AJAI ARORA Vs. KAILASH CHAND AND ANR.

JUDGEMENT

(1.) THIS writ petition has been filed by the landlord whose release application was allowed by the Prescribed Authority/Civil 'Judge (J.D.)/Nazibabad, Bijnore. However, Appellate Court allowed the appeal of the tenant and rejected the release application. Property in dispute consists of a ground floor shop having three doors towards south and one door towards west. First floor accommodation is in possession of the landlord, which consists of a room. Landlord pleaded that the accommodation was more than eighty years old and was in dilapidated condition. He asserted that he would demolish the existing construction and construct new shop for his own use. It was further pleaded that the tenant was not carrying on any business from the shop in dispute and he was carrying on business from a shop in Nai Mandi, Nazibabad Kotdwar road and he obtained licence for doing the business from New Mandi shop and that without the consent of the landlord tenant had handed over possession of the shop in dispute to his two brothers Suresh Chand and Hukum Chand. Suresh Chand was carrying on business of selling grain in 2/3rd part of the shop for which he had also taken licence and in the remaining 1/3rd portion the other brother Hukum Chand was carrying on the same business of selling grain for which he had also obtained licence. Landlord further stated that he was carrying on business alongwith his uncle Jai Prakash of selling Dabur products. That he had obtained dealership of selling Dabur goods for Nazibabad, Dhampur and Kirtapur and he intended to establish show -room in the shop in dispute after reconstructing the same. The landlord further stated that he was ready to let out 1/3rd of the newly constructed portion of the ground floor to the tenant. The tenant in his written statement denied all the allegations. Landlord also filed map of the new proposed construction, which has been passed by the Nagar Palika (Paper No. 40 Ga). Landlord also filed the report of expert J.S. Mathur retired engineer. Tenant filed report of architect D.K. Jain according to which the building was in sound condition. The Prescribed Authority/Civil Judge (J.D.), Nazibabad, Bijnore allowed the release application (P.A. Case No. 2/90) through judgment and order dated 20.3.1996. The Prescribed Authority held that the accommodation in dispute was not in dilapidated condition. However, the Prescribed Authority found the need of the landlord bonafide and also recorded the finding that petitioner alone was tenant in the shop in dispute who had shifted his business to Nazibabad Kotdwar road and was not carrying on any business from the shop in dispute and his brothers Suresh Chand and Hukum Chand who had no concern with the shop in dispute were carrying on business therefrom for which they had also obtained licence. The Prescribed Authority also recorded finding that landlord also offered to give 1/3rd of the newly constructed portion of the ground floor on rent to the tenant. Tenant petitioner filed appeal against the judgment of the Prescribed Authority being rent control appeal No. 24/96. IIIrd Additional District Judge, Bijnore by judgment and order dated 26.5.1998 allowed the appeal. This writ petition is directed against the aforesaid judgment passed by the Appellate Court. The Lower Appellate Court held that the need of the landlord was not bonafide as he was carrying on the business with his uncle Shri Jai Prakash in another shop the dimensions of which have to be given. The Lower Appellate Court further held that non -disclosure of dimension established that landlord had not come with clean hands. In my opinion this approach is wholly illegal. If a landlord is carrying on a business jointly with any of his relatives such as uncle in the instant case he is entitled to start his separate business irrespective the area or the extent of accommodation in which he is carrying on joint business with his relatives. Even if a landlord is carrying on a joint business with his father still he is entitled to start his separate business irrespective of extent of accommodation of joint business. The Lower Appellate Court has also held that as the room on the first floor of the shop in dispute is being used for storing the Dabur products by the landlord hence he has got no need. The landlord set up a need for show room. It is a matter of common knowledge that business carried out from the shops and show rooms on the ground floor is much more profitable than the business carried on from accommodations on first or second floor. A customer always prefers to visit and purchase goods from ground floor show rooms and shops. The other ground taken by the Lower Appellate Court is that a wholesale dealer does not require any show room and even if show room is required it need not be situated at convenient place. The approach of the Lower Appellate Court is again erroneous even whole sale business is likely to receive impetus if it is carried out from proper and well decorated show room situate at convenient place. The statement of the landlord that the business of selling Dabur products was carried out from the old shop since the time of his forefathers can also not be taken to discredit the case of the landlord. There is nothing wrong if the landlord wants to increase the business of his forefathers and do it at bigger scale from proper place.

(2.) LOWER Appellate Court in para -13 of the judgment has mentioned that in the written statement it was stated by the opposite party -tenant that one shop of the landlord was lying vacant while the statement of the landlord was that the said shop situate in Mohalla Santomalan was in possession of the tenant whose name was not disclosed. The Lower Appellate Court on the basis of the non -disclosure of the name of the tenants held that statement of the opposite party contained in para 29 of his written statement to the affect that one shop is vacant and in possession of the applicant shall be deemed to be correct.

(3.) THE Lower Appellate Court did not properly appreciate the legal implication of the facts that firstly, landlord offered to let out 1/3rd portion of the newly constructed shop to the tenant and secondly, the tenant had got another shop and was carrying on business therefrom. Even if it is assumed for the sake of the argument that other two brothers of tenant -respondent were also the tenants still availability of another shop by defendant -opposite party will have a material bearing on the decision of the case by virtue ofR.16(2)(b).