N.L.Ganguly - (1.) THIS writ petition is directed against the judgment of the Appellate Court/Trial Court in proceedings under Section 21 (1) (a) of the Act No. 13 of 1972.
(2.) THE landlord opposite party was occupying the portion of the premises in dispute. THE petitioner Ram Harakh Choudhary and Wali Mohammad were occupying different portions of the same house as tenant. THE landlord opposite party purchased the property in question by registered sale-deed. After expiry of the statutory period for taking action under Section 21 (1) (a) of the Act, application under Section 21 (1) (a) of the Act was moved before the prescribed Authority for release of the accommodation and possession to the petitioner. Proceedings against the tenants were initiated after due notice. Wali Mohammad tenant of one portion of the accommodation did not contest the proceeding's and vacated the premises in question. THE accommodation in possession of Wali Mohammad is now in the possession of the landlord. THE authorities below, after considering comparative needs of the parties arrived at the conclusion that the need of the landlord is genuine and bonafide and allowed the application for the release. Before this Court learned counsel for the petitioner firstly submitted that the accommodation in question was in the tenancy op his father who died. After the death of petitioner's father, the petitioner and his brother Bam Chandra both became co-tenants. It was submitted that the mandatory notice by the landlord was given only to the petitioner and not to the co- tenant. Hence the proceeding under Section 21 of the Act was not maintainable. The perusal of the order of the prescribed Authority and the judgment of the appellate authority shows that the other brother of the petitioner Ram Chandra vacated the premises and has shifted to his own house. The appellate authority held that Ram Chandra neither had filed any objection nor claimed that he was co-tenant of the accommodation in question. It was also pointed out that the electoral role of the current year has not been filed which also shows that Ram Chandra, the other brother, is not co-tenant. Learned counsel for the petitioner submitted that since Ram Chandra inherited the tenancy of his father, it was in-cumbent upon the landlord to have served notice on him as well. His submission is misconceived. One of the co-tenants chooses to relinquish his tenancy and shifts elsewhere and does not come to contest the proceedings, he ceases to be a co-tenant. A person who was not tenant, cannot be permitted to be impleaded as co-tenant. The Court below recorded categorical finding against Ram Chandra that neither he had any right as a co-tenant nor he was a necessary party. The submission as such is wholly immaterial and shall not affect the legality of the proceedings. The court below considered the evidence and the material on record about genuineness and bonafide need of the landlord. It is not open for this Court to reconsider the evidence to arrive at a different conclusion under Article 226 After hearing learned counsel for the petitioner at length and perusing the record, I am of the view that judgment of the court below does not suffer from any infirmity or illegality. The question of fact now raised and said to have not been considered by the lower appellate court is meaningless. Any argument not advanced before the Court below on factual aspect cannot be entertained in the proceedings under Article 226. If any such argument was in fact advanced before lower appellate court and lower appellate court ignored to bring the argument on record, it was open to the petitioner to have moved a review application pointing out that the material documents and oral evidence on record were erroneously not considered and mentioned in the judgment and should have requested the Court to reconsider it. This has not been done. This is not open now to say in the proceedings under Article 226 that the relevant documents were not considered by the lower appellate Court. After hearing learned counsel for the petitioner, I am satisfied that justice had been done between the parties. No case for any interference under Article 226 has been made out and petition is liable to be dismissed in limine.
(3.) LEARNED counsel for the petitioner submitted that some time be allowed to enable the petitioner to search out some suitable accommodation. Shri A. K. Verma has put in appearance as caveator on behalf of the landlord. I have heard Shri A. K. Verma also who opposed the request of grant of time but I think it will be in the interest of justice that six months' time be allowed to the petitioner for vacating the premises in question. The learned counsel for the petitioner undertakes that the petitioner shall submit an undertaking before the prescribed Authority that he shall vacate the premises in question in six months time from today and deliver the actual vacant possession to the landlord opposite party. He shall not allow any other person to occupy the accommodation in question. For this period of six months rent shall be deposited in advance within one month from today before the prescribed Authority which amount shall be paid to the landlord without security. In case of default in furnishing the undertaking or depositing the rent as directed above the concession for six months' time shall stand automatically vacated. In the above directions the writ petition is dismissed.;