Allahabad High Court
Mahendra Singh And Anr vs Om Prakash Gupta And 2 Ors on 29 January, 2020
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 55 Case :- WRIT - A No. - 66703 of 2014 Petitioner :- Mahendra Singh And Anr Respondent :- Om Prakash Gupta And 2 Ors Counsel for Petitioner :- Prateek Sinha Counsel for Respondent :- Ashish Kumar Singh,Atul Kumar I,Ramesh Chandra Agrahari Hon'ble Saral Srivastava,J.
Heard learned counsel for the petitioners and Sri Ramesh Chandra Agrahari, learned counsel for the respondents.
The petitioner was tenant of one shop which is part of Building No. 106/3 P-Road, Gandhi Nagar, Kanpur Nagar. The respondent-landlord filed an application under Section 21 (1) (a) of U.P. Act No. 13 of 1972 for release of the shop before the Prescribed Authority/Additional Civil Judge (S.D.), Court No. 2, Kanpur Nagar which was numbered as Rent Case No. 44 of 2007. The need set up by the landlord in the release application is that the said shop is needed for the establishment of beauty parlour for his daughter-in-law Deep Sikha. It is also pleaded that Deep Sikha has done diploma course.
The aforesaid release application was contested by the tenant-petitioner contending therein that during the pendency of the release application, one shop at the basement in which Vinita Chaturvedi was tenant was vacated pursuant to a compromise decree passed in Case No. 46 of 2007 filed by the respondent-landlord against Vinita Chaturvedi, and two room set on the first floor of the building which was in tenancy of one B. Demla who was running a business in the name of Bela Traders was also vacated by B. Demla. Thus respondent-landlord has an alternative accommodation which satisfies need of the respondent-landlord and therefore, the need of respondent-landlord for release of the shop is not genuine.
The Prescribed Authority while dealing the issue as regards the vacation of one shop of Vinita Chaturvedi has recorded a finding that as per compromise decree dated 23.12.2011 in Case No. 46 of 2007, she was to vacate the premise within two years and thus, the possession of the said shop has not been delivered to the respondent-landlord. The Prescribed Authority in respect of the portion vacated by B. Demla recorded a finding on the basis of evidence on record that the said portion is being used by the landlord-respondent for residential purpose.
In appeal, the petitioner-tenant has filed an affidavit of Vinita Chaturvedi in additional evidence which was taken on record by the Appellate Court. In the said affidavit, Vinita Chaturvedi had stated that she had handed over the possession of the shop on 22.10.2013. The Appellate Court after considering the evidence on record returned a finding that as per compromise decree two years' time was accorded to Vinita Chaturvedi to vacate the premise and the petitioner has not led any evidence to indicate that the shop has been handed over to the respondent-landlord. As regards the portion of house in possession of B. Demla, the Appellate Court affirmed the finding recorded by the Trial Court.
I have perused the judgement of both the courts below and I find no illegality in the orders passed by the courts below. Sofar the contention of petitioner-tenant that the petitioner has filed 'panchsala' to indicate that B. Demla was running a business in the portion let out to her and thus it is established that the respondent-landlord has an alternative accommodation which could satisfy his need. The said argument on the face of record is misconceived for the reason that the landlord-respondent has not disputed the fact that B.Demla was his tenant. The respondent-landlord has stated that the two rooms in tenancy of B. Demla is being used by the respondent-landlord for residential purpose. The petitioner-tenant did not lead any evidence to establish that the respondent-landlord is not using the two rooms let out to B.Demla for residential purpose. The finding recorded by the courts below in this regard is a finding of fact.
As regard the fact of vacation of one shop by Vinita Chaturvedi is concerned, the Appellate Court after considering the additional evidence filed by the petitioner-tenant returned a finding that that the petitioner-tenant has filed evidence of Vinita Chaturvedi indicating that she has vacated the premise but no other documentary evidence has been filed by the petitioner-tenant to establish that the actual physical possession of the shop in tenancy of Vinita Chaturvedi has been handed over to the respondent-landlord.
In this view of the fact, the finding of the Appellate Court is also a finding of fact based upon proper appreciation of evidence on record.
Thus, for the reasons given above, the above arguments advanced by learned counsel for the petitioner-tenant cannot be sustained and are accordingly rejected.
Thus, for the reasons given above, the writ petition lacks merit and is accordingly, dismissed.
Order Date :- 29.1.2020 Jaswant