HANEEF KHAN Vs. AMIR AHMAD

JUDGEMENT

(1.) HEARD Sri Ajay Kumar Sharma learned Counsel for the tenant petitioner and Sri M.K. Gupta, learned Counsel for landlord -respondent, who appeared through caveat. On 28.10.2005 I directed learned Counsel for both the parties to consult their clients regarding exchange of the shops. This was done in view of the fact that even the Trial Court, which had rejected the release application of landlord -respondent (Amir Ahmad v. Mohd. Haneef P.A. Case No. 62 of 1995), had held that a shop on the first floor of the same building in which shop in dispute is situated, known as Taj Building, was available to the landlord which was previously in occupation of Lions Finance. Prescribed Authority had also held that even though the said shop was situated on the first floor but the entire Taj Building was situated in Lohani Sarai and ground floor as well as first floor of the said building contained shops and the entire market was for selling steel/iron goods and was famous for that. Prescribed authority had held that landlord could settle his son Mohd. Usman for whose need the release application was filed on the first floor shop. On behalf of landlord -respondent today affidavit of Mohd. Usman son of landlord -respondent has been filed in which it has been stated that landlord is ready to offer the said shop to the tenant on monthly rent of Rs. 1,000/ - per month (rent of the shop in dispute is Rs. 60/ - per month) and water tax of Rs. 8.00 per month is also payable.

(2.) LEARNED Counsel for the tenant -petitioner has argued that the need of the landlord is not at all bona fide as another shop in the same building which was initially in possession of one Abdul Rashid was forcibly taken into possession by the landlord after the death of Abdul Rashid and was let out to one Tahir. In respect of the said shop legal representatives of Abdul Rashid filed suit against landlord -respondent and Tahir. According to the learned Counsel for landlord -respondent the allegation in the said plaint is that one of the brothers of plaintiff Sri Abdul Sattar in collusion with the landlord gave possession of the shop in dispute to Tahir. In any case, as the said shop is subject matter of the suit, hence it cannot be said to be readily available to the landlord. Unless the said suit is decided it can not be said as to whether landlord himself gave the shop to Tahir or it was Abdul Sattar - -one of the heirs of late Abdul Rashid, who had given the shop to Tahir.

(3.) AFTER hearing learned Counsel for both the parties I am fully satisfied that there is absolutely no error in the findings of the Appellate Court regarding bona fide need of the landlord for settling his son Mohd. Usman in the shop in dispute. However, in view of the fact that on first floor in Taj Building where shop in dispute is situate landlord has got another shop, which has been vacated by Lions Finance, it is a fit case for exchange of the shops. Landlord has express willingness through affidavit of his son. Learned Counsel for the tenant has vehemently argued that firstly, release application must be rejected and secondly, if the exchange is to take place, then he must be given the shop situated in Habib Building. I am of the opinion that as in the said shop landlord himself is carrying on business hence it will not be just and proper to direct to exchange the shop in dispute with that shop.