MANOJ KUMAR AND OTHERS Vs. USHA SHARMA

JUDGEMENT

(1.) By means of this writ petition, moved under Article 226/227 of the Constitution of India, the Petitioners have sought writ in the nature of certiorari quashing the judgment and order dated 17.11.2009 passed by the learned District Judge, Nainital in Rent Control Appeal No. 5 of 2006 'Pawan Kumar and Ors. v. Smt. Usha Sharma' and also judgment and order dated 06.03.2006 passed by the Prescribed Authority/Civil Judge (Jr. Div.), Ram Nagar in Rent Control Case No. 3 of 2004 'Smt. Usha Sharma v. Pawan Kumar and Ors.'.

(2.) Brief facts, as alleged in the petition, are that there is a commercial building in the ground floor situated at Mohalla Jwala Line, Ram Nagar, Nainital. The said building Was initially owned by Lala Bihari Lal. From time to time same was purchased by several persons and lastly in the year 1995, the property was purchased by Respondents. The property was purchased by Jaswant Singh, Laxman Singh sons of Mangal Singh and they became the owner of the same in the year 1995. Thereafter, the said property was purchased by Respondent Smt. Usha Sharma. The Petitioner's grandfather Lala Loti Ram was the tenant of the premises in dispute since the year 1946 and after his death his heirs Ram Bharose Lal (father of Petitioner Nos. 3"& 4), Krishna Kumar (father of Petitioner Nos. 5 & 8), late Shyam Lal (father of Petitioner Nos. 1 & 2) and the Petitioner No. 7 Kailash Kumar became the joint tenants of said premises. After the death of Ram Bharose Lal in the year 1991, the Petitioner Nos. 3 & 4 and their mother Smt. Sharda Devi became joint tenant of the property in dispute. Similarly, after the death of Krishna Kumar in the year 1975, the Petitioner Nos. 5 & 6 and after the death of Shyam Lal in the year 1977, the Petitioner Nos. 1 & 2, being the members of joint Hindu family, also became the joint tenants of the premises in dispute. The rent of the premises in dispute is being paid by the Petitioners as and when the same falls due. It is alleged that the Respondent's husband is running a big business having annual turnover in crores. The elder son of Respondent, namely, Anupam ' Sharma has a hotel resort in Dhikuli and youngest son, namely, Alok Sharma is Chartered Accountant in Delhi. The second son of Respondent, namely, Anurag, after completing his education in the year 1991, is looking after the business of his father as well as having independent business of printing in the name and style 'Aryavrat Printing Industry' situated in first floor of the premises in dispute. The Respondent filed an application under Section 21(1)(a) of U.P. Urban Buildings (Regulations of Letting Rent and Eviction) (UP. Act No. XIII of 1972) (hereinafter referred to as the Act), in the Court of Prescribed Authority, Ram Nagar. The said application was registered as P.A. Case No. 3 of 2004 'Smt. Usha Sharma v. Pawan Kumar and Ors.'. In the said application, the Respondent/landlady came up with the case that her husband Shri Hari Om Sharma is a tenant in a small shop at Mohalla Jwala Line, Ram Nagar measuring 8'X16' where he is running the business of Bidi, Cigarettes and Parchune items. She stated in the application that she has three Sons, namely Anupam Sharma who is engaged in hotel business, Shri Alok Sharma who is a Chartered Accountant and Shri Anurag Sharma who is a graduate. Anurag Sharma tried for service, but could not succeed, therefore he started an Offset Printing Press in the residential accommodation at first floor of the said property. The ground floor is in the possession of Petitioner Nos. 1,2 and 5 to 7. The first floor has 23 stairs measuring 2'4" in width. Since the building was too old and due to vibration and load of machine, there was always a danger to the building, Shri Anurag Sharma had to close down the said Offset Printing Press on 26th March, 2004 and ever since then he is unemployed. It is stated in the application that the original tenant of the said shop in question was Shri Ram Bharose Lal and after his death his son Shri Pawan Kumar and Shri Akhilesh Kumar (Petitioner Nos. 3 & 4) became the tenants and they handed over the said shop to their cousin brothers (Petitioner Nos. 1,2 & 5 to 7) and the Petitioner Nos. 3 & 4 started their business under the name and style of A.K. Traders, Lohara Lines, Ram Nagar. It has been further stated in the application that the Petitioners had claimed that they all are joint tenants in the shop in question. It is alleged that the Petitioners have a Brass Factory at Mohalla Bombay Gher, Ramnagar, Nainital, besides it, they have one shop in the Ahata of Krishi Utpadan Mandi, Ram Nagar, Nainital where they are carrying the business of fruits, another shop at Krishi Utpadan Mandi, Ram Nagar, Nainital where they are carrying on commission agent business of vegetables and they have the business in the name of A.K. Traders at Lohara Lines, Ram Nagar, Nainital which deals in plastic goods and have their supplies in whole of the hill area. It is also alleged that the Petitioners belong to a rich family. They have their own houses, shops, godown at Ramnagar. The business of general merchant/parchune can be shifted in the vacant shop situated in the same line and is in possession of the Petitioners. The same is situated at the centre place and for conducting business from the same, the Petitioners shall not face any loss or inconvenience, rather they will be profited. In comparison to the business of the Petitioners, son of the Respondent is facing mental and financial problems. It was further stated that son of the Respondent is ready to commence the work of Printing Press in the shop of the Petitioners, which is lying vacant. In para-16 of the plaint, the landlady came up with the case that the Petitioners have one shop at Jwala Line, Ram Nagar, Nainital after leaving 13 shops from the shop in dispute having frontage of about 9' and width of 51 '-52', which is lying vacant, but the Petitioners are occupying the shop in question. Further in para-17 of the plaint, the Respondent landlady also submitted that she is ready to settle Printing Press of his son in the said shop. These paras are quoted below. <JUDIMG>2208299-1</JUDIMG>

(3.) After the service of notices, the Petitioners turned up but denying the assertions made by the Respondent the Petitioners filed written statement in four sets (one set filed by petition No. 7, second set filed by Petitioner Nos. 6 & 2, third set filed by Petitioner Nos. 5 & 1 and fourth set filed by Petitioner Nos. 3 & 4. In their written statement they denied the need of landlady. They submitted that Anurag Sharma is engaged with his family business. They further submitted in the written statement that applicant-landlady has deliberately concealed the properties belonging to her family. She and her family have a big house in Bhawaniganj, Ram Nagar, which is vacant. The offer made by the Respondent in paragraph-17 of the plaint was denied by the Petitioners. Thereafter, the parties led their evidence before the Prescribed Authority. The learned Prescribed Authority vide order dated 06.03.2006 allowed the release application of the Respondent. Aggrieved with the order dated 06.03.2006, the Petitioners preferred the Rent Control Appeal No. 5 of 2006 before the District Judge, Nainital and the learned District Judge vide order dated 17.11.2009 dismissed the appeal. Being aggrieved with the order dated 17.11.2009, the Petitioner have filed the instant petition.