later development and an
afterthought because there is no such pleading in his
petition. As noted above, this fact cannot be pleaded or
brought to the notice of the Court by the petitioner rather
it was brought to the notice of the Court by the opposite
party in the written statement and it got ascertained by
the report of the Commission.
6. This Court is of the view that concurrent findings
recorded by the Prescribed Authority and the Appellate
Authority require no interference, as there is no perversity
in the factual findings recorded by both the forum. Thus,
this Court is not inclined to allow the writ application.
7. Hence, the writ petition is dismissed being devoid of
merit.
8. There shall be no order as to costs.
9. Urgent certified copy of this order be provided as per
rules.
(S.K. Mishra)
Judge
PV
