Court No. - 7 Case :- WRIT - A No. - 41477 of 2010 Petitioner :- Vimal Kumar Respondent :- Smt. Ram Shree Gupta And Others Petitioner Counsel :- Anurag Khanna,Nipun Singh Respondent Counsel :- B. B. Jauhari Hon'ble Devendra Pratap Singh,J.
Heard learned counsel for the petitioner and the learned counsel for
the respondent-caveator.
This petition by the tenant is directed against concurrent orders
dated 22.3.2010 and 15.6.2010 by which both the courts below have
allowed the release application.
It appears that Shiv Prakash, the father of the respondent-landlord,
filed a release application which was registered as P.A. Case no.1 of 2004
inter-alia with the allegation that Bhawani Prasad, father of the petitioner,
was the original tenant of the disputed shop at the rate of Rs.50/- per
month and after his death, the petitioner being his legal heir inherited the
tenancy of the shop in dispute. It was further alleged that the family of
the landlord was very large and nearly all the members are doing their
own business but the applicant who was helping his brother in his
business, has been asked to start his own business. Due to family
partition, except the disputed shop, he had no other place. However,
during the pendency of the release application, Shiv Prakash Gupta died
survived by his wife, four daughters and a minor son who set up a case
that she wanted to start a business of selling bangles from the disputed
shop as she has no other source of income and she has to take care of
the family.
The tenant contested the application, inter-alia with the allegation
that the landlords had three shops in Sadar Bazar and in fact, they had
sold three shops in 2004 itself which showed that they had no genuine
need. It was further asserted that the landlord has a huge house with
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appurtenant land where she can open a shop.
After the parties had led their evidence, both the impugned orders
were passed allowing the release application.
It is firstly urged that the respondent-landlord had sold out three
shops recently and the courts below had not considered the effect
thereof.
The contention does not appear to be correct. The courts below
have considered this aspect in detail and have recorded a finding of fact
that the shops have been sold to the sitting tenant to raise money for the
marriage of the daughters. Even otherwise, shops were tenanted and,
therefore, were not available. The finding of fact recorded by the courts
below are based on evidence on record and cannot be interfered at this
stage.
It is then urged that Prem Chandra had vacated another shop which
was lying in vacant state and that can be occupied by the landlord.
The courts below after considering the evidence on record had
believed that the said shop was not available and was in possession of
one another brother Om Prakash who was utilizing it.
No other point has been urged.
For the reasons above, this is not a fit case for interference under
Article 226 of the Constitution of India. Rejected.
After the order was pronounced and before it could be transcribed,
the learned counsel for the petitioner, upon instruction of his client, has
given an undertaking that if a reasonable time is granted, he will
handover peaceful possession to the respondent-landlord without creating
any third party right. An affidavit to that effect has also been filed.
Considering the fact that the landlady is a widow whose husband
had died during the pendency of the release application and is looking
after four grown up daughters and a son, period of two months would
suffice in the facts of this case. Accordingly, the petitioner-tenant is
directed to handover peaceful and vacant possession of the disputed shop
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to the respondent-landlady on or before 1.10.2010 without creating any
third party rights and would also pay the rent uptil that date to the
landlady within a period of one month from today. In case of default of
paying rent, the petitioner shall be liable for eviction forthwith.
Order Date :- 22.7.2010
AU