Allahabad High Court
Mukesh Chandra Agarwal vs Smt. Kamlesh Jain on 13 January, 2020
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 52 Case :- WRIT - A No. - 21460 of 2019 Petitioner :- Mukesh Chandra Agarwal Respondent :- Smt. Kamlesh Jain Counsel for Petitioner :- Rama Goel Bansal Hon'ble Piyush Agrawal,J.
1. The present writ petition has been filed by the petitioner-tenant for quashing the order dated 16.3.2019 passed by Judge, Small Cause Court, Jhansi in P.A. No. 52 of 2018 (Smt. Kamlesh Jain Vs. Mukesh Chandra Agarwal) by which the application filed by the petitioner-tenant under Section 10 (c) was rejected on the ground that the petitioner-tenant is adopting delay tactics.
2. Brief facts of the case is that the petitioner is tenant of Shop No. 45/1 A and 45/2 A situated at Jawahar Chowk Manik Chowk, Jhansi. The respondent-landlord has filed an application under Section 21 (1) (a) of UP Act No. 13 of 1972 (herein after referred to 'Act 1972') for releasing the aforesaid shop in question on the ground of bona fide need. The said release application was contested by the petitioner-tenant. The petitioner-tenant has filed written statement in which the petitioner-tenant has stated that the landlord-respondent has available two other vacant shops in the same building and if there is any bonafide need then same can be fulfilled from the other two vacant shops. Thereafter the petitioner-tenant filed an application under Section 10 (c) of the Act, 1972 which was rejected by the prescribed authority/ Judge Small Causes Court on the ground that the petitioner-tenant is adopting delay tactics.
3. The counsel for the petitioner-tenant submits that the application filed by the petitioner-tenant has been rejected without looking into the facts as well merits of the case and without considering the prayer made therein. It is further submitted that the landlord had two other vacant shops available with him but instead of utilizing those shops the landlord-respondent is trying to release the shop related to the petitioner-tenant.
4. Heard Smt. Rama Goel Bansal, learned counsel for the petitioner and perused the record.
5. Similar controversy has been decided by this Court in the case of Durga Prasad Bansal Vs. Vimla Devi 2008 Law Suit (All) 1777, relevant part of which is extracted below:-
"The tenant then filed an application for issuance of a Commission for inspection of the shop vacated by Mangat Ram Sharam and for inspection of the other shop said to available with the tenant. This application was rejected by the Prescribed Authority on the ground that tenant was only delaying the proceedings of the case.
I have heard Sri Rahul Sahai learned Counsel for the petitioner and Sri Ankur Goel learned Counsel appearing for the respondent-landlord and have perused the material available on record.
Learned Counsel for the petitioner submitted that the Commission was required to determine whether the shop vacated by Mangat Ram Sharma was in a proper condition as alleged by the tenant or it was in a dilapidated condition as alleged by the landlord. Likewise, the inspection of the Kothari in the possession of the tenant was also necessary. He, therefore, submitted that the Prescribed Authority committed an illegality in rejecting the application.
Learned Counsel appearing for the respondents has placed reliance upon the Judgment of this Court in Writ Petition No.61889 of 2007 Hari Shankar Vs. Subhash Chandra decided on 17th December 2007 and has contended that the Commission should not be issued for the purpose of collecting evidence. A perusal of the Judgment indicates that the Court has drawn certain exceptions and has observed that a Commission for local investigation can be issued to ascertain specific facts such as investigation for identification of the property or the physical condition of the structure or for ascertaining the market value of the property as these facts cannot be proved by documentary evidence.
In the present case the physical condition of the structure has to be determined which can be done by issuance of the Commission and not by affidavit. In such circumstances, the order passed by the Prescribed Authority rejecting the application for issuance of Commission cannot be sustained and is set aside.
Sri Ankur Goel learned Counsel for the respondents is, however, justified in asserting that a time bound direction should be given for issuance of Commission and the application filed by the landlord under Section 21(1)(a) of the Act may be decided expeditiously.
The writ petition, therefore, succeeds and is allowed. The order dated 4th April 2008 passed by the Prescribed Authority is set aside and the application for issuance of the Commission is allowed. The Prescribed Authority shall, however, ensure that the report of the Commission is submitted within two weeks from the date a certified copy of the order is filed either of the parties before the Prescribed Authority. The Prescribed Authority shall also endeavor to decide application filed by the landlord under Section 21(1)(a) of the Act expeditiously, preferably within a period of three months from the date of submission of the report."
6. This Court again in the case of Bilal Ahmad Vs. Additional Civil Judge and another, 2018 (2) ARC 699, has observed as follows-
"There is a provision under Section 34(1)(g) read with Rule 22(f) in the Act and the Rules of 1972 that an Amin Commission can be issued for determination of correct facts, if there is a serious dispute with regard to availability of accommodation with the parties.
The said application has been rejected by the order impugned.
The learned Trial Court has observed that in the written statement, certain seriously disputed facts have been stated which cannot be resolved by a report being summoned on Commission. With regard to the facts mentioned in the application for which the Commission is sought to be issued, the tenant can file his evidence on affidavit / documentary evidence and there is no provision in law wherein the process of Court can be utilised for collecting of evidence.
The learned Court below has relied upon judgment rendered by this Court in Radhey Shyam Vs. Additional District Judge, Lucknow & other 2010 (2) ALJ 758 and Krishn Mohan Mehrotra Vs. Additional District Judge, Lakhimpur & other 2014 (4) ALJ 774 and observed that there may be only a discretion on the Trial Court to allow or reject such an application and just because an application for issuance of Commission is filed, no Commission can be issued as a matter of course.
Learned counsel for the petitioner submits that in the quinquennial assessment of the property in question, the mother of the landlord has been recorded as owner of the two houses and no names of any tenants have been shown.
This Court finds on a consideration of facts as mentioned by the learned counsel for the petitioner and in the order impugned that no doubt the tenant can not insist upon local inspection of adjoining house said to be in possession of the landlord, because a tenant has no right to suggest to the landlord to reside at a particular place or a particular house, if bonafide need of the landlord has been set up for the house in question, in which the tenant is residing but if a serious dispute regarding the said house is raised by the tenant, then local inspection of the house in which the tenant is residing can be directed to resolve serious and disputed questions of fact.
Consequently, the order dated 19.1.2018 is set aside and the matter is remanded to the learned Trial Court to decide application no. 35 afresh taking into account the observations made herein above and the learned Trial Court if it finds some substance in the argument made by the tenant with regard to availability of accommodation to the landlord in house no. 44/37, then the learned Trial Court may fix a date for local inspection of the premises i.e. house no. 44/37 alone. The inspection shall be carried out on the date fixed in the presence of the Advocate for the parties as well as the parties themselves and the report shall be submitted by such Amin on inspection within a period of fourteen days thereafter.
Learned Trial Court shall take a decision after inviting objections on the said report following the ordinary process of law.
The petition is partly allowed to this extent."
7. Considering the facts and circumstances of the present case, this Court found that the court below has not assigned any cogent reason in rejecting the application of the petitioner-tenant. Thus impugned order is illegal and liable to be set aside.
8. In the results, the writ petition succeeds and is allowed. The order dated 16.3.2019 passed by Judge, Small Cause Court, Jhansi in P.A. No. 52 of 2018 (Smt. Kamlesh Jain Vs. Mukesh Chandra Agarwal) is hereby set aside. The court below is directed to decide the application of the petitioner afresh after affording opportunity of hearing to the parties, in accordance with law and after relying upon the observations made by this Court in the cases of Durga Prasad Bansal and Bilal Ahmad (supra).
Order Date :- 13.1.2020 Rahul Dwivedi/-