- (1.) PRAKASH Krishna, J. This is really an unfortunate litigation. The landlords, who are the respondents in the present writ petition, filed an application for release of the disputed shop about 26 years ago, i. e. , in the year 1981 and the matter was remanded twice by the appellate Court on untenable grounds, apparently to benefit the petitioner-tenant. Release was sought on the pleas that the shop in question is bona fide required by them to run Sarrafa business. The shop in dispute is situate in Sarrafa Market wherein the petitioners-tenants are doing the Sarrafa business since time of the grand-father of the respondents. Sri Kalyan Mal was the owner of the disputed shop. He died on 17-1-1966 leaving behind him two sons, namely, Ram Rakshpal (father of the respondents-landlords) and Shivraj Saran. In a short span of time, Ram Rakshpal also expired on 14-11-1966 leaving behind him the respondents who were minors at that time. Shivraj Saran, being the uncle of the respondents-landlords, who were minors, started looking after the family affairs. According to the respondents, which has been found also by the Courts below, Kalyan Mal had executed a Will dated 5-7-1965 bequeathing certain portion of the property in favour of Ram Rakshpal which was inherited by the respondents-landlords and the other properties to his another son, Shivraj Saran. The respondents No. 1 and 2, after attaining the age of majority, jointly filed a release application alongwith respondent No. 3, who was minor at that time, for the release of the shop in question on the ground of their bona fide need to open a Sarrafa shop to earn their livelihood.
(2.) IT was pleaded in the release application that after the death of Kalyan Mal, the parties took possession of their respective portion of the properties as per the Will of Kalyan Mal and they continued in possession accordingly. However, some dispute arose in between the landlords on the one hand and their uncle Shivraj Saran on the other hand which led to filing of the Suit No. 74 of 1981 in the Court of Civil Judge, Budaun. The said suit was decided in terms of the compromise on 6-7-1981 and it was agreed upon between the parties that both the parties shall remain in possession of the properties as given to them through the Will of Kalyan Mal. The plea set up was that Shivraj Saran, permitted the landlords, who are respondents herein, to occupy his one shop as licensee for the time being. The said shop, which was in occupation of the landlords as licensee, fell in the share of Shivraj Saran on account of the Will executed by Smt. Ram Pyari, the mother of Shivraj Saran in his favour and the present landlords have no right, title or interest therein. IT was further stated that in the entire city of Budaun, the landlords had no other shop wherein they can start their business to earn their livelihood. The release application was contested by the petitioners by denying the genuineness of the Will allegedly executed by Kalyan Mal. The validity of the civil Court decree was also sought to be challenged on the ground that the same is collusive one. The release application was allowed earlier by the Prescribed Authority vide judgment and order dated 31-10-1983. The said order was subject-matter of Misc. Civil Appeal No. 94 of 1983. The appeal was allowed by the Civil Judge, Budaun by judgment and order dated 20-9-1984 and the matter was remanded to the Prescribed Authority to decide the release application afresh. The principal ground for allowing the appeal was that the appellate Court permitted the tenants-petitioners to file affidavit (53/c) as additional evidence on payment of Rs. 200/- as costs. This was the first remand order. After remand, the matter was again re-considered by the Prescribed Authority and the release application was again allowed by the order dated 13-8-1985 on the finding that the petitioners-tenants have got adjoining shop towards the South while the landlords have got no other shop. The need of the landlords is bona fide and genuine and more pressing than that of the tenant. This order was again challenged in Misc. Civil Appeal No. 80 of 1985. The appellate Court (Shri Pooran Singh, IV Additional District Judge, Budaun) again allowed the appeal and set aside the judgment and order of the Prescribed Authority and remanded the matter back to the Prescribed Authority for deciding it afresh. Before the appellate Court an argument was raised by the tenants-petitioners that the decree obtained in O. S. Nos. 109 of 1982 and 24 of 1981 are collusive decrees and the suits were filed with oblique motive to set up a case that the disputed shop is bona fide required. The appellate Court took the view that since the question of validity of the civil Courts decrees was not examined by the Prescribed Authority, it thought it convenient to remand the matter to the Prescribed Authority. This was the second remand order.
(3.) AFTER second remand order, the matter was again restored back on the file of the Prescribed Authority. It remained pending for a considerable period of time for one reason or the other. Every possible step was taken by the tenants-petitioners to delay the hearing and disposal of the release application after the second remand order. An application was filed, stating that certain facts were omitted to be inserted in the original written statement and that may be taken on record. The said application was rejected by the Prescribed Authority by order dated 19-5-1995 and it was challenged in Writ Petition No. 22084 of 1995 by the tenants. This Court disposed of the writ petition by the judgment dated 21-11-1995, with the observation that the affidavits filed by the petitioners may be accepted on record and be considered by the Prescribed Authority with the direction that the release application be decided within a period of six week. The Prescribed Authority even this time also found that the need of the landlords is bona fide and genuine. It was also held that the validity of the decrees of civil Court passed in O. S. No. 24 of 1981 and O. S. No. 109 of 1982 cannot be looked into in the present release proceedings and these decrees are binding on it. By the order dated 23-1-1996, the release application was ultimately allowed. This order was again challenged in Rent Appeal No. 18 of 1996. The District Judge, Budaun by the impugned order dated 7-3-2007 dismissed the appeal and confirmed the findings recorded by the Prescribed Authority. Sri B. B. Paul, learned Counsel for the petitioners submitted that the Courts below have committed illegality in holding that the Will of Kalyan Mal is a genuine document. Sri Paul vehemently argued that the Will of Kalyan Mal is a got up document and has been prepared for the purpose of the present case. He further submitted that the view taken by the Courts below that they cannot look into the validity of the decrees passed in O. S. No. 24 of 1981 and O. S. No. 109 of 1982 is legally untenable. Elaborating the argument, he submitted that by manoeuvring the things, the shop in question has been allotted to the present respondents-landlords with a view to create a ground for its vacation. In other words, it was submitted that it was incumbent upon the Prescribed Authority to re-examine and record findings afresh on the question of bona fide need and comparative hardship.;