PRAMOD PRAKASH Vs. IIIRD ADDL DISTRICT JUDGE MEERUT

JUDGEMENT

(1.) VIKRAM Nath, J. This writ petition has been filed by the landlord for quashing the judgment and order dated 12-10-1987 and 2-9-1985 passed by respondents 2 and 1 respectively whereby the application of the petitioner for release of the premises in dispute under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) has been dismissed and the appeal against the same has also been dismissed.

(2.) THE dispute relates to house No. 97 Khandak Bazar, Meerut of which the petitioner along with his brother Prem Prakash are the owners. On the first floor of the said building, the respondent No. 3 is a tenant. Originally, one Sri Gopal was the owner of the house in dispute. However, after his death pursuant to the partition between the brothers two third portion of the tenanted accommodation went to share of Hem Prakash and one third fell in the share of the petitioner. Accordingly, the rent which was being received by Sri Gopal father of the petitioner was proportionately divided between two brothers. Sri Hem Prakash sold his share in premises in dispute to Sri Raj Kishore Sharma. Further, the petitioner alongwith his family members was residing in his tenanted accommodation at 62, Dalampara, Meerut city. THE family of the petitioner consisted of himself, his wife, two sons and two daughters. THE accommodation available to the petitioner was three rooms and three veranda. When the elder son of the petitioner became of marriageable age the petitioner applied for release of his portion in the tenancy of the respondent No. 3 in order to settle his eldest son. THE release application was filed on 21- 6-1983 and was registered as P. A. Case No. 109 of 1983. In para 9 of the release application it was specifically averred that the defendant tenant had purchased a residential building bearing No. 145 Bhatwara, Meerut City in the year 1968 and the said building was in his possession which comprised of six rooms, kitchen, bathroom and latrine etc. where the tenant could easily shift and would not suffer any hardship. This fact was disputed by the tenant in his written statement. Prescribed Authority vide judgment dated 2-9-1985 did not find the petitioner landlord to have bona fide need of the premises in dispute and accordingly rejected the release application. It further recorded a finding that there was no evidence on record placed by the landlord to establish that the tenant was the owner of the house No. 145 Bhatwara, Meerut. Aggrieved by the same the petitioner filed appeal under Section 22 of the Act which was registered as Misc. Appeal No. 325 of 1985. During pendency of the appeal the petitioner learnt that the tenant had again purchased house No. 145 Bhatwara, Meerut vide registered sale-deed dated 23-8-1985. After obtaining certificate copy of the sale-deed it was filed along with an affidavit dated 15-10-1986 before the Appellate Court. Counter- affidavit dated 25-3-1987 was also filed by the tenant in reply which has been filed as Annexure-CA-6 to the counter-affidavit. THE Appellate Court vide judgment dated 12-10-1987 dismissed the appeal. Aggrieved by the same the landlord has filed the present writ petition.

(3.) SRI U. K. Saxena learned Counsel for the respondent has contended that the landlord failed to bring any amendment in the pleadings while filing the certified copy of the sale-deed and therefore, even if the Court could have taken note of the sale-deed it would not be any help to the landlord in as much as evidence is to be considered only in support of the pleadings and in absence of any specific pleadings mere filing of the said affidavit could not be of any benefit to the landlord. He has further contended that before the Appellate Court the tenant had specifically averred in his affidavit that house No. 145 Bhatwara was not a residential accommodation and was exclusively being used for commercial/non- residential purposes and as such also the landlord could not derive any advantage from the sale-deed.