Allowed

Bhoop Singh and Anr. v. Ashok Khandelwal and Ors.

Uttarakhand HC28 Jul 2017WPMS/653/2006

Case brief

AI extract

What is this about?

This court allowed a landlord's writ petition challenging an appellate order that reversed a release application. The court set aside the appellate order for being perverse and upheld the lower order of eviction. The judgment directed the tenant to hand over possession within nine months.

What did the court decide?

The release application is allowed and possession is directed to be handed over to the landlords within nine months.

Bhoop Singh and Anr. Vs Ashok Khandelwal and Ors. — Landlord and Tenant | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 653 of 2006 (M/S)

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Bhoop Singh and others …...Petitioners

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Versus

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Ashok Khandelwal and another …… Respondents.

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Present:

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Mr. Sudhir Kumar, Advocate for the petitioners. Mr. Vipul Sharma, Advocate for respondent Nos. 1 and 2. Mr. Pankaj Purohit, Deputy Advocate General for the State of Uttarakhand.

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Dated: 28^th July, 2017

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JUDGMENT

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Hon’ble Sharad Kumar Sharma, J.

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This is a landlord petition challenging the appellate order, passed by the District Judge, Pauri Garhwal on 28^th January, 2006, while exercising jurisdiction under Section 22 of the Act No.13 of 1972, by virtue of which, the learned District Judge, while exercising power under Section 22 of Act No. 13 of 1972, had allowed the Rent Control Appeal No. 27 of 2001, of the respondents and, thereby, consequently, it has resulted into rejection of the release application preferred by the petitioners seeking eviction of the respondents tenants from the tenement in question.

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The brief facts of the case are that the petitioners, admittedly, are the co-owners of the tenement, in question, over which the respondents are tenants, which constitutes a shop on a ground floor and two rooms on the first floor. The tenement, in question, which lies on the first floor is being

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utilized by the tenant for residential purposes and the ground floor is being used for commercial purposes.

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In the release application, the petitioners landlords has come up with a case that in his family he has got two sons and one daughter and he needs the accommodation for his elder son, who is 27 years of age, is post graduate and who is unemployed. He further in the release application in para 1 submitted that there exists a relationship of landlord and tenant between the petitioners and the respondents and that being so the release application, thus, filed for satisfying the need of the family and for providing an accommodation to an unemployed son who has to be settled and that it would fall to be within the purview of the bona fide need of the landlord.

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For the purposes of getting the accommodation vacated, the landlords has served notice on 29^th January, 1999, on the respondents but, despite of service of the notice, he had not vacated the premises, consequently, he had no option except to initiate the proceedings of filing the release application under Section 21 (1) (a) of the Act No. 13 of 1972.

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On receipt of a notice, the respondents filed a written statement and in the written statement, thus filed, though a very evasive denial was given to the para 1 of the plaint, wherein, partly he admitted the facts that he happens to be the tenant of the tenement in question but avoided to answer the part as to the tenancy was exclusive with the landlord or it was a tenancy with other co-landlords also. But this fact would not be a ground for the purposes of consideration of the present release application the reason being in para 3 of the written statement, as filed by the respondents, he admits the facts that petitioner No. 1 used to receive the rent on

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behalf of other co-landlords, under Act whoever receives rent there exists relationship of landlord and tenant with him.

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Apart from it, in the release application, the petitioner No. 2 who happens to be the co-owner of the property was precautionarily impleaded as a party. Under law, it is established preposition that for the purposes of establishing the relationship between the landlord and tenant, the landlord would be treated to be a person who actually receives the rent and, this is an admitted case of the respondent in para 3 of the written statement that the rent was received by petitioner No.1.

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Besides this, if the other co-landlords is not a party to the release application, it would hardly affect the release, the reason being, non impleadment of co-landlord will have no bearing the reason being the landlord who initiates the proceedings under Section 21 (1) (a) would be taken as to be a landlord in a representative capacity of the other colandlords under the doctrine of agency.

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However, this issue would not be a ground available to the respondents for the reason in the instant release, the colandlord was already impleaded as a party and relationship was admitted is release.

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It is not a case of the respondents that apart from petitioner No. 2, there has been other co-landlords, hence, in view of the above observations, the contention of the respondents tenants that since release has been filed by excluding some of the co-landlords, will not hold enough ground to reject release.

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As far as the issue of bona fide need is concerned, it is an established preposition that the landlord is the best judge

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of his need looking to the circumstances in which his family is surviving and he is the best person to assess the requirement of the family to augment the income or to suitably accommodate his unemployed son. Settling a son independently in an accommodation is always the responsibility of a father which he has to discharge. Hence, getting the accommodation released from the tenants for settling the son in two rooms which was available on the first floor would fall to be within the purview of bona fide need of the landlord.

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Since, the tenement, in question, also constituted in it part of it as to be a residential accommodation and a commercial accommodation too which was a shop lying on the ground floor yet again, there are catena of judgments which hold that it is an honorous duty of the father who is a landlord to ensure that his unemployed son is given a suitable accommodation where he could establish himself which was the intention expressed by the landlord in the release application, where he has pleaded that his son Mukesh, who was 26 years of age, was a post graduate and was unemployed. This fact of employment of Mukesh was sought to be denied by the landlord by expressing that he was undergoing the training of B.T.C.

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There is nothing on record either before the court below or even before this Court brought by the tenant showing that the eldest son of the petitioner Mukesh after having completed the alleged training of B.T.C. was employed or not. Secondly, once the respondents tenants has come up with the case to show that the landlord was not having the bonafide need, on the ground that the son for whom the need was expressed in the release application, is

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undergoing the training, it was a responsibility which was casted on the tenant who comes with the defence, which was not discharged by him, hence, his theory of son undergoing the training of B.T.C. will not hold good, unless proved to be appointed too after completion of training.

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There is another issue which is to be decided is that the need of a landlord has to be taken into consideration under the given facts and circumstances which were existing at the time of filing of a release application. Subsequently, if the son is even employed during the pendency of the proceedings under Section 21 of the Act or in continuation of the proceedings under Section 22, that will not dilute the need of the landlord as expressed at the time when the release application was filed, because the need is to be considered in consonance to the need as expressed at the time of filing of the release application. Hence, this ground taken by the tenants with regard to the son having undergoing the training is un-sustainable.

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After considering the rival contentions and considering the evidences adduced by the parties, the Prescribed Authority, by the judgment dated 26^th September, 2001, allowed the release application and possession of the tenement was directed to be handed over to the landlords. The respondents preferred an appeal under Section 22 of the Act No. 13 of 1972, which has been allowed by the impugned judgment dated 28^th January, 2006, thereby, reversing the judgment dated 26^th September, 2001.

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The learned counsel for the petitioners submitted that the sole ground for reversing the judgment passed by the Appellate Court was that the factum of oral partition was not established. The effect of oral partition in a proceeding under

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Section 21 of the Act, would always be considered subject to the establishment of relationship of landlord and tenant. Under the Hindu Law, the oral Family partition is recognized mode of settlement of marriage as settled by the Apex Court in the judgment reported in AIR 1976 SC 807, Kale and others Vs. Deputy Director Consolidation and others it is the recognized mode of partition of property where specific shares between the co-sharers are settled. It is a case of the landlord that oral family partition has already been taken place and the khura has been settled between them and the tenement has fallen in his share.

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The other reason which has been assigned by the Appellate Court, while reversing the judgment, is based on hypothesis by observing that the son for whom the need was expressed in release application might have been employed. This presumption could not have been drawn by the learned District Judge, while considering the Appeal under Section 22 of the Act. As already observed above, once the tenant contends that the son whose need was expressed is pursuing his career, will not amount to be established and settled and, if at all he was settled, then the responsibility of its prove the same was to be discharged by the respondents which he has failed to do.

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Thus, in view of the aforesaid facts and circumstances, I think that the Appellate Court, while exercising powers under Section 22 of the Act No. 13 of 1972, had gone to consider those factors which were not even pleaded and on record by the parties to the proceedings. Thus, it is held hereby that the judgment of the Appellate Court was perverse and without a rightful appreciation of the respective cases as pleaded by the parties, and thus, the

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ground on which the Appeal has been allowed, since are not legally tenable, the appellate order dated 28^th January, 2006, is set aside. The order, passed by the Prescribed Authority dated 26^th September, 2001, is upheld. The release application is allowed.

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The respondent is directed hand over possession to the landlords within a period of nine months. During this period, the tenant will continue to pay the admitted rent on 10^th of each month.

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An affidavit of undertaking to the said effect would be filed by the respondent tenant within three weeks from today positively. Failing which, it would be open to landlord to get the judgment executed as per law.

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Subject to the above, the writ petition is allowed.

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(Sharad Kumar Sharma, J.)

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28.07.2017 Shiv

Bhoop Singh and Anr. v. Ashok Khandelwal and Ors.

Case brief

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Bhoop Singh and Anr. v. Ashok Khandelwal and Ors.

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