MOHD HASAN Vs. SHAFIQ AHMAD

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and Sri Mukhtar Alam for the respondent landlord. This petition is directed against concurrent orders dated 16.2.2008 and 31.3.2009 by which both the courts below have allowed the release application of the respondent landlord. The landlord filed an application under Section 21(1)(a) of U.P. Act No.13 of 1972 claiming release of the two shops which were in the tenancy of the petitioner @ Rs.350/- per month with the allegation that he needed the two shops for establishing his son Taslim Ahmad, who was married with an issue, but without any occupation and they had decided to open a shop dealing in diesel generating sets, electrical motors and motor and generator parts apart from establishing a show room by removing the partition wall between the two shops and for which he did not have any other accommodation available. It was further pleaded that the petitioner tenant converted the usage of the shop and uses it as a tea the sweet shop. The tenant filed his objection stating that he was running a sweet shop in the disputed premises where he has earned good-will and the landlord did not have any bonafide need as several newly constructed shops were available to him which he could utilise for his son and he has a large family to support and there was no other source of income except the disputed shop. After the parties had entered their evidence, both the courts have allowed the application holding that the need of the landlord was bonafide and pressing and the business which is sought to be started from the disputed shop, could not be conducted from the newly constructed shop and even though an alternative accommodation was offered by the landlord, the tenant refused and thus allowed the application. It is urged on behalf of the petitioner that since the landlord did not disclose that other newly constructed shops were in his occupation and therefore had suppressed this fact and the courts on this very ground ought to have rejected the application. In support of his contention, he has relied upon the decision of the Apex Court rendered in the case of Kishan Chand vs. Jagdish Prasad and others(2003 Allahabad Civil Journal 2252). There cannot be any quarrel with the proposition which has also been reiterated by the aforesaid decision of the Apex Court, but the crucial fact would be whether in fact the landlord had concealed the material facts. In the present case it was the specific case of the landlord that he has to establish the business of selling diesel generating sets and electrical motors apart from its spare parts and also to establish show room for that purpose. Admittedly, the newly constructed rooms are not on the main road but inside a by-lane and both the courts below have returned a finding of fact that the diesel generating sets and electrical motors and their spare parts have necessarily to be transported on a heavy vehicle and which vehicle could not enter the narrow by-lane in which the newly constructed shops were situated. Therefore, it cannot said that there was any suppression because the nature of the business for which it was required, could not be carried out from the newly constructed shops. Had the need been set up for other purposes like running a general merchandise shop or garments etc., then it may have amounted to suppression, but the specific need set was of heavy machinery items which could not be satisfied by the newly constructed shops which were in the by-lane. Accordingly, the argument cannot be accepted. The contention that the landlord has other shops available can also not be accepted for the reasons given above and given by the courts below that for the purposes for which it was required, the other newly constructed shops did not satisfy the requirement. In fact the landlord had offered two shops from the newly constructed shops to the petitioner on the same rent which he was paying for the disputed shop, but this alternative accommodation offered by the landlord was not accepted by the tenant on the ground that his tea and sweet shop would not run in the by-lane. If this very reason is applied to the landlord, there can be no other conclusion except that the need of the landlord was genuine and bonafide and also that the comparative hardship rests also in his favour. Both the courts below have considered the arguments and evidence in detail and have returned findings of fact which have not been demonstrated to be erroneous or perverse. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected. However, in case the petitioner gives an undertaking within three weeks from today before the trial court that he would vacate the premises and handover peaceful possession to the landlord within three months from today, his eviction shall remain stayed for three months from today. The petitioner shall also deposit the entire rent and mesne profit etc. including advance rent of three months within three weeks from today. In case of failure to comply with any of the conditions, the order shall automatically stand discharged and the petitioner would be liable to eviction forthwith.