JITENDRA SAIN Vs. KAMLA SHAH

JUDGEMENT

(1.) HEARD Shri Raman Kumar Sah, the learned counsel for the petitioners and Shri B.S. Adhikari, the learned counsel for respondent No. 1.

(2.) THE landlord-opposite party No.1 filed an application for the release of the shop in question on the ground of personal use for herself and for her daughter. It was alleged that the shop was initially given to one Nathu Ram who was running a hair-cutting saloon. Upon his death, the petitioners Jitendra Sain and Surendra Kumar became the tenants of the shop. THE landlord contended that they are not running the shop as they are gainfully employed and that they have sublet the shop to one Krishan Kumar who was running the shop in question. One of the opposite parties Jitendra Sain entered appearance and filed the written statement admitting that the original tenant was his father Nathu Ram and, upon his death, the tenancy devolved upon himself and upon his brother Surendra Kumar. THE opposite party Jitendra Sain admitted that he was employed in the employment exchange and that Surendra Kumar, his brother, was working in B.E.L. at Kotdwar and was also staying there. THE opposite party further admitted that his servant Krishan Kumar was running the hair cutting saloon on their behalf and that the rent was being paid by them.

(3.) HAVING heard the learned counsel for the parties and, having perused the record, the submission of the learned counsel for the petitioners is bereft of merit. Admittedly, the petitioners are the sons of the original tenant and, upon the death of the original tenant, they have become tenants in common. The release application was filed against them since it could only be filed against a tenant. The petitioners further submitted that they are paying the rent to the landlord and that Krishan Kumar was not a tenant nor was he paying the rent. In the light of the aforesaid, this Court is of the opinion that the application u/s 21 of Act was rightly instituted against the petitioners who are tenants of the landlord and who are paying the rent to the landlord. The lower appellate Court found that the need of the landlord was bonafide and that the shop was required for the need of the landlord and for the landlords daughter. To that extent, the finding given by the appellate court requires no interference in the writ jurisdiction. On the other hand, the Court below found that the petitioner Jitendra Sain was employed in an employment exchange and was not running the shop nor was there any need to him to run the shop when he was gainful employed. In so far as the second petitioner Surendra Kumar is concerned, the Court below found that he was staying at Kotdwar where he is working in B.E.L. factory. This court also finds that he did not contest the matter before the Court below. In the light of the aforesaid, the Court below rightly found that there was no need or requirement for the petitioners to use the shop for their own purpose.