DALJEET SINGH Vs. PRITHPAL SINGH KOHALI
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Prithpal Singh Kohali
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(1.) Present petition has been filed by the petitioner for quashing the judgment and order dated 15.03.2012 passed by the Additional District Judge/F.T.C. Ist Dehradun, by which the Rent Appeal No.177 of 2000 filed by the respondent/landlord was allowed and the shops in question were released in favour of the respondent/ landlord.
(2.) Brief facts of the case, as narrated, are that on 21.09.1998 the respondent/landlord filed a release application under Section 21 of the U.P. Act 13 of 1972 registered as P.A. Case No.84 of 1998 Shri Prithpal Singh Kohali Vs. Shri Daljeet Singh before the Civil Judge (Senior Division), Dehradun on the ground that the same is bona-fide required by him for his son, namely, Amardeep Kohli alongwith his wife Mohanjeet Kohli to start their clinic at Dehradun. The said release application was contested by the petitioner/tenant on the ground that the need of the landlord for the disputed accommodation is neither bona-fide nor genuine. The landlord filed his affidavit 47ka and affidavit of his son Amardeep Singh Kohli 48ka, as evidence in support of the release application. The petitioner/tenant also filed his affidavit 61ka, affidavit of Shri Harvinder Singh (witness) 62ka, as evidence in support of the written statement. On the basis of the evidence on record filed by both the parties and after considering the case of the parties, the Civil Judge (Senior Division), Dehradun vide order dated 25.07.2000 dismissed the release application filed by the respondent/landlord and held that the need of the landlord is not real, bona-fide and acute. Aggrieved by the order-dated 25.07.2000 passed by the Prescribed Authority, the respondent/landlord preferred Rent Control Appeal No. 177 of 2000 before the District Judge, Dehradun. During the pendency of the appeal, Dr. Amardeep Singh (son of landlord) and his wife Dr. Mohanjeet Kaur filed their joint affidavit 40ka on 13.11.2003, alleging therein that they are working at Ludhiana, as time gap arrangement till some suitable accommodation is made available at Dehradun. The petitioner filed his affidavit 51ka along with annexure on 09.09.2004 and controverted the facts mentioned in the affidavit 40ka filed by the landlord. Thereafter, on 26.05.2011 the landlord moved an application 103ka along with affidavit of Dr. Mohanjeet Kaur (104 ka). In her affidavit, Dr. Mohanjeet Kaur stated that her husband died in a road accident, leaving behind him his wife (Dr. Mohanjeet Kaur) and two children, namely, Km. Amrin Kaur aged about 13 years and a son Master Tejas Singh Kohli. In her affidavit, she further stated that inspite of sudden death of her husband, her need to settle alongwith her children at Dehradun with her father-in-law Pritpal Singh Kohli and establish her clinic in the accommodation in question, still subsists. She further stated that she alongwith children does not want to live with her parents at Ludhiana and is keen for education of her children in some good Public School at Dehradun, as Dehradun has acquired the status of Education Hub. She also stated that after the death of her husband, she is confirmed in her mind and decision to live with her father-in-law and settle in Dehradun and to carry on her medical practice at Dehradun. In rebuttal, the petitioner filed his affidavit and documentary evidence and controverted the facts mentioned by the landlord. On 15.03.2012, the learned Additional District Judge/ F.T.C. 1st, Derhadun allowed the Rent Control Appeal No. 177 of 2000 preferred by the respondent/landlord and set-aside the order dated 25.07.2000 passed by the Prescribed Authority and the accommodation in question was released in favour of the landlord. Against the order-dated 15.03.2012 passed by the Additional District Judge/F.T.C. Ist Dehradun, present petition has been filed by the petitioner.
(3.) Shri S.K. Jain, learned Senior Advocate for the petitioner submitted that that the release application has been filed with malafide intention and based on oblique motive. He submitted that the son of the landlord, namely, Dr. Amardeep Singh Kohli was married with Dr. Mohanjeet Kaur R/o Ludhiana on 03.11.1996 and both of them permanently settled in Ludhiana. They were neither interested nor wanted to settle in Dehradun. The landlord has not come with clean hands and moved the release application only on the false and frivolous grounds, simply to evict the tenant under one pretext or the another. Unfortunately Dr. Amardeep Singh died on 11.04.2011 in a road accident and after his demise, his wife Dr. Mohanjeet Kaur along with two children has settled with her parents at Ludhiana and never visited to her in-laws house at Dehradun either in the life time of her husband or thereafter. She is still permanently settled in Ludhiana. He submitted that Dr. Mohanjeet Kaur was, in fact, neither interested nor is still interested to settle in Dehradun. Averments made in the application as well as in the affidavits are in fact not true. The said application as well the affidavit was filed simply to give colour to the release application. Learned counsel for the petitioner submitted that from the perusal of the judgment of the Appellate Court, it is crystal clear that the landlord has miserably failed to prove his bona-fide need and there is ample accommodation in his possession. Learned Senior Advocate for the petitioner relied upon paragraph no.12 of the judgment Mattulal Vs. Radhe Lal, 1974 AIR(SC) 1596 and submitted that appellate Court wrongly allowed the release application ignoring the fact that element of need is missing in this case. Same is quoted below:
The question would still remain whether there were proper grounds on which this finding of fact could be interfered with by the High Court. It is now well settled by several decisions of this Court including the decision in Sarvate T.B.'s case, 1966 MPLJ 26 (SC) and Smt. Kamla Soni's case, C.A. No.2150 of 1966, D/-26.9.1969= (reported in 1969 AIR(NSC) 186 that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bona fide. The word required signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show the burden being upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business. The Additional District Judge did not misdirect himself in regard to these matters, as for example, by misconstruing the word required or by erroneously placing the burden of proof on the appellant and no error of law was committed by him in arriving at the finding of fact in regard to the question of bona fide requirement of the respondent, which would entitle the High Court in second appeal to interfere with that finding of fact. ;
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