DEVESHWAR SHARMA Vs. IVTH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) BY means of the present writ petition, the petitioner has prayed for quashing of the judgment and order dated 18.10.1995 passed by IVth Addl. District Judge, Bijnor in Rent Control Appeal No. 23 of 1983, Deveshwar Sharma v. Virendra Kumar Gupta and others.

(2.) HEARD the learned Counsel for the petitioner Sri P.K. Jain and Sr. Deoraj Singh, learned Counsel for the respondents. Sri Dev Raj Singh did not intend to file counter-affidavit and as such the hearing proceeded at the stage of admission.

(3.) AFTER the death of Virendra Kumar, it has been pleaded in the pleadings by way of amendment that Virendra Kumar left behind a widow, namely Shrimati Shakuntala, four sons and three daughters. One of the daughters, namely Indu Gupta is a widow and the other two daughters, namely, Chitra Gupta and Uma Rastogi are married daughters. The contention of the learned Counsel for the petitioner is that in Section 3(g) of U.P. Act No. 13 of 1972, the definition of the 'family' in relation to a landlord and tenant of a building has been given according to which married daughters do not come within the definition of the family. His further contention is that this Court in its judgment dated 7.12.1994 had observed that the specific pleading by way of amendment in the written statement was taken to the effect that the widow and sons of Virendra Kumar are settled and residing in their own house in Dehradun and the daughters are living at the places of their husbands. The learned IVth Additional District Judge did not investigate into said facts nor addressed himself to the same. The need of a landlord of release by ousting a tenant should not be based on mere presumptions. It has to be real pressing and bona fide. It was, therefore, directed by the High Court to the learned lower appellate Court that the parties may be called upon to specifically lead evidence touching these questions and then to decide whether or not legal representatives of late Virendra Kumar have bona fide requirement of the premises in question and after so doing he was required to address himself to the question of comparative hardship keeping in mind also the provisions of Rule 16(1) of the Rules framed under the Act, but the learned lower appellate the Court did not follow the directions of this Court and did not observe the facts and circumstances addressing himself regarding the bona fide requirement of legal repesentatives of late Virendra Kumar. He has submitted that one of the sons of late Virendra Kumar is Branch Manager in Punjab National Bank and an affidavit to this effect was filed by the petitioner and even his telephone number was mentioned in the affidavit and the said facts were not denied by any of the brothers by filing affidavit. In spite of that the same was not considered and the burden was wrongly shifted upon the petitioners by the learned counsel below.