- (1.) HEARD learned counsel for the parties and perused the record. The petitioner has prayed for a writ of certiorari quashing the judgment and order dated 15.9.2005 passed by the Prescribed Authority in P.A. Case No. 04 of 1998: Alakh Kumar Ghosh Vs. Messors Mool Chand Prakash Chand. The petitioner has also challenged the order dated 6.12.2010 passed by Additional District Judge, Room No. 2, Jhansi in Rent Appeal No. 09 of 2005: Messors Mool Chand Prakash Vs. Alakh Kumar Ghosh.
(2.) THE facts in brief are that the plaintiff-respondent instituted suit no. 04 of 1998: Alakh Kumar Ghosh Vs. M/S Mool Chand Prakash Chandra Bidiwale and another, for eviction of the petitioner-tenant, under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 on the ground of his personal need and hardship. The case of the plaintiff-respondent was that he is running a school in the name and style of New Era Public School wherein education is imparted to small kids; that he has purchased a two seater vehicle for bringing these children from home to school and from school to home, as such, the garage which was occupied by the petitioner is required for parking the aforesaid two seater. The suit was contested by the tenant by filing written statement denying plaint allegations, particularly that plaintiff-respondent owns two seater vehicle for small kids studying in the school. The case of petitioner-tenant before the Court below was that he has not defaulted in payment of rent and when the landlord refused to accept the rent, he had sent the same by money order which was also refused. Compelling him by circumstances to deposit the amount towards rent due, under Section 30 of U. P. Act No. 13 of 1972. After about four years of filing of the written statement, an amendment application appears to have been filed by the plaintiff-respondent under Order VI Rule 17 CPC stating therein that as his son has purchased an Indica car for which parking, space is also now required in the garage in dispute. Additional written statement was filed by the plaintiff-respondent rebutting the averments of the amendment application. It appears from the record that plaintiff-respondent had submitted rejoinder affidavit wherein it has been averred that share of his brother in plot no. 35/1 has been sold out and as such he has no other place except the garage in dispute. It also appears from records that the plaintiff-respondent filed an affidavit stating therein that petitioner-tenant is also in possession of house no. 276, situated in Mohalla Badagaon Gate, Jhansi, where he can park his vehicle if the garage under his tenancy is released to the landlord and will not suffer any hardship. The petitioner-tenant then rebutted his averments by filing counter affidavit to the affidavit stating therein that house no. 276 is situated in a narrow lane and it would not be possible to park his car in the said house is above the plinth level. An Amin was appointed for spot inspection for survey of house no. 276. He submitted his report on 31.4.2000 inter alia that for entering into the house 4 steps are required to be climbed and the vehicle cannot be parked in the accommodation in it but if in place of the stairs a slope is constructed, vehicles can be parked. The petitioner filed objection against the report submitted by Amin. Thereafter a fresh report was again called for by the Court below. Pursuant thereto the Amin again inspected the spot on 22.3.2001 and submitted his report paper no. 49C2/3 along with map being paper no. 29C2/4. After considering rival contention of the parties and the documents on record, the trial Court framed two issues regarding bona fide need and comparative hardship. Both the aforesaid issues were decided against the petitioner-tenant. It was held that the approach road to house no. 276 of the tenant is quiet wide and the petitioner-tenant can park his car. The plea of the tenant that he has been using the garage of the landlord on rent since long will not declined the landlord from his rights for its release and that the landlord has proved his case of bonafide need of the said garage. The court found that inspite of having his own garage, under the tenancy of the petitioner he is placed at the mercy of other residents of the locality for parking his vehicles in their houses whereas the petitioner can park his car in his own house no. 276 in the same locality as such the need of the landlord is bonafide.
(3.) WHILE decreeing the suit in respect of bonafide need, the trial court held as under: [VERNACULAR TEXT OMMITED] As regards question of hardship, the Prescribed Authority recorded a finding that it also lies in favour of respondent-landlord and the door at the height of 4 ft from plinth for entrance can be made easily and that the tenancy of the garage in dispute is Rs.3.75 per month and for this reason he is not vacating it compelling the landlord to park his vehicles in other persons' houses. The Court also noted that petitioner tenant is running his business of Bidi in the said premises. The finding recorded by the Prescribed Authority is thus: [VERNACULAR TEXT OMMITED] Aggrieved by the finding of the Prescribed Authority on the aforesaid two issues i.e. bonafide need and comparative hardship, the petitioner challenged the same in Rent Appeal No. 09 of 2005: Mool Chand Prakash Chand Vs. Alakh Kumar Ghosh, challenging the validity and correctness of order dated 15.9.2005 passed by the Prescribed Authority. Along with Rent Appeal, petitioner also moved an application for grant of stay/interim relief during pendency of appeal. The appellate Court initially granted interim order which was extended from time to time. The petitioner moved an application paper no. 32C/2 along with his affidavit paper no. 26C/2 for taking additional evidence on record before the appellate court stating therein that the plaintiff-respondent had purchased a plot and after construction of house, he is not only residing therein but is also keeping his Indica car in that premises. The averments made in the said affidavit filed by the petitioner were rebutted by the respondent-landlord stating that the said house is 4-5 kms from the school whereas the garage under occupation of the tenant is immediately adjacent to school and is required for parking of the vehicle for the children and also requires the garage for parking of Indica car used for school purpose.;