{"id":189257,"date":"2002-12-17T00:00:00","date_gmt":"2002-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sushila-vs-iind-addl-district-judge-banda-on-17-december-2002"},"modified":"2018-09-02T11:38:47","modified_gmt":"2018-09-02T06:08:47","slug":"sushila-vs-iind-addl-district-judge-banda-on-17-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sushila-vs-iind-addl-district-judge-banda-on-17-december-2002","title":{"rendered":"Sushila ] vs Iind Addl.District Judge, Banda & … on 17 December, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sushila ] vs Iind Addl.District Judge, Banda & … on 17 December, 2002<\/div>\n
Author: B Kumar<\/div>\n
Bench: R.C.Lahoti, Brijesh Kumar.<\/div>\n
           CASE NO.:\nAppeal (civil)  5124 of 1998\n\nPETITIONER:\nSushila\t\t\t\t\t\t\t]\n\nRESPONDENT:\nIInd Addl.District Judge, Banda & Ors.\n\nDATE OF JUDGMENT: 17\/12\/2002\n\nBENCH:\nR.C.Lahoti & Brijesh Kumar.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
BRIJESH KUMAR, J.\n<\/p>\n
\tThe dispute in this appeal relates to a shop under
\nthe tenancy of the respondent – Baij Nath.  The petitioner-
\nlandlady had purchased the shop in question in the year 1977
\nfrom one Smt.Kanti Devi.  It measures 2 x 5.3  meters.\tThe
\npetitioner moved a petition under Section 21 (1)(a) of the
\nU.P.Urban Buildings (Regulation of Letting, Rent and Eviction)
\nAct, 1972 (for short ‘the Act’) on the ground of bonafide need
\nto settle  her major and married son in life, who was to start
\nthe business of electrical goods and utensils in the shop in
\nquestion.  The petition was contested unsuccessfully by the
\nrespondent-Baij Nath.\tThe appeal preferred by the tenant-
\nrespondent was, however, allowed.  The writ petition filed by
\nthe petitioner in the High Court was dismissed upholding the
\norder of reversal passed in appeal,  observing that under the
\nwrit jurisdiction findings of  fact cannot be disturbed\t unless
\nthey are manifestly unjust.   Hence,  this appeal impugning
\nthe order of the High Court.\n<\/p>\n
\tThe appellant-landlady, as noted earlier,  had
\npurchased the disputed shop in August, 1977, when her
\nchildren were not grown up.  Her eldest son Prem Prakash was
\nlater married and had also passed some electrical certificate
\ncourse from I.T.I. Banda  but he remained unemployed.  It was
\nthus necessary to get the shop\tvacated for her son to start
\nhis own business in electrical goods and utensils.  It may be
\nmentioned  here that there is another shop adjacent to the
\nshop in question which too was purchased at the same time
\ni.e. in the year 1977 by her husband who is carrying on\t his
\nwork as Goldsmith and money lending business in that shop.
\nShe had also come forward with a case  that her relations with
\nher husband have not been cordial but it has not been
\naccepted by the courts below.  The shop in question was
\ninitially in the tenancy of Mool Chand, father of the
\nrespondent Baij Nath who was carrying on  kirana business in
\nthe said shop.\tAfter the death of Mool chand, Baij Nath
\nstarted the business in that shop.  According to the
\nrespondent it was not correct that shop in question was
\nneeded by the landlady.\t  It has also been his case that at the
\ntime of the purchase of the shop in question petitioner knew
\nthat it was in occupation of the tenant.  It was also alleged
\nthat husband of the appellant had purchased yet another shop
\nin Chowk  Bazar in the name of his brother-in-law Khunni; it
\nhas however not been found proved by the Courts.
\n\tAccording to the petitioner-landlady Baij Nath-the
\ntenant has a shop in Gursahai Road as well as another shop
\nin Chowk Bazar which was purchased by him.  In so far the
\nshop in Gursahai Road is concerned, according to  the
\nrespondent, prior to the death of his father Mool Chand he
\nhimself had been running his shop in Gursahai Road but after
\nthe death of Mool Chand he started his business in the shop
\nin question and he established his son Rajendra Kumar in the
\nshop in Gursahai Road.\t  In regard to the other shop,\this
\ncase is that it is a residential house and not a shop but it has
\nnot been accepted by the Prescribed Authority.\tIt has also
\nbeen found that the said shop is quite near to the shop in
\nquestion.  Considering all the facts and circumstances, the
\ntrial Court allowed the petition with a finding that the landlady
\nhad bonafide need which was  more pressing as compared to
\nthat of the tenant and thus ordered for his  eviction.
\nThe appellate court, while allowing the appeal filed by the
\ntenant-respondent, held that the petitioner-landlady failed to
\nprove that the shop was needed by her bonafide\tfor her son.
\nOn the question of comparative hardship it has been held that
\nin case the application is allowed the tenant would suffer
\ngreater hardship as he has  been the tenant of the
\naccommodation since a very long time. The appellate court has
\nupset  the findings recorded by the trial court which is though
\npermissible but in doing so the whole approach of the
\nappellate court seems to be quite unjustified and legally
\nunsustainable.\t At one place the appellate court tried to doubt
\nthe certificate of Prem Prakash having undergone electrical
\ntraining course from the Industrial Training Institute, Banda
\non the ground that his residence was shown as village
\nLukhtara whereas the industrial training institute was in
\nBanda.\tIt is then observed at another place that it had not
\nbeen indicated as to what kind of job Prem Prakash could get
\nin the government with the certificate he possessed.  Yet
\nanother reason which  strongly weighed with the appellate
\ncourt was that as to  why it could not be possible for Prem
\nPrakash to work with his father at the latter’s\t shop which is
\nadjacent to the shop in question.  Moreso, if phoopha
\n(husband of the sister of father of Prem Prakash) could work
\nwith his father then Prem Prakash could also work there.
\nWe find that  Prem Prakash is a young man who is
\nunemployed.  He is married and has children.  There is every
\njustification for him or for his mother\t  to settle  him in life
\nindependently.\t He cannot be compelled to join his father in
\nhis  Goldsmith and money lending work in his small shop.  In
\nour opinion,  he is  entitled to start\tbusiness of his own choice
\nand independently.  The appellate court took a view, as
\nindicated above, which is palpably wrong and wholly
\nunacceptable.\n<\/p>\n
The petitioner’s case that Baij Nath has one  shop in the
\nhouse purchased by him in Chowk Bazar,\tthe respondent had
\nadmitted only to the extent that he had purchased the house
\nbut denied existence of any shop.  To prove the fact, it appears
\nthat the petitioner-appellant filed copy of the\t sale-deed.   The
\nappellate court observed “on the other hand it is clear on
\nperusal of the sale-deed that the sale-deed of only house was
\nexecuted in favour of the opposite party”.  In this connection
\nlearned counsel for the petitioner has drawn our attention to
\nthe copy of the sale-deed which is on the record.  The
\nnarration in the sale-deed is to the effect that the vendor had
\npurchased the house as bounded in the sale-deed in Mohalla
\nChowk Bazar including the shop from one Duli Chand in 1937
\nand the aforesaid property was being transferred in favour of
\nBaij Nath.  It leaves no doubt that the sale-deed was in respect
\nof the house as well as the shop.  It is surprising to find that
\nthe appellate court came to the conclusion that the sale-deed
\nwas  in respect of the house alone.  This is a clear  mis-reading
\nof the document.  Therefore, the conclusion drawn by the
\nappellate court that the sale-deed was only in respect of the
\nhouse without including a shop\tis also\t vitiated.  It is thus
\nclear that Baij Nath has another shop at his disposal in
\nChowk Bazar.\n<\/p>\n
We may now, at the very outset, point out that learned
\ncounsel for the respondent has very fairly and rightly conceded
\nthat he would not dispute the bonafide need of the petitioner
\nfor the shop to\t establish her son Prem Prakash. He has,
\nhowever, submitted that the petition is liable to fail on
\nconsideration of comparative hardship of the tenant and the
\nlandlord, which shall be more to the tenant in the light of sub-
\nrule (2) of Rule 16 of the U.P.Urban Buildings (Regulation of
\nLetting, Rent and Eviction) Rules, 1972.  The fourth proviso to
\nSection 21(1) of the Act relevant in that connection reads as
\nunder :\n<\/p>\n
“21.Proceedings for release of building
\nunder occupation of tenant.-\n<\/p>\n
(1) The prescribed authority may, on an
\napplication of the landlord in that behalf, order
\nthe eviction of a tenant from the building
\nunder tenancy or any specified part thereof if it
\nis satisfied that any of the following grounds
\nnamely –\n<\/p>\n
xx\t\t\txx\t\t\txxx
\nProvided also that the prescribed authority
\nshall, except in cases provided for in the
\nExplanation, take into account the likely
\nhardship to the tenant from the grant of the
\napplication as against the likely hardship to
\nthe landlord from the refusal of the application
\nand for that purpose shall have regard to such
\nfactors as may be prescribed.”\n<\/p>\n
Sub-Rule (2) of Rule 16 is quoted below :\n<\/p>\n
“16. Application for release on the
\nground of personal requirement
\n[Sections 21(1)(a) and 34(8)] –\n<\/p>\n
(1)\t\txxx\t\t\txxx<\/p>\n
(2) While considering an application for
\nrelease under clause (a) of sub-section (1)
\nof Section 21 in respect of a building let
\nout for purposes of any business, the
\nprescribed authority shall also have
\nregard to such facts as the following –\n<\/p>\n
(a)\tthe greater the period since when the
\ntenant opposite party, or the original
\ntenant whose heir the opposite party
\nis, has been carrying on his business
\nin that building, the less the
\njustification for allowing the
\napplication;\n<\/p>\n
(b)\twhere the tenant has available with
\nhim suitable accommodation to which
\nhe can shift his business without
\nsubstantial loss there shall be greater
\njustification for allowing the
\napplication;\n<\/p>\n
(c)\tthe greater the existing business of
\nthe landlords own, apart from the
\nbusiness proposed to be set up in the
\nleased premises, the less the
\njustification for allowing the
\napplication, and even if an application
\nis allowed in such a case, the
\nprescribed authority may on the
\napplication of the tenant impose the
\ncondition where the landlord has
\navailable him other accommodation
\n(whether subject to the Act or not)
\nwhich is not suitable for his own
\nproposed business but may serve the
\npurpose of the tenant, that the
\nlandlord shall let out that
\naccommodation to the tenant on a fair
\nrent to be fixed by the prescribed
\nauthority;\n<\/p>\n
(d)\twhere a son or unmarried or widowed
\nor divorced or judicially separated
\ndaughter of a male lineal descendent
\nof the landlord has, after the building
\nwas originally let out, completed his
\nor her technical education and is not
\nemployed in Government service, and
\nwants to engage in self-employment,
\nhis or her need shall be given due
\nconsideration.\n<\/p>\n
(3)\t\txxx\t\t\txxxx ”\n<\/p>\n
\tBefore considering the provisions contained in the above
\nnoted sub-rule, we may analyse the factual position.  Both
\nparties have large families.  Father of the respondent Baij Nath
\nhad been running the kirana shop since long.  The shop was
\npurchased by the petitioner in the year 1977.  Her husband
\nhad also purchased a shop at the same time which is adjacent
\nto the shop in dispute.\t He is a goldsmith and also runs money
\nlending business in his shop.  Children of the petitioner have
\ngrown up in course of time and Prem Prakash meanwhile was
\nmarried and has children.  Prem Prakash is the eldest son.  He
\nis unemployed.\tHe has two other brothers younger to him.  So
\nfar Baij Nath is concerned, initially his father had been
\nrunning his shop in the accommodation in dispute.   Baij Nath
\nwas running his shop separately in Gursahai Road.  Thus his
\nbusiness and shop were separate from his father Mool Chand.
\nBut on the death of Mool Chand he started his business in the
\nshop in question and established his son in the shop which
\nwas being run by him in Gursahai Road.\tHe also has a shop
\nin Chowk Bazar which fact is well established by the sale-deed
\nexecuted in his favour by his vendor.  From the evidence on
\nrecord it also transpires that there are other shops also
\naround the area.  Therefore, it cannot be said that he cannot
\nrun his shop in that area as found by the Prescribed
\nAuthority.  As a matter of fact, in one of the rejoinder affidavits
\nit is indicated that in some of the shops in Chowk  Bazar he is
\nalso running a tailoring school.  Be that as it may, the fact
\nremains that at least one shop other than one in the tenancy
\nis available to\t the tenant which fact he initially tried to
\nsuppress.   As a matter of fact, he himself was initially settled
\nin his own separate business in another shop in Gursahai
\nRoad and had shifted to the shop in question on the death of
\nhis father handing over the other shop in Gursahai Road to
\nhis son for his\t proper settlement and employment.  He could
\nvery well shift his son in the shop which was purchased by
\nhim in Chowk Bazar or if he wanted to shift from Gursahai
\nRoad  he could himself have shifted  to that shop.  Presently,
\nhe has two shops; one for himself, the other for his son and at
\nleast one more in Chowk Bazar.\tSo far as the petitioner is
\nconcerned, she has no other shop where she can establish her
\nmarried son who is unemployed.\tIn such circumstances, the
\nonly fact that the shop in question is in possession of the
\ntenant since long will have no material bearing in deciding the
\nquestion of comparative hardship.  To say that son of the
\npetitioner-landlady may remain unemployed but the shop in
\nquestion must continue to remain in occupancy of the tenant
\nto whom yet another shop is available in Chowk Bazar would
\nnot withstand the guidelines and tests laid down in sub-rule
\n(2) of Rule 16 of the Rules of 1972.\n<\/p>\n
\tA bare perusal\tof Rules 16 of the U.P. Urban Buildings
\n(Regulation of Letting, Rent and Eviction)  Rules, 1972 , makes
\nit clear that the rule only prescribes certain factors which have
\nalso to be taken into account while considering the application
\nfor eviction of a tenant on the ground of bonafide need.  Sub
\nRule 2 of Rule 16 quoted earlier relates to the cases of eviction
\nfrom an accommodation for business use.\t Clause (a) of Sub
\nRule 2 provides,  greater the\tperiod of tenancy   less the
\njustification for allowing the application;  whereas according to
\nClause (b) in case tenant has a suitable accommodation
\navailable to him to shift his business,\t greater the justification
\nto allow the application.  Availability of another suitable
\naccommodation to the tenant, waters  down the weight
\nattached to the\t longer period of    tenancy as a factor to be
\nconsidered as provided under Clause (a) of Sub Rule 2 of Rule\n<\/p>\n
16.  Yet another factor which may in some cases be relevant
\nunder clause (c) is where the existing business of the landlord
\nis quite huge and extensive leaving  aside the\tproposed
\nbusiness to be set up, there would be lesser justification to
\nallow the application.\tThe idea behind sub clause (c) is
\napparent i.e. where the landlord runs a huge business eviction
\nmay not be resorted to for expansion or diversification of the
\nbusiness by uprooting a tenant having a small business for a
\nvery long period of time.  In such a situation if eviction is
\nordered it is definitely bound to cause greater hardship to the
\ntenant.\n<\/p>\n
In the case in hand we find that even though the period
\nof tenancy of the respondent is no doubt long but availability
\nof another shop to him where he can very well shift his
\nbusiness as found by the Prescribed Authority,\tneutralises
\nthe factor of length of tenancy in the accommodation in
\ndispute.  We   further find that the landlady has no other shop
\nwhere  she can establish her son who is married and
\nunemployed.  There is nothing on the record to indicate that
\nthe business of father of Prem\tParkash is so huge or that it is
\na very flourishing  business so as to attract application of
\nClause [c] of Rule 16(2).  As observed earlier it is clear that
\nlength of period of tenancy as provided under clause (a) of Sub
\nRule 2 of Rule 16 of the Rules, 1972 is only one of the\t factors
\nto be taken into account in context with other facts and
\ncircumstances of the case.  It\tcannot be a sole criterion or
\ndeciding factor to order or not the  eviction of the tenant.
\nConsidering  the facts in the light of Rule 16\tpressed into
\nservice on behalf of the respondent,  we find that  according to
\nthe guidelines provided therein balance tilts in favour of the
\nunemployed son of the landlady whose need is  certainly
\nbonafide and has also been so accepted by the respondent
\nbefore us.\n<\/p>\n
It   may be mentioned that  we are not taking into
\naccount\t of  Clause   (d) of Sub Rule 2 Rule 16 of the Rules;
\nwhere yet another factor is to be  borne in mind,  in favour of
\nreleasing the shop, if the person has some technical education
\nto his credit but not employed in any government service and
\nwants to engage in self-employment.  The Petitioner had
\nshown that her son Prem Parkash had undergone a training
\ncourse in household electrical wiring and had obtained a
\ncertificate from Industrial Training Institute, Banda. He did
\nnot get any government job and wanted to be self-employed by
\nstarting a shop of electrical goods and\t utensils.  The
\nPrescribed Authority considered this factor but we find that
\nthe appellate court expressed doubt on the fact that the
\ncertificate related to Prem Parkash being lead by  the fact that
\nhis residence was shown as village Lukhtara,  undisputedly
\nthat village also falls in the district of Banda.      It was also
\nobserved by the appellate court that it could not be shown as
\nto what government job Prem Parkash could get by virtue of
\nthe certificate he had obtained from Industrial Training
\nInstitute, Banda.  The whole approach to the point was
\nmisdirected.   Be that as it may,  we make it clear that even by
\nexcluding the factor of Prem Parkash being technically
\neducated,  otherwise as well we find that the need and
\nrequirement of the landlady is bonafide even after considering
\nthe same in the light of Rule 16 of the Rules and in the
\nbackground of comparative hardship which we find would be
\nmore to the landlady, in the event of disallowing the
\napplication for eviction.\n<\/p>\n
\tIn view of the above discussions we feel  that the
\nappellate court was in error in setting aside the order passed
\nby the trial court allowing the application of the petitioner-
\nlandlady and the High Court also erred in  dealing with the
\nmatter mechanically.\n<\/p>\n
\tIn the result, the appeal is allowed with costs
\nthroughout.  The judgments and orders passed by the High
\nCourt as well as the appellate court are set aside and the order
\npassed by the Munsif (Prescribed Authority) Banda allowing
\npetitioner’s application for eviction of tenant-Baij Nath is
\nrestored.\n<\/p>\n
\tThe shop being in possession of the respondent
\nno.1  since long, we allow him\tfour months’ time  to hand-
\nover its vacant possession to the petitioner-landlady, on his
\nclearing all  the arrears of rent, if any,     and    on continuing
\nto  pay\t the  same   regularly and further on furnishing the
\nusual undertaking to that effect in this court within a period of
\nfour weeks from today.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sushila ] vs Iind Addl.District Judge, Banda & … on 17 December, 2002 Author: B Kumar Bench: R.C.Lahoti, Brijesh Kumar. CASE NO.: Appeal (civil) 5124 of 1998 PETITIONER: Sushila ] RESPONDENT: IInd Addl.District Judge, Banda & Ors. DATE OF JUDGMENT: 17\/12\/2002 BENCH: R.C.Lahoti & Brijesh Kumar. JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-189257","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSushila ] vs Iind Addl.District Judge, Banda & ... on 17 December, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sushila-vs-iind-addl-district-judge-banda-on-17-december-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sushila ] vs Iind Addl.District Judge, Banda & ... on 17 December, 2002 - 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