MOOLCHAND PRAKASH CHANDRA BIDIWALE Vs. ALAKH KUMAR GHOSH

JUDGEMENT

(1.) HEARD learned counsel for the parties and perused the record. The petitioner has prayed for a writ of certiorari quashing the judgment and order dated 15.9.2005 passed by the Prescribed Authority in P.A. Case No. 04 of 1998: Alakh Kumar Ghosh Vs. Messors Mool Chand Prakash Chand. The petitioner has also challenged the order dated 6.12.2010 passed by Additional District Judge, Room No. 2, Jhansi in Rent Appeal No. 09 of 2005: Messors Mool Chand Prakash Vs. Alakh Kumar Ghosh.

(2.) THE facts in brief are that the plaintiff-respondent instituted suit no. 04 of 1998: Alakh Kumar Ghosh Vs. M/S Mool Chand Prakash Chandra Bidiwale and another, for eviction of the petitioner-tenant, under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 on the ground of his personal need and hardship. The case of the plaintiff-respondent was that he is running a school in the name and style of New Era Public School wherein education is imparted to small kids; that he has purchased a two seater vehicle for bringing these children from home to school and from school to home, as such, the garage which was occupied by the petitioner is required for parking the aforesaid two seater. The suit was contested by the tenant by filing written statement denying plaint allegations, particularly that plaintiff-respondent owns two seater vehicle for small kids studying in the school. The case of petitioner-tenant before the Court below was that he has not defaulted in payment of rent and when the landlord refused to accept the rent, he had sent the same by money order which was also refused. Compelling him by circumstances to deposit the amount towards rent due, under Section 30 of U. P. Act No. 13 of 1972. After about four years of filing of the written statement, an amendment application appears to have been filed by the plaintiff-respondent under Order VI Rule 17 CPC stating therein that as his son has purchased an Indica car for which parking, space is also now required in the garage in dispute. Additional written statement was filed by the plaintiff-respondent rebutting the averments of the amendment application. It appears from the record that plaintiff-respondent had submitted rejoinder affidavit wherein it has been averred that share of his brother in plot no. 35/1 has been sold out and as such he has no other place except the garage in dispute.

(3.) WHILE decreeing the suit in respect of bonafide need, the trial court held as under: [VERNACULAR TEXT OMMITED] As regards question of hardship, the Prescribed Authority recorded a finding that it also lies in favour of respondent-landlord and the door at the height of 4 ft from plinth for entrance can be made easily and that the tenancy of the garage in dispute is Rs.3.75 per month and for this reason he is not vacating it compelling the landlord to park his vehicles in other persons' houses. The Court also noted that petitioner tenant is running his business of Bidi in the said premises. The finding recorded by the Prescribed Authority is thus: [VERNACULAR TEXT OMMITED] Aggrieved by the finding of the Prescribed Authority on the aforesaid two issues i.e. bonafide need and comparative hardship, the petitioner challenged the same in Rent Appeal No. 09 of 2005: Mool Chand Prakash Chand Vs. Alakh Kumar Ghosh, challenging the validity and correctness of order dated 15.9.2005 passed by the Prescribed Authority. Along with Rent Appeal, petitioner also moved an application for grant of stay/interim relief during pendency of appeal. The appellate Court initially granted interim order which was extended from time to time. The petitioner moved an application paper no. 32C/2 along with his affidavit paper no. 26C/2 for taking additional evidence on record before the appellate court stating therein that the plaintiff-respondent had purchased a plot and after construction of house, he is not only residing therein but is also keeping his Indica car in that premises. The averments made in the said affidavit filed by the petitioner were rebutted by the respondent-landlord stating that the said house is 4-5 kms from the school whereas the garage under occupation of the tenant is immediately adjacent to school and is required for parking of the vehicle for the children and also requires the garage for parking of Indica car used for school purpose.