SURESH CHANDRA JAIN Vs. KRISHNA VERMA

JUDGEMENT

(1.) The respondent/landlord is the owner of a building in the Bazar of Sarai Sheikh, City and District - Etawah. The petitioner is the tenant of a Zeena Shop (Step Shop) since 1976 on a rent of Rs. 22 per month. The shop has a small space of 3 x 3 feet having only stair space opening into a narrow lane 5 feet wide which is referred to as 'Gali Sabzi Mandi'. The respondent/landlord filed a release application 21(1)(a) under Act No. XIII of 1972 being P.A. Case No. 6 of 2002 against the petitioner setting up a bona fide need for business of his son in the portion of the building (kotha) for which he needed the shop in question for opening a door on the northern wall of the (kotha) for access. The petitioner contested by filing objection to the application stating that the release application was mala fide with ulterior motive to get the shop in dispute vacated, no purpose would be served by opening the door to enter the kotha as the shop is situated in a lane which is 5 feet wide and is only suitable for small scale business. The Prescribed Authority/Civil Judge (Senior Division) Etawah rejected the application on 18 February 2010. Aggrieved, the respondent filed an appeal under Section 22 of the Act being P.A. Appeal No. 4 of 2010, which was allowed and the shop in question was released in favour of the respondent/landlord. Aggrieved by the appellate order dated 3.5.2012 the petitioner has come up in writ jurisdiction.

(2.) The submission of the learned counsel for the petitioner is that the appellate Court has incorrectly considered the bona fide need and the comparative hardship, the need of the shop was illusory and the hardship more in favour of the petitioner/tenant as compared to the landlord. The need was for a portion of the kotha and not for the shop in question, the shop was sought to be released so that the respondent/landlord may have access to the kotha.

(3.) It was further contended that the application is wholly mala fide as the respondent/landlord had sold a portion of the building which was under the tenancy of one Ram Nath. The respondent/landlord was fully aware that the ingress and egress from the kotha was only through shop no. 173, despite having knowledge of this fact, the respondent/landlord sold the remaining portion of shop no. 173 to Ram Nath without carving a passage for ingress and egress, therefore, the release was sought for the purposes of using the kotha for which the only passage left was the shop in dispute.