POONAM SRIVASTAV,J. - (1.) HEARD Sri D.K. Srivastava, learned Counsel for the petitioner and Sri K.K. Nirkhi Advocate for the contesting respondent/land­lord.
(2.) COUNTER and rejoinder affidavits have been exchanged which are on record. The dispute relates to premises No.101/171 Mariyam Bibi KaHata, Gammo Khan, Colonelganj, District Kanpur (hereinafter referred to as disputed accom­modation). The petitioner is the tenant of an accommodation consisting of one Kothari, one Dalan (Khaprail Shed), Courtyard and a toilet at the rate of Rs.6.25 paisa per month. Previously the premises was under tenancy of the petitioner's father and subsequent to his death the petitioner and his mother stepped in his father's shoes. The contesting respondent purchased the disputed accommoda­tion by virtue of a registered sale deed dated 18.1.1988. The instant release application was preferred by the subsequent purchaser, landlord/contesting re­spondent for his own use in the Court of Prescribed Authority/VIIIth A.C.M.M., Kanpur Nagar vide P.O. No.86 of 1991-Mohd. Shahi and Smt. Sabra Begum and others. The landlord's contention in the release application was that the accommodation was purchased for his own personal occupation. Despite repeated request, he was unable to prevail upon the tenant and he refused to vacate and deliver vacant possession. The landlord's need is genuine urgent and bonafide. The requirement of six months notice as provided under law as com­plete and it was served on the opposite party but they were adamant and refused to vacate. The tenant contested the release application by filing written state­ment. An objection was raised that while detailing the number of family mem­bers, the respondent/landlord have mentioned Meraj who happens to be brother of the landlord and, therefore, is not a family member, thus instead of 7, only 6 members are in his family. Besides, the tenant's contention that the petitioner/landlord are in possession of a number of accommodations viz premises No.101/42,101/170 and thus the need of house No.101/171 Ahata Gammu Khan, Kanpur was specifically denied. It was also mentioned in the written statement that the income of the tenant is below Rs.600- per month and, therefore, Kanpur Nagar being a Metropolitan City it is difficult for them to arrange for an alternative accommodation. The landlords filed their replication. The Prescribed Authority dismissed the release application on the ground that alternative accommoda­tions in the ownership and possession of the landlord as shown in the written statement appears to be correct and, therefore, the need is not bonafide and finding in respect of comparative hardship was also against the landlord. While recording this finding, a judgment in Rent Appeal No.78 of 1992 was relied upon wherein it was held that Smt. Wahidunnisa sold her property to her brother Mohd. Shahi (landlord in the present case). Certified copy of this judgment has also been produced in this Court in support of the argument. The Trial Court came to a conclusions against the landlord only because House Nos.101/171, 101/170, 101/173 and 101/42 was in his possession. The landlord has unequivocally stated that it does not belong to him. The respondents preferred an appeal against the judgment of the Prescribed Authority dated 10.4.1997 before the Additional Dis­trict Judge, Court No.15, Kanpur Nagar vide Rent Appeal No.120 of 1997 which was allowed vide judgment dated 20.2.2009 releasing the accommodation in favour of the landlord. While entertaining this writ petition as a fresh case on 16.3.2009, this Court enhanced the rent to a sum of Rs.500/- per month w.e.f. 1.1.2009. It has not been brought to my notice by the Counsel for the contesting respondents that this amount is not being paid. It appears that the enhanced rent is being paid since the said date.
(3.) LEARNED Counsel for the petitioner argued that the property in question was sold to the landlord by real sister of maternal grandmother and this was with a specific purpose of creating an artificial need so that the tenant can be evicted. The next argument is that the trial Court specifically placed reliance on the judg­ment of Rent Appeal No.78 of 1992-Smt. Razia Khatoon v. Mohd. Meraj @ Rajjan in support of his argument. The appellate Court in the said release case allowed the rent appeal of the tenant coming to a conclusion that it was not bonafidely required and comparative hardship is also not in favour of Mohd. Meraj. Emphatic submission is that the appellate Court did not record its finding as to why the findings of the trial Court in respect of this decision, a certified copy of which has been placed before me, was completely overlooked while allowing the appeal. Besides, a perusal of the said judgment of Rent Appeal No.78 of 1992 clearly demonstrate that an artificial need was created by the said landlord and so called sale and purchase of the disputed property by the present landlord is only to somehow evict the tenant.;