Deep Chandra Jeneja vs Lajwanti Kathuria (Dead) By Lrs

Being aggrieved against and dissatisfied with the

judgment and order of the Appellate Authority, the appellant-

tenant preferred Civil Misc. Writ Petition No. 3132 of 2004

before the High Court of Allahabad, which was dismissed by

the learned Single Judge by impugned judgment. The

relevant paragraph of the judgment is extracted as under:-

"The courts below after taking into consideration the entire material on record, recorded finding of bona fide need and comparative hardship in favour of landlord. The impugned order requires no interference in exercise of writ jurisdiction.

5 Accordingly, the writ petition is dismissed.

However, the petitioner is granted one year's time to vacate the premises, provided that within one month from today, he files an undertaking before the Prescribed Authority that on or before expiry of aforesaid period of one year he will willingly vacate and handover the possession of the house in dispute to the landlord."

Now, the appellant-tenant has preferred this appeal by

way of special leave challenging the correctness and validity of

the order of the High Court.

During the pendency of the appeal, the respondent-

landlady died and was substituted by her legal heirs.

Mr. Z. M. Naiyer, learned counsel appearing on behalf of

the appellant-tenant, contended that the approach of the High

Court in dismissing the Writ Petition in slip-shod manner

without recording reasons is erroneous. He submitted that

the courts below have committed manifest error of law and

jurisdiction in entertaining and allowing second application for

release of the demised premises as her first application for the 6

same relief was already allowed by the Appellate Authority in

Appeal No.4 of 1983 and two release orders in respect of the

same accommodation, one conditional and other blanket,

cannot co-exist and that being the position, the impugned

orders are vitiated in law. He next contended that the second

application for the release of the demised premises filed by the

landlady was an abuse of process of law and the courts below

should not have entertained the second release application of

the landlady to perpetrate a fraud in judicial proceedings to

achieve her nefarious designs. It was also contended that the

landlady before her death had possessed 11 cozy rooms with

other allied accommodation for the need of her 5 adults and 4

minor members of the family, which are quite sufficient for

their peaceful living, but while determining the bona fide need

of the landlady the courts below have ignored the comparative

hardship of the appellant-tenant.

Mr. Anil Kumar Gupta-II, learned counsel appearing on

behalf of the respondents-legal representative of landlady, on

the other hand, contended that the prescribed authority on 7

proper and careful consideration of the evidence led by the

parties before it, passed a reasoned order of eviction against

the appellant-tenant, the said order has been affirmed by the

Appellate Authority and also by the High Court. He submitted

that this Court ordinarily should not interfere with the

concurrent findings of facts recorded by the competent

courts/authorities in exercise of its power and jurisdiction

under Article 136 of the Constitution of India.

We have duly considered the respective contentions of

the learned counsel for the parties and perused the entire

material on record.

The facts narrated hereinbefore are not in dispute to the

extent that the landlady rented the demised premises to the

appellant-tenant for residential purpose. It appears from the

record that on 26.11.1982/27.11.1982 an application bearing

R.C. No.67 of 1982 was filed by late Smt. Lajwanti Kathuria -

landlady against the appellant-tenant for release of the

demised premises. The said application was dismissed by the

prescribed authority pre-dominantly on the ground that the 8

premises earlier vacated by some tenants were not utilised by

the landlady for the use and occupation of her family

members, but in fact those were let out to new tenants.

However, the appeal filed by the landlady against the

impugned order of the prescribed authority was allowed by the

Appellate Authority on 21.05.1983, whereby the appellant-

tenant was directed to vacate the demised premises and shift

to an alternate accommodation being offered by the landlady.

It was also ordered that in case the appellant-tenant failed to

vacate the premises in question within the stipulated period,

the landlady would get possession of the accommodation

through Court proceedings. The appellant-tenant submitted

that the landlady did not provide the alternative

accommodation in terms of the order of the Appellate

Authority and allowed the stalemate to continue. The

landlady filed second release application which was registered

Rent Case No.18 of 2001 on the file of the prescribed

authority, Kanpur Nagar. From the pleadings of the parties,

both the prescribed authority and the Appellate Authority

have noted that the landlady at the time of filing of the release 9

application in the year 2001 was residing in the same house

with her elder son, Satish Kathuria, his educated wife Smt.

Namita and her grandsons Abhishek, Rajat and grand-

daughter Karishma and younger son Joginder Kathuria, his

educated wife Smt. Rajani, grand-daughter Tanu; her married

daughter Smt. Neelam Khanna, son-in-law Manish Khanna

and their daughters Kum. Kirti and Kum. Neha. She filed

affidavit in support of her release application stating inter alia

that her elder son is a Contractor/Builder, and he needs

separate room for his educated wife and children who are

studying in convent school; she needed room for her second

son Joginder Kathuria, an Advocate and his educated wife and

daughter and separate accommodation for her married

daughter, son-in-law and their children who have frequently

been paying visits to her house because of her old age. She

also stated that she needed one room for her old lady friends,

one room for prayer purpose and one room to be used as a

Museum to preserve some articles of her late husband. She

stated that the appellant-tenant took the demised premises on

rent in July 1972 with clear understanding that being a 10

member of Indian Air Force, he would be transferred from his

place of posting within a period of 3 to 4 years and then he

would vacate the premises forthwith. The appellant-tenant

retired in the year 1984 and thereafter he started running a

small provision store in the name and style of `Juneja

Provision Store'. Rajiv Juneja, the elder son of the appellant-

tenant, is doing construction work in the name of M/s Juneja

Engineering and also doing the business of chemical sale and

purchase in one portion of House No.229 Patel Nagar,

Shanker Nagar. He is living in rented accommodation along

with his wife and children at 140-C Ramgali, Harjinder Nagar,

Kanpur, where he is in occupation of three rooms, one

bathroom, latrine, kitchen and verandah. He is also doing

travel agency business in the name of Juneja Travels at

Pardemanpura, Harjinder Nagar, Kanpur. It was stated that

Ajay Juneja, the second son of the appellant-tenant, is a

teacher in Virendra Swaroop Education Centre and his wife is

doing some business and they are living in House No.

124A/272, Block 11, Govind Nagar, Kanpur, having five

rooms, latrine, bathroom, kitchen, verandah and courtyard. 11

One more son of the appellant-tenant, namely, Vijay

Juneja, is working as a T.V. Engineer in Thomson Co. and his

educated wife is a teacher. They are occupying two rooms,

latrine, bathroom, kitchen and verandah as tenants in

premises No. 1-A Ghaoo Khera Post Chakeri, Kanpur. The

landlady also contended that the appellant-tenant had sub-let

the rented accommodation to one R. N. Singh on monthly rent

of Rs.300/-, in respect of which Civil Suit No. 1112 of 2000

titled R. N. Singh v. D.C. Juneja is pending in the Court of

Civil Judge (J/D), Kanpur Nagar. The landlady also stated

that she filed Civil Suit No.397 of 1997 against the appellant-

tenant in the Court of J.S.C.C., Kanpur Nagar, for ejectment of

the appellant-tenant inter alia on the grounds of default in

payment of rent, sub-tenancy and damage to the demised

house and the said suit is still pending. It was also stated

that the appellant-tenant has constructed a house over one

plot at Gandhi Gram and the appellant-tenant and his family

members are financially very sound. The daughter of the

appellant-tenant is married and she is residing at Lucknow. 12

The appellant-tenant denied the genuine requirement of

the landlady. However, he submitted that in fact there are

only nine family members of the landlady and not ten to

thirteen members as alleged by her. He stated that in the past

over several years, the landlady had evicted many tenants and

thereafter she let out the accommodations to other persons

during the pendency of the present eviction application.

Looking to the strength of the family members of the landlady

and accommodation available with them, the landlady did not

need any additional accommodation as per the version of the

appellant-tenant. He stated that he is living in the demised

premises with his wife, son Rajiv and his wife Gayatri,

grandson Nikhil and his second son Vijay and his wife Rinku,

whereas his third son Ajay Juneja is living in a separate house

No.124A/272, Block 11, Govind Nagar, Kanpur, which was

owned by Ajay's grandfather late Shri Sant Ram Juneja. He

stated that he has no other accommodation in the city of

Kanpur. He denied the allegation of sub-letting the rented

accommodation to one R.N. Singh at the rate of Rs.300/- per

month and stated that the landlady got false suit instituted 13

against him through R.N. Singh. He submitted that as the

landlady refused to accept the rent he, therefore, has been

regularly depositing the settled rent under Section 30(1) of the

Act in the Court of Civil Judge, Junior Division, Kanpur

Nagar. He pleaded that if he is ordered to be evicted from the

demised premises, he will suffer irreparable injury and

hardship as compared to the landlady.

The prescribed authority, on assessment of the entire

evidence on record, came to the conclusion that the appellant-

tenant has failed to establish that the landlady had let out

some portions of the house to the new tenants on higher rent.

The prescribed authority stated in its order that the landlady

has filed on record Paper No.28 in which residential address of

the appellant-tenant is mentioned as 1A, Ghaoo Khera, and

other Paper Nos.29, 30, 31 and 32 also reveal the same

address of the appellant-tenant. On the basis of the oral as

well as documentary evidence on record, the prescribed

authority came to the conclusion that the appellant-tenant is

residing with his son Vijay Juneja and his family members. 14

The averments of the landlady in her eviction application that

the appellant-tenant has got House No.140-C Ramgali,

Harjinder Nagar, 220, Patel Nagar, 1/382 N-2 Road, Harjinder

Nagar, has been supported by Ashok Kumar and Rakesh

Kumar in their affidavits. On comparative scrutiny of the

statements pleaded by both the parties in their pleadings and

supported by their evidence, the prescribed authority has

noticed that in the Voter List Paper Nos. 45 and 46 for the

year 1995-99 name of Ajay Juneja, son of the appellant-

tenant, has not been shown as occupant of premises

No.124A/272, Block 11, Govind Nagar, as contended by the

appellant-tenant in his written statement and deposition in

the affidavit. In fact, Ajay Juneja at the relevant time, was

residing at house No. 251 and later on he shifted to premises

No. 124A/272. The appellant-tenant, during the pendency of

the eviction proceedings, has not made any attempt to secure

alternate accommodation and he has been found living with

other members of the family in some other house and the

prescribed authority as also the Appellate Authority on

scrutiny of the evidence have concluded that House 15

No.124A/272 was owned by the father of the appellant-tenant,

which was transferred in the name of Ajay Juneja, son of the

appellant-tenant, by executing a collusive Will with clear

intention to show that the appellant-tenant does not own any

house in Kanpur City and in order to frustrate the need of the

landlady. Both the courts below recorded concurrent findings

of facts that the appellant-tenant and his family members

have got separate accommodation in Kanpur City and on the

basis of the evidence on record, the requirement of the

accommodation of the landlady is bona fide and genuine and

the comparative hardship also is more pressing to the

landlady in comparison to the appellant-tenant. In that view

of the matter, the High Court in its jurisdiction under Article

226 of the Constitution has rightly dismissed the writ petition

of the appellant-tenant on the premises of concurrent findings

of facts.

In the backdrop of the facts, indisputably, the landlady

could file an application before the prescribed authority for the

eviction of the appellant-tenant from the premises under 16

tenancy or any specified portion thereof and the prescribed

authority after satisfying itself that the ground as stipulated in

Section 21 of the Act does exist, the eviction order has been

validly passed against the appellant-tenant.

Rule 16 of the U. P. Urban Buildings (Regulation of

Letting, Rent and Eviction) Rules, 1972, prescribes certain

factors which have also to be taken into account by the

prescribed authority while considering the application for

eviction of a tenant on the ground of bona fide need. Sub-rule

(1) of Rule 16 relates to the cases of eviction from an

accommodation for the purpose of residence by the landlord

or any members of his family. Considering the facts in the

light of Rule 16 pressed into service on behalf of the appellant-

tenant that taking into consideration the length of the period

of tenancy, the eviction of the appellant-tenant from the

premises in question is in violation of the provision of Rule 16,

in our opinion, cannot be accepted.

In Gaya Prasad v. Pradeep Srivastava [(2001) 2 SCC

604, this Court held that the need of the landlord is to be seen 17

on the date of application for release. In Prativa Devi v. T.V.

Krishnan [(1996) 5 SCC 353], it was held that the landlord is

the best judge of his requirement and courts have no concern

to dictate the landlord as to how and in what manner he

should live. In Rishi Kumar Govil v. Maqsoodan & Ors.

[(2007) 4 SCC 465], this Court while dealing with the

provisions of Section 21(1)(a) of the U. P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Act, 1972 and Rule

16 of the U. P. Urban Buildings (Regulation of Letting, Rent

and Eviction) Rules, 1972, held that the bona fide personal

need of the landlord is a question of fact and should not be

normally interfered with.

Having regard to the well-reasoned concurrent findings

and reasoning recorded by the prescribed authority and the

Appellate Authority, which are affirmed by the High Court in

writ petition, we are of the opinion that the impugned

judgment warrants no interference inasmuch as no illegality,

infirmity or error of jurisdiction could be shown before us by

the appellant-tenant.

18

In the result, for the above-stated reasons, we find no

merit in this appeal and it is dismissed, accordingly.

However, considering the period for which the premises

in question was in the occupation of the appellant-tenant,

time is granted till 31.06.2009 to vacate the premises, subject

to filing of an affidavit by way of usual undertaking before the

prescribed authority within a period of four weeks to deliver

the vacant possession on or before the stipulated date. There

will be no order as to costs.

........................................J. (C. K. Thakker)

........................................J. (Lokeshwar Singh Panta) New Delhi, July 10, 2008.