Civil Misc. Writ Petition No. 566 (M/S) OF 2013. Case: Rajesh Kumar Vs Bishan Kumar and Ors.. Uttarakhand High Court

Case NumberCivil Misc. Writ Petition No. 566 (M/S) OF 2013
CounselFor Appellant: Arvind Vashisth, Senior Advocate assisted by Bharat Singh Mehra, Advocate and For Respondents: Piyush Garg, Advocate
JudgesRajiv Sharma, J.
IssueUttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 - Sections 21, 21(1), 21(1)(a), 21(a)(1), 3(1), 41, 42
Judgement DateJanuary 11, 2017
CourtUttarakhand High Court


Rajiv Sharma, J.

  1. This petition is directed against the judgment and order dated 25.02.2013 rendered by 1st Additional District Judge, Dehradun in Rent Control Appeal No. 27 of 2011.

  2. The key facts necessary for adjudication to this petition are that respondent No. 1/landlord filed a release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 for eviction of the tenant/petitioner. According to the averments made in the plaint, respondent No. 1/landlord had only one shop in his possession. This shop is very small. He required the property for settling his son. Landlord/respondent No. 1 also pleaded that the tenant has two other shops situated in 617 Dakara Cantt and Godown and also residential accommodation comprising of 6-7 rooms. Petitioner filed his objections to the release application. Petitioner/tenant pleaded that he was carrying his own business in the suit property and landlord/respondent No. 1 has also property in Dakara Cantt. including a big commercial property in Garhi Cantt. Landlord had also established a Soda and Cold Drinks factory and he himself is running the business in the close vicinity of the suit property. Before the Prescribed Authority, both the parties led their evidence in the matter. Learned Prescribed authority/Civil Judge (Sr. Div.), Dehradun dismissed the release application vide order dated 25.02.2011. Aggrieved by the said order, landlord/respondent No. 1 preferred an appeal before learned 1st Additional District Judge, Dehradun being R.C.A. No. 27 of 2011 which was allowed vide order dated 25.02.2013. Hence, the present writ petition.

  3. Learned Advocate appearing on behalf of the petitioner has vehemently argued that the suit property is commercial-cum-residential and landlord/respondent No. 1 has also other properties in his possession. Learned 1st Additional District Judge, Dehradun has not taken into consideration the comparative hardship faced by the tenant. Landlord has sufficient alternative property in his possession, requirement of the landlord is not bona fide. Learned counsel for the tenant/petitioner supported the order passed by Prescribed Authority/Civil Judge (Sr. Div.), Dehradun.

  4. Learned Advocate appearing on behalf of the landlord/respondent No. 1 has supported the judgment passed by 1st Additional District Judge, Dehradun. Suit property was let out for the commercial purpose by the landlord and now the landlord wants to settle his son in the suit property. Petitioner/tenant had not made any effort to find out the alternative accommodation after institution of rent petition.

  5. Heard learned counsel for the parties and gone through the judgment/order passed by the courts below carefully.

  6. In all the receipts including money orders sent by the petitioner/tenant to the landlord, the description of suit property has been shown as a shop. The Court has seen the receipts. According to the affidavit filed by landlord, the suit property was commercial not residential. The landlord wanted to settle his son in separate business in the suit property.

  7. The landlord has every right to settle his family members. The need of the landlord is bona fide. It is the fact that landlord was running a shop in the close vicinity, but his requirement seems to be bona fide. Landlord's son has also appeared as witness and he has stated that he wanted to start his separate business in the suit property. Each and every member of the landlords' family is entitled to start separate independent business. Petitioner/tenant has not made any effort to find out the alternative accommodation after institution of rent petition for release of the suit property. Learned Appellate Court, after going through the record, categorically found that the comparative hardship faced by the landlord would be more. The suit property is required by the landlord for settling his son.

  8. Learned Appellate Court has correctly appreciated the oral as well as documentary evidence produced by the parties. Petitioner has never denied that the son of landlord was not unemployed.

  9. Their Lordships of Hon'ble Supreme Court in AIR 2003 SC 532 in the case of Akhileshwar Kumar and others Vs. Mustaqim and others have held that educated and unemployed son was in need of settling himself independently in business. Simply because he was assisting his father in family business does not mean that he should never start his own independent business. Relief of eviction cannot be denied merely because other shops are available to him. Their Lordships have held as under:-

  10. In our opinion, the approach adopted by the High Court cannot be countenanced and has occasioned a failure of justice. Overwhelming evidence is available to show that Plaintiff 1 is sitting idle, without any adequate commercial activity available to him so as to gainfully employ him. Plaintiff 1 and his father both have deposed to this fact. Simply because Plaintiff 1 is provisionally assisting his father...

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