Pushpendra Kumar v. Addl. District Judge, Lalitpur

S.C Verma, J.:— This petition under Article 226 of the Constitution has been filed by the tenant challenging the order dated 4-4-1987 passed by the Additional District Judge and the order dated 6-9-1986 passed by the Prescribed Authority/Civil Judge.

2. The petitioner is a tenant in shop No. 42/6, Subhashpura, Station Road, Lalitpur in which he is doing the business of general merchandise. The area of the disputed shop is only 7′ × 5′. In the application of the landlord under Section 21(1)(a) of U.P Act XIII of 1972, hereinafter referred to as the Act, for the release of the aforesaid shop, the need indicated was for the establishment of two sons of Respondent No. 3 who were at the verge of completion of their studies and wanted to establish the business. The need for establishing the chamber of the son who is a practising lawyer was also indicated. It was further stated that the tenant was initially inducted for 11 months but he did not vacate inspite of assurances even though during this period several shops were available to him. The tenant is also creating nuisance and affecting the business of the other sons who are doing their business in the neighbouring shops. The tenant contested the release application on the ground that the landlord does not require the disputed shop as firstly it is not suitable for establishing the lawyers chamber and secondly the other two sons are still studying and even if they require, they can settle with the other son who is already occupying two shops and doing business.

3. The Prescribed Authority, on the basis of the material on record, held that the need of the landlord to establish his two sons in business is proved to be bona fide and genuine. As regards the comparative hardship, it was held that the landlord has no other shop except the disputed shop whereas on the basis of a rent deed which was brought on record, it is established that the tenant has taken on rent another shop from one Nirmal Kumar and, as such, the need of the landlord is greater than that of the tenant.

4. The appellate authority affirmed the findings with regard to the bona fide need of the landlord to establish his sons in business. It has been held that out of the four sons of the landlord, the eldest son Suresh Chandra is doing business by the name Ravi General Stores being in occupation of one of the shops in the same building. The second son Prem Chandra is a practising lawyer and is assisting his father. The need of this son to establish the chamber in the disputed shop cannot be considered as the disputed accommodation is too short for establishing a Lawyers' Chamber which can be accommodated in other part of the building where there is sufficient accommodation for this purpose. The third son Subhash Chandra is in possession of two shops and is doing the business by the name Jimi Crockery and Shanti Sports. On consideration of these facts the appellate court came to the conclusion that in any view of the matter the need for establishing one son would remain even if one shop each is considered for all the sons who are doing business. The need of the landlord was held to be bona fide and genuine for the release of the disputed shop. As regards the consideration of comparative hardship, the learned JUDGE was of the view that there is another shop available to the tenant which he has taken on rent from one Nirmal Kumar and the rent deed brought on record establishes the possession of the tenant on this shop. Apart from this the tenant can make alternative arrangement and would be put to lesser hardship than the landlord.

5. The learned counsel for the petitioner argued before me that the learned Additional District Judge was not justified in not considering the affidavit of Nirmal Kumar, the landlord of shop No. 7 and the two witnesses who are alleged to have attested the rent note executed for shop No. 7. The learned Additional District Judge had allowed to be brought on record the additional evidence by both the parties. The additional evidence of landlord was considered but the evidence in the shape of affidavits of Nirmal Kumar. Sheel Chandra and Kamlesh Kumar were not considered merely on the ground that the pleadings in support of which this evidence was sought to be filed was not allowed to be incorporated in the written statement and the amendment application in this regard was rejected by order dated 16-12-1986.

6. In my opinion, the learned Additional District Judge was not correct in not considering this evidence of the tenant when he has considered the additional evidence in this regard filed by the landlord. The availability of alternative accommodation with the tenant was given consideration and the additional evidence of the landlord on this point was taken on record and considered by the learned Judge. There appears to be no justification for refusing the evidence in rebuttal filed by the tenant on the ground that there are no pleadings in this regard. Apart from the aforesaid reason, the learned Judge was not correct as the proceedings under U.P Act 13 of 1972 are to be considered on the basis of affidavits.

7. But this incorrectness of the order cannot come to the rescue of the tenant. The need of the landlord has been found to be bona fide and genuine and on comparison of hardship, even if for argument sake the availability of shop No. 7 for the tenant is not taken into account, there appears to be reason why the tenant had not made any effort for search of alternative accommodation. The landlord had made a specific averment in the release application that alternative shops were available. The tenant has not brought on record any material to establish that he made any effort to get an alternative accommodation which was necessary. This fact could be taken into consideration while considering the comparative hardship. Reference in this connection may be made to cases Bega Begum v. Abdul Ahad Khan . 1979 1 SCC 273, and N.S Datta v. VII Addl. District Judge.2 The mere fact that the tenant would be put to some hardship and inconvenience or mere non-availability of suitable alternative accommodation cannot be treated to be sufficient ground for refusing the release of the accommodation in favour of the landlord.

8. Before this Court, the petitioner filed an application to bring on record subsequent event of the availability of an accommodation measuring 15′ × 15′ which was alleged to have been purchased by the son of the landlord. In reply it has been stated that the building is of Khaprail and is in the shape of a Khandhar being in a dilapidated condition and cannot be used for any purpose in its present shape specially for doing the business. In my opinion, the availability of the aforesaid accommodation cannot be treated to be an accommodation which is fit for occupation and would serve the purpose for which the landlord has established his need. This alleged alternative accommodation is not suitable for the need of establishing the business being in a dilapidated condition and its situation in Gali.

9. In my opinion, the courts below have not committed any error of law in recording the concurrent findings of fact that the need of the landlord is bona fide and genuine and that no comparison of hardship, the landlord would suffer greater hardship. No other argument has been pressed. In the result, the petition fails and is accordingly dismissed. There shall be no order as to costs. The tenant would be entitled to two years rent from the landlord and considering the facts and circumstances of the case, it would be in the interest of justice that the tenant is allowed to retain the accommodation for three months, provided he gives an undertaking in this regard before the Prescribed Authority within 15 days of the receipt of a certified copy of this order.

10. Petition dismissed.