G.N. Ray and G.T. Nanavati, JJ. - (1.) THIS appeal is directed against the judgment dated 22nd August, 1996 passed by the Allahabad High Court in Civil Misc. Writ Petition No. 23059 of 1994. The aforesaid writ petition was preferred by the Appellant challenging the order dated 12th July, 1994 passed by the Respondent No. 1, i.e., the Rent Control and Eviction Officer, City Magistrate, Kanpur Nagar, U.P. declaring deemed vacancy in respect of tenanted premises of the Appellant under Section 12(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Rent Act). There is no dispute that the Appellant has been carrying on his business of Sarafa in rented shop in the ground floor of 34/125 Savai Singh Ka (Hatha, Kanpur. The owner and the landlord of the said house Shri Ved Prakash Gaur sold a portion of the said premises to the Appellant. The Respondent Nos. 2 and 3 initially made an application before the Rent Controller by alleging that the Appellant had been residing in the said premises and construction has also been made by him in the premises purchased by him. The Appellant denied that he had been living in the said premises. There is no dispute that the said house being 34/125 Savai Singh Ka Hatha is a residential house where people reside and the business is also carried on other portions. Since it transpires that some construction has been made by the Appellant in the said building but the nature of such construction had not been gone into, we wanted to ascertain the nature of such construction by giving opportunities to the parties to file supplementary affidavit annexing the details of such construction. The Appellant has filed a supplementary affidavit annexing therewith the relevant details of the construction as noted by Shri S.C. Nigam, Architectural and Chartered Engineer along with plan and some photographs of the building. It appears that in the terrace of such building owned by the Appellant, some pucca construction has been made by the Appellant and besides the said pucca construction, some tin shed construction - -made by the Appellant also exists in the terrace. From the report of the Engineer and also from the plan annexed to such report, it appears that in the open terrace a pucca construction of a room of 5 ft. and 2 -1/2 inches 9 ft. ht. had been constructed by the Appellant. The said room has door and windows.
(2.) IT has been very strenuously contended by Mr. Sunil Gupta the learned Counsel for the Appellant that such room is quite small and in the absence of other essential amenities necessary for residential use the said room should not be treated as construction of a residential structure so that the 'deemed vacancy' under the said Rent Act can be declared for such construction. We are, however, unable to accept such contention because the house itself residential one and the construction made in the open terrace even though small cannot be held to be not at all suitable for residential purpose. Therefore, for such construction made, deemed vacancy of the tenancy of Appellant can be declared under the Rent Act. Therefore, although the order was not passed on consideration of the nature of construction of such room, but it appears to be that the ultimate decision impugned in this appeal can be sustained because of such construction made we do not think that any interference by this Court is called for against the impugned decision. The appeal therefore, fails and is dismissed without any order as to cost. A prayer for some reasonable time to vacate the premises has been made before us. Although such prayer has been objected by the learned Counsel for the Respondent, in the facts of the case we feel that the Appellant deserves a sympathetic consideration in the matter of granting some time to vacate. Considering the fact that the Appellant is old and has been carrying on business in the tenanted premises for long time, we extend the time till 31st December, 1997 to vacate the premises in question on filing a usual undertaking before this Court within a period of four weeks from today.;