MOHD HUSAIN Vs. SPL ADJ GONDA

JUDGEMENT

(1.) THIS writ petition has been filed against the judgment and order dated 22.12.1990 passed by Special/Additional District Judge, Gonda in M.R.A. No.17 of 1988; Vishnu Prasad vs. Mohd. Husain and another whereby the learned Special/Additional District Judge, Gonda allowed the appeal setting aside the judgment and order dated 6.4.1988 passed by the Prescribed Authority in P.A. Case No.43 of 1984. The brief facts giving rise to the present petition are that the respondent no.2 Vishnu Prasad is the tenant of a shop, the landlords of which are the petitioner no.1 and the petitioner Nos. 2/1, 2/2, 2/3 and 2/4 (substituted as legal heirs of the co-landlord Mohd. Amin). An application under Section 21 of U.P. Urban Buildings Act (Act No.13 of 1972) was moved by the landlords for the release of the disputed shop on the ground of personal need, which was allowed by the Prescribed Authority. The judgment of the Prescribed Authority was reversed in the appeal hence this writ petition. I have heard learned counsel for the petitioner. However, none is present for the respondents even on the revision of the list. Learned counsel for the petitioners argues that the Additional District Judge wrongly shifted the burden of proof upon the writ petitioners on the wrong plea that once the appellant (respondent herein) has stated in his written statement that the sons of the landlord were the tenants of Munni Devi, the burden was upon the landlords to prove that they were not the tenants of Munni Devi. In this regard he drew my attention towards the finding given by the Prescribed Authority who stated that apart from papers available on record a copy of statement of Vishnu Prasad (tenant) given in SCC No.20 of 1985 is on record wherein the tenant Vishnu Prasad stated that he owns a residential house on roadside and it has 5-6 rooms and this house has a door opening towards the road. In the said statement the tenant Vishnu Prasad has also stated that when he went to give the rent to Mohd. Husain (petitioner), he was sitting on his shop alone and that this shop was on the footpath (Sadak ki patri) under a Neem tree. Vishnu Prasad, the tenant, has also stated that this shop of Mohd. Husain is of clothes. Learned Prescribed Authority on the basis of such statement of tenant Vishnu Prasad given in SCC No.20 of 1985 held that Mohd. Husain was not having any constructed shop and hence he was in the need of a constructed shop. Learned Prescribed Authority also held that the tenant has a constructed house on the roadside, having 5-6 rooms, the door of which opens on the road and it indicates that the tenant has alternative accommodation and has no hardship. Learned Additional District Judge in his judgment held that once it was stated in the written statement that landlord Mohd. Husain was the tenant of Munni Devi, the burden of proving the fact, that he was not the tenant of Munni Devi but was carrying on his shop on the footpath, lies upon the landlord Mohd. Husain. In this regard Section 103 of Evidence Act is helpful. It is being reproduced below:- "103. Burden of proof as to particular fact.- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person." Thus, under Section 103 of Evidence Act, the burden of proof regarding a fact lies upon a person who asserts such fact and not upon the opposite party. Once it was asserted by the tenant Vishnu Prasad that Mohd. Husain (landlord) is the tenant of a shop of Munni Devi, the burden to prove this fact lies upon the tenant Vishnu Prasad. Such burden could be shifted upon the other party if the slightest evidence could be adduced by the party asserting such fact. The tenant has not adduced even slightest evidence in support of his assertion that the landlord Mohd. Husain is the tenant of a shop of Munni Devi, hence, the burden of proof cannot shift upon the landlord. Learned Additional District Judge erred grossly in holding that burden of proof lies upon the landlord merely because it was stated in the written statement that landlord Mohd. Husain was the tenant of the shop of Munni Devi. The tenant Vishnu Prasad in his statement given in SCC No.20 of 1985 also stated that he owns a house on the roadside having its door on the road. The Prescribed Authority held that it also indicates that the hardship of the landlord was greater than the hardship of the tenant. THIS finding given by the Prescribed Authority is also reversed on the ground that this fact about alternative accommodation cannot be considered because this fact was stated by the landlord in his additional plaint only without making any amendment in the main plaint. The additional or supplementary application under Section 21 of the Act No.13 of 1972 has the same status as the main application under that provision. Additional District Judge thus committed another error in holding that the fact contained in additional application cannot be considered for want of the amendment in the main application. Besides the above, the tenant did not move any application for allotment of alternative accommodation as provided under Sub-rule (3) of Rule 10 framed under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. It also indicates that hardship of the landlord was greater than the hardship of the tenant. Relying upon Para 12 of the judgment given by another Bench of this Court in Prakash Chandra Gupta vs. District Judge, Unnao and others reported in 2005(23) LCD 336, I am of the view that lack of efforts of the tenant to get an alternative accommodation is a very strong circumstance showing that the hardship of the landlord was greater than the hardship of the tenant. In view of what has been discussed above I allow this writ petition setting aside the judgment and order dated 22.12.1990 passed by the Additional District Judge, Gonda in M.R.A. No.17 of 1988 and I uphold the judgment and order dated 6.4.1988 passed by the Prescribed Authority in P.A. Case No.42 of 1984. The tenant may be evicted from the shop after expiry of 30 days from today.