SURYA PRAKASH KESARWANI,J. - (1.)Heard Sri Ankush Tandon, learned counsel for the petitioner.
(2.)This writ petition under Article 226 of the Constitution of India has been filed challenging the order dated 16.01.2017 in Rent Appeal No. 19 of 2015 (Smt. Poonam Verma v. Satya Prakash) passed by the court of Additional District Judge, Court No. 10, Kanpur Nagar, whereby, the appeal of the landlady was allowed and the petitioner/defendant was directed to vacate the house within two months and the order in Rent Case No. 16 of 2012 the order dated 22.01.2015 was set aside.
(3.)Briefly stated facts of the present case are that undisputedly plaintiff/respondent no. 1 purchased the House No. 35/141, Bangali Mohal, Kanpur Nagar by registered sale deed dated 25.03.2004 to meet her residential and commercial requirements. Her name has been mutated in the municipal records and she is regularly paying the house tax and water tax etc. She gave notice dated 24.11.2004 to the petitioner/defendant which was served on 26.11.2004. Plaintiff/respondent no. 1 filed a Rent Case No. 16 of 2012 under Section 21(1)(a) of the U.P. Act No. 13 of 1972 for release of the disputed premises on the ground of her bona fide need. She also stated that the house in question is more than 100 years old. Its two floors were demolished prior to purchase of house and now only ground floor remains which is occupied by the petitioner/defendant and a shop has also been opened by him on the front portion of the house. It was also stated that the plaintiff/respondent no. 1 is residing in her ancestral house in which she has merely one room in her possession while her family consist of five members. She moved an application for release on the ground of her bona fide need for residential purpose and also for the purpose of business of her husband. The aforesaid Rent Case No. 16 of 2012 was dismissed by the Prescribed Authority vide order dated 22.01.2015. Three issues were framed by Prescribed Authority namely, the relationship of landlord and tenant between plaintiff/respondent no. 1 and the petitioner/defendant; bona fide need; and thirdly comparative hardship. While deciding the issue no. 1, the Prescribed Authority held that there is landlord-tenant relationship between plaintiff/respondent no. 1 and the petitioner/defendant. While deciding issue no. 2 the Prescribed Authority came to the conclusion that the main insistence of the plaintiff/respondent no. 1 is that the disputed house is in very weak and bad condition and on the other hand she also pressed her bona fide need and thus there is contradiction and accordingly this issue was answered in favour of petitioner/defendant and against the plaintiff/respondent no. 1. On the issue no. 3, the Prescribed Authority expressed the opinion that since issue no. 2 has been decided in favour of the petitioner/defendant and as such the issue no. 3 is also decided in his favour. Aggrieved with this order, the plaintiff/respondent no. 1 filed Rent Appeal No. 19 of 2015 before the court of Additional District Judge, Court No. 10, Kanpur Nagar. Appellate court while considering all the three issues and based on evidence, came to the conclusion that the plaintiff/respondent no. 1 is presently residing in a joint family house no. 43/10 Nariyal Bazar, Kanpur Nagar in which she has one room and a small kitchen. Verandah and toilet are in joint use of the joint family and in respect of the said building dispute between family members is pending. The appellate court also noted the fact with respect to the bona fide need of the plaintiff/respondent no. 1 and her family members including her daughter and son and found that they are in bona fide need of the disputed house. A finding of fact has also been recorded to the effect that despite notice the petitioner/defendant/tenant has not made alternative arrangement for a long time. The appellate court also noted the fact that the case was listed for argument but despite several opportunities, neither the petitioner/defendant nor his counsel argued the matter but continuously sought adjournments and even on last opportunity for argument afforded to them, they did not appear. The appellate court also came to the conclusion that the comparative hardship is to the plaintiff/respondent no. 1.