Hari Kishore Gupta Vs. Rama Nand Agarwal

Allahabad High Court (Single Judge)

MATTERS UNDER ARTICLE 227, 1117 of 2017, Judgment Date: Jul 20, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD 

 

AFR 
Court No. - 02 

Case :- MATTERS UNDER ARTICLE 227 No. - 1117 of 2017 

Petitioner :- Hari Kishore Gupta 
Respondent :- Rama Nand Agarwal 
Counsel for Petitioner :- Bijai Prakash Tiwari 
Counsel for Respondent :- Manish Tandon,Atul Dayal 



Hon'ble Surya Prakash Kesarwani,J. 
 

1. Heard Sri Bijai Prakash Tiwari, learned counsel for the petitioner-defendant/ tenant and Sri Atul Dayal assisted by Sri Manish Tandon, learned counsel for the respondent-plaintiff/ landlord. 
 

2. This writ petition has been filed praying for the following relief: 

"(i) issue an appropriate order or direction to set aside/ quash the judgment and order dated 07.01.2012 passed by Prescribed Authority/ Additional Small Causes Court, Court No.2, District Kanpur Nagar in Rent Case No.07 of 2010, (Rma Nand Agarwal vs. Hari Kishore Gupta and another) and judgment and order dated 16.11.2016 passed by Additional District Judge, Court No.24, District Kanpur Nagar in Appeal No.20/2011 (Hari Kishore Gupta vs. Rama Nand Agrawal & others) (Annexure Nos.6 and 13 respectively to the Petition); 
(ii) restrain the Respondent/ Landlord not to interfere into the peaceful business of the Petitioner situated in Premise No.33/32, Chowk, Kanpur Nagar." 

FACTS:- 
 

3. Briefly stated, facts of the present case are that undisputedly the respondent-plaintiff is the landlord and the petitioner-defendant is the tenant of a shop in House No.33/32, Chowk, Kanpur Nagar. The respondent-defendant filed a Rent Case No.07 of 2010 under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act') for release of the tenanted shop in occupation of the petitioner-defendant/tenant. The ground for seeking release of the shop was that the respondent-plaintiff has a family of four members, he is doing business at Pukhraya, District Kanpur Dehat which is about 60 kilometre away from Kanpur Nagar and there is bonafide need of the disputed shop for the purposes of business to be carried by his son. It is alleged by the petitioner-defendant/ tenant that there are five shops in the house in question out of which one shop is in occupation of the respondent-plaintiff and thus, there is no bonafide need. The petitioner-defendant raised other points also objecting the bonafide need of the respondent plaintiff. In paragraphs-13, 24, 26 and 27 of the affidavit dated 20.04.2011, the respondent plaintiff stated that he has a house in Mohalla Subhash Nagar Pukhraya. His son is not engaged in any business. There are seven shops on the ground floor of house in question. One shop is very small measuring 2.50 x 3 feet, which is under tenancy of Badri Prasad. Another shop is in the shape of almirah on the "Chabutara" which is under tenancy of one Sri Vijay Kumar Khandelwal. One shop each is under tenancy of the petitioner-defendant, Rajendra Kumar Gupta, G.L. Girmani, Anuj Kumar and Ajay Kumar respectively. One shop is in the back side which is under occupation of the respondent-plaintiff to which he offered to the petitioner defendant in exchange of the disputed shop. The respondent-plaintiff also came out with the case that the petitioner-defendant has two houses in Kanpur City being House No.90/56 and 90/57, Phoolwali Gali, Kanpur which are in market area and in which he has sufficient accommodation to run his business. Considering the evidences led by the parties and their submissions, the release application being Rent Case No.07 of 2010 was allowed by the Prescribed Authority/ II Additional Judge Small Causes Court, Kanpur by the impugned order dated 07.01.2012. Aggrieved with this judgment, the petitioner-defendant filed a Rent Appeal No.20 of 2012 which was dismissed by the impugned judgment dated 16.11.2016. Aggrieved with these two judgments, the petitioner-defendant filed the present writ petition. 
SUBMISSIONS:- 
 

4. Submission of learned counsel for the petitioner is that the respondent-plaintiff/ landlord has not approached the court below with clean hands inasmuch as in paragraph-6 of the plaint, he has stated that he has no commercial accommodation under his occupation in Kanpur City where he could establish his son in business while admittedly he was having one room in the back side of the house in question. Both the courts below have not properly appreciated the evidences on record and erroneously recorded a finding of bonafide need of the respondent-plaintiff for the disputed shop. The Appellate Court committed manifest error in not considering the affidavits of Sri Satyendra Kumar Tiwari and Sri Kanhaiya Lal Gupta which were filed before the Appellate Court and which indicated that the plaintiff respondent has a shop in his occupation in the house in question. He submits that these affidavits were important piece of evidence and non-consideration thereof by the Appellate Court renders the judgment of the Appellate Court to be unsustainable. In support of his submissions, he relied upon decision of Hon'ble Supreme Court in the Case of Amarjit Singh vs. Smt. Khatoon Quamarain, (1986) 4 SCC 736 (Paras-12, 13, & 14) to contend that there is a distinction between the desire and the need and the bonafide need must be established by the landlord and it must be established by him that he has no other reasonably suitable accommodation which has not been done by the respondent plaintiff and therefore, the impugned judgments suffer from manifest error of law. He further submits that the question with regard to occupancy of certain shops in the occupation of the respondent plaintiff specifically raised by the petitioner-defendant, was not considered properly and no finding has been recorded thereon. Therefore, both the impugned judgments cannot be sustained in the eyes of law. 
 

5. Learned counsel for the respondent-plaintiff/ landlord supports the impugned judgments. He submits that all the evidences filed by the petitioner-defendant were thoroughly considered and discussed by the courts below. Findings of fact were recorded by the trial court and affirmed by the Appellate Court, which were based on consideration of relevant evidences on record which cannot be interfered with in writ jurisdiction under Article 226 or 227 of the Constitution of India. The respondent plaintiff/landlord is in bonafide need of the disputed shop for the purpose of his son and also to augment his own income. The respondent plaintiff, based on evidences, has proved his bonafide need which could not be disputed by the petitioner. He drawn attention of the court to the application of the petitioner-defendant dated 05.11.2015 filed before the Appellate Court under Order XLI Rule 27, C.P.C. whereby he filed his own affidavit as additional evidence. The affidavit of Sri Satyendra Kumar Tiwari and Kanhaiya Lal Gupta were never filed by the petitioner defendant as additional evidence. No application under Order XLI Rule 27 C.P.C. for consideration as additional evidence has been filed by the petitioner which fact is further evident from his own averments of paragraphs-10 & 12 of the writ petition. Thus, these affidavits were never filed as additional evidence and, therefore, the alleged non-consideration thereof is without substance. In support of his submissions, he relied upon the judgment of Hon'ble Court in the case of Krishna Kumar Rastogi Vs. Sumitra Devi, 2014 (3) ARC 143 (SC) (Para-14) in which it has been held that merely for the reason that some witness has stated in his statement that the landlord attempted to sell the property, his statement cannot be said to be reliable as has been believed by the High Court or Appellate Court unless said fact is supported by evidence. On the strength of this judgment, he submits that these two affidavits said to be allegedly filed before the Appellate Court alleging that the respondent plaintiff is in occupation of one more shop in the house in question, cannot support the case of the petitioner in the absence of any evidence led by him. 
DISCUSSION AND FINDINGS:- 
 

6. I have carefully considered the submissions of learned counsel for the parties. 
 

7. The respondent plaintiff/ landlord is undisputedly owner and landlord of House No.33/32, Chowk Kanpur Nagar in which the disputed shop was under tenancy of the petitioner-defendant at a monthly rent of Rs.207/-. The family of the respondent-plaintiff consists of four members. His son Piyush was aged about 22 years at the time of filing release application for whom he felt bonafide need of the disputed shop to enable him to start business of cloths. The plaintiff respondent himself is engaged in business of foodgrains at Pukhraya, District Kanpur Dehat which is about 60 kilometres away from his residence in the house in question at Kanpur Nagar. On these facts, the respondent-plaintiff filed a release application under Section 21(1)(a) of the Act being Rent Case No.07 of 2010, wherein he stated his bonafide need of the disputed shop. He further asserted that his son is of marriageable age but on account of his unemployment, it is hard to find a suitable match for him and for commencement of business by his son, the disputed shop is most suitable accommodation. It was also alleged that the petitioner-defendant have two houses in commercial area of Kanpur City being House No.90/56 and 90/57, Phoolwali Gali, Kanpur and in House No.90/56, the petitioner-defendant has one sweetmeat shop, one paint and one hardware shop and some other shops. A written statement was filed by the petitioner defendant in which it was asserted that on the ground floor of the house in question, two tenants namely Rajjole Gupta and Sri Kumar Brothers have vacated their shops and handed over possession to the respondent plaintiff and thus sufficient accommodation is available with the respondent plaintiff in which he may commence business. The respondent plaintiff denied the allegations made by the petitioner defendant and disclosed in his affidavit complete details of tenants who are occupying the shops and only one shop is left which is on the back side which he offered to the petitioner defendant in exchange to carry on his business. Documentary evidences were also led by the respondent plaintiff by list 30C to prove the ownership of the petitioner defendant of House No.90/56 situate in commercial area and accommodation available therein. The Prescribed Authority considered the evidences on record and submissions of learned counsel for the parties and recorded a finding of fact that the plaintiff offered the shop in his occupation on the back side in the house in question to the petitioner defendant but the petitioner defendant has not agreed to accept the offer on the ground that the said shop is unsuitable for him. The Prescribed Authority found on the basis of evidence that in "Panchshala" the name of the petitioner defendant is recorded as house owner and the petitioner defendant could not file any evidence to prove that he is not the owner of the said house. He also recorded a finding of fact that no effort was made by the petitioner-defendant for search of alternative accommodation. After detail discussion, the Prescribed Authority recorded a finding of fact that there is bonafide need of the respondent plaintiff for the disputed shop. 
 

8. Rent Appeal No.20 of 2012 was filed by the petitioner defendant challenging the aforesaid judgment of the Prescribed Authority. The Appellate Court recorded a finding of fact that there is no dispute regarding landlord and tenant relationship between the respondent plaintiff and the petitioner defendant. This finding has not been disputed before this Court also. Thus, it is undisputed that the respondent plaintiff is the landlord of the disputed shop of which the petitioner defendant is a tenant. 
 

9. On the question of bonafide need, the Appellate Court considered the additional evidence filed by the petitioner defendant at the Appellate stage being Paper No.85-C (affidavit and two photographs being paper No.87-C and 88-C). Additional evidences were filed by means of an application under Order XLI Rule 27 C.P.C. being Paper No.84-C. No other additional evidence was filed by the petitioner defendant before the Appellate Court. The Appellate Court considered these fresh evidences and found that the petitioner defendant himself admitted during the course of the argument that the person shown in the photographs is not the son of the respondent plaintiff who has been alleged in the affidavit to be doing business of ornaments at Phukhraya. Learned counsel for the petitioner defendant could not dispute the aforesaid finding of fact recorded by the Appellate Court. The Appellate Court found that the petitioner-defendant could not prove that the son of the respondent-plaintiff is doing any such business of ornaments. The Appellate Court considered in detail the question of bonafide need and comparative hardship based on evidences on record and recorded a finding of fact that respondent plaintiff is in bonafide need of the disputed shop and the petitioner defendant has not made any effort for alternative accommodation. He also upheld the findings of fact recorded by the Prescribed Authority. Since the the findings recorded by the prescribed Authority and the Appellate Court in the impugned judgments are based on consideration of the relevant evidence on record and as such these findings cannot be interfered with under Article 227 of the Constitution of India. 
 

10. So far as the alleged non-consideration of the affidavit of Sri Satyendra Kumar Tiwari and Sri Kanhaiya Lal Gupta dated 03.03.2016 filed as Annexure-9 to the present petition is concerned, it is relevant to mention that the petitioner-defendant has nowhere stated that these two affidavits were filed by him before the Appellate Court as additional evidence under Order XLI Rule 27 C.P.C. In paragraph-10 of the writ petition, the petitioner defendant has merely stated that he has filed affidavits of Mr. Satyendra Kumar Tiwari and Kanhaiya Lal Gupta but it has not been stated as to whether the said affidavits were filed in additional evidence. Interestingly in paragraph-12 of the writ petition, the petitioner has made specific averment with regard to filing of application under Order XLI Rule 27 C.P.C. and annexed copy of the said application as Annexure-11 to the petition which shows that this application being Paper No.84-C was filed for additional evidence being paper No.85-C, which is the affidavit of the petitioner defendant and along with which two photographs were filed in evidence alleging that the son of the respondent-plaintiff is carrying on business of ornaments at Phukhraya. This additional evidence has been well considered by the Appellate Court. Neither there is any evidence on record nor any averment in the petition has been made that the alleged affidavits of Sri Satyendra Kumar Tiwari and Kanhaiya Lal Gupta were filed before the Appellate Court as additional evidence. Thus, the submissions of learned counsel for the petitioner defendant regarding non-consideration of these two affidavits has no substance. 
 

11. The judgment in the case of Amarjit Singh (supra) relied by the petitioner defendant is of no help to the petitioner in the facts and circumstances of the case inasmuch as the plaintiff-respondent has proved his bonafide need of the disputed shops which was found to be suitable for start of business of cloth by his son. The plaintiff-respondent had offered the petitioner-defendant the vacant shop in the back side of the house in question but he refused to accept the offer on the ground that the said shop is not suitable for his cloth business. Once the petitioner-defendant himself has stated that the offered shop was not suitable for his cloth business then it stands proved that the suitable accommodation to start business of cloth, was 'the disputed shop' in question and respondent plaintiff was in bonafide need of it. 
 

12. In the case of Krishna Kumar Rastogi (supra) Hon'ble Supreme Court referred to the law settled in various judgments and held that it is well settled that the landlord's requirement need not be a dire necessity. The Court cannot direct a 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 the choice of the landlord to choose the place for business which is most suitable for him and for which he has complete freedom in the matter and his need is to be seen on the date of filing of the application for release. The landlord is the best judge of his requirement and the courts have no concern to dictate as to how and in what manner he should live or start his business. The said legal position as briefly stated above is supported by the law laid down by Hon'ble Supreme Court in the cases of Mohd. Ayub and Another vs Mukesh Chand, (2012) 2 SCC 155 (Paras-15 & 17), Rishi Kumar Govil vs. Maqsoodan and Ors (2007) 4 SCC 465, Ragavendra Kumar v. Firm Prem, Machinery & Co. (2000) 1 SCC 679, Gaya Prasad v. Pradeep Srivastava (2001) 2 SCC 604, Prativa Devi vs. T.V. Krishnan (1996) 5 SCC 353 and Krishna Kumar Rastogi (supra). 

13. In view of the above discussion, I do not find any merit in this writ petition. Consequently, the writ petition fails, and, is hereby dismissed. 
 

Order Date :- 20.07.2017 
NLY