MISRI LAL Vs. II ADDL DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) :-

(2.) THE present petition has been filed by a tenant against an order passed by the Hnd Addl. District Judge Allahabad, allowing an appeal of the landlord and ordering his eviction from the premises in dispute under Section 21 (1) (a) /22 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, XIII of 1972 (hereinafter called the Act). THE learned counsel for the petitioner argued that the disputed premises were in the tenancy of the petitioner for the last twenty five years and he has been carrying on business therein. Earlier there has been litigation under section 3 of U. P. Act No. Ill of 1947 ; that litigation having failed, the landlord waited for sometime and thereafter an application under section 21 (1) (a) was moved almost on the same grounds. As the application was moved under section 21 (1) (a) after expiry of six months, the court below held that it was not barred by Rule 18 framed under the Act. THE Addl. District Judge has also found that the premises were used for residential purposes as well as for business purposes. THE upper portion, consisting of only one residential room, was being used for residential purposes; whereas the ground floor consisting two Dars was used for business purposes.

(3.) ONE thing, however, may be clarified that the fact that an earlier application on the same ground having been rejected is a relevant fact and that judgment could be seen under section 13 of the Indian Evidence Act and it will not be proper to throw out that judgment totally. However, since the application under section 3 of old Act was rejected and the present application under section 21 of U. P. Act No. XIII of 1972 was made and has been pending for a period of about nine years, the position of the parties have changed. It is true that the District Judge has made certain observations in his judgment on certain matters which are not very relevant for the purpose of the case ; for example another accommodation for residential purposes i. e. 164 Baluaghat was available to the landlord and one accommodation for business purposes 506 Muthiganj was released in favour of the landlord. He has held that it was the right of the landlord to choose the particular building where he wanted to start his business. The principle is not of universal application as stated by the court below. Where a choice is to be made between different tenants certainly the landlord has got to chose one for eviction. The other situation may be in a case where vacancy occurs in respect of several accommodations. The landlord has to chose the most suitable accommodation amongst them. Where sole tenant is to be evicted, there is no question of uprooting a sitting tenant if other accommodation was available. In the instant case, however, I find that the landlord's requirement has been found to be genuine and bonafide and that being a finding of fact is binding on me. Even on merits after considering the accommodation 164 Baluaghat, it has to be decided if the residential requirement of the landlord has been satisfied. The report of the Commissioner who inspected is Annexure 'IV' to the petition. A supplementary report submitted by the same Commissioner is filed as Annexure '6' to the counter Affidavit. Both these reports do not disclose that any portion is surplus with the landlord. House No. 471 Muthiganj which contains many rooms has also been reported to have been occupied fully by the landlord. However the tenant has placed that the upper portion of the disputed building was also being used for business purposes and not for residential purposes as his Beoparis stay there. Therefore, the residential requirement of the landlord or the tenant is not very relevant. What is relevant is the business accommodation available to the tenant and to the landlord. Only one business accommodation is available to the landlord i. e. 505 Muthiganj. According to the petitioner that accommodation is a fairly good accommodation for the purposes of business and the landlord could start business in the aforesaid building.