Allowed

Smt. Roshni Rawat v. Shri Shailendra Kannaujia

Uttarakhand HC8 Nov 2021WPMS/1793/2017

Case brief

AI extract

What is this about?

Writ petition by landlord heirs seeking release of tenanted shop. Court held that heirs can substitute deceased landlord’s need per the Act. Bona fide requirement for tea shop does not need professional training. Writ allowed; eviction order restored.

What did the court decide?

The writ petition allowed. Impugned judgment of Additional District Judge set aside. Original order restored with modification directing respondent to vacate premises within 3 months.

Smt. Roshni Rawat Vs Shri Shailendra Kannaujia — Landlord and Tenant | Uttarakhand HC (2021)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 1793 (MS) of 2017

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Smt. Roshni Rawat

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and another. .......….......Petitioners.

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-Versus-

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Shri Shailendra Kannaujia. ……...Respondent.

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Present:

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Sri Siddharath Sah, Advocate for the petitioners. Sri Nikhil Singhal, Advocate for the Respondent.

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Sri S.K.Mishra, J.

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Date of Judgment : 08.11.2021

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1. Heard Shri Siddharath Sah, learned counsel for the petitioners and Shri Nikhil Singhal, Advocate for the respondent.

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2. In this writ petition, petitioners, being the landlord, are seeking to release the premises, in question, from the tenancy of respondent. They have assailed the findings recorded by the 5^th Additional District Judge, Dehradun as per judgment dated 14.07.2017 passed in RCA No. 15 of 2016 reversing the findings given by the Prescribed Authority.

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3. Facts of the case are that respondent was given a shop in tenancy by the predecessor-in-interest of the petitioners. The predecessor-in-interest of the petitioners namely late Shri Surendra Singh Rawat filed an application before the Prescribed Authority – Civil Judge (SD), Dehradun stating therein that he has bona fide need of the shop, in question, for his business; that he intends to run a tea and sweetmeats shop. After contested hearing, the learned Civil Judge, (SD), Dehradun allowed the suit

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vide judgment and order dated 30.07.2016 and directed the respondent to vacate the tenanted premises within 30 days. Aggrieved by the aforesaid judgment, the respondent preferred an appeal under Section 22 of the U.P. Act No. 13 of 1972, which is registered as RCA Appeal No. 15 of 2016 before the learned 5^th Addl. District Judge, Dehradun. During the pendency of the appeal, the landlord – Surendra Singh Rawat died. Thereafter, the present petitioners, being widow and son of deceased Surendra Singh Rawat, filed an application for substitution to prosecute the appeal. The appeal was disposed of by setting aside the order passed by Civil Judge (SD), Dehradun only on the ground that upon death of the original applicant his legal heirs i.e. respondents no. 1/1 and 1/2 before learned the 5^th Additional District Judge, have not made any statement that they will do the business of running a tea and sweetmeats shop in the property, in question.

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4. Learned counsel for the sole respondent submits that in similar circumstances, this Court has held that in such a situation, when the original landlord being applicant before the Prescribed Authority required premises to run a clinic / dispensary died, his death coupled with the fact neither his wife nor his children had any medical training would obviate the necessity of bona fide requirement for release of the tenanted shop.

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5. However, we are of the opinion that the facts of the aforesaid case decided by this Court are totally different from the present one. In that case, the Court came to the conclusion that release of tenanted property for the bona fide requirement of the landlord was inherently and completely dependent upon the professional training and proficiency as a doctor, which was lacking as far as legal heirs were concerned.

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6. In the present case, for running a tea and sweetmeats shop a special training or vocational training is not required. As per Section 21 (7) of the Act, where during the pendency of the application under clause (a) of sub-section (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis their own need in substitution of the need of the deceased.

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7. While interpreting the above provision, the Allahabad High Court in the similar facts and circumstances in the case of Shakuntla (Smt.) and 9 others Vs. Smt. Keshari Devi and 18 others reported in [2017 (2) ARC 650] in paragraph 21 and 25 has held as under:

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“21. In my considered opinion, the argument raised is fallacious because the need set up in the release application, initially was that of Smt. Keshari Devi as also her daughters, who were co-landladies in their own right, having inherited the property upon the death of their father along with Smt. Keshari Devi, the first applicant.

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x x x

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25. Since, Anuradha was also a co-owner of the accommodation in question, her need and the need of her husband, the spouse of the landlady, has rightly been taken into account. The Submission of the counsel for the petitioner therefore, cannot be accepted.”

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8. In applying the above principle, this Court is of the opinion that present petitioners are also co-landlady and landlord in their

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own right having inherited the property upon the death of landlord – late Shri Surendra Singh Rawat. Present petitioner no. 1 is co-owner of the property, in question and need of the husband should be taken into consideration, as her need.

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9. Learned counsel for the respondent submits that in the appeal, such a plea was not taken for continuance of the bona fide requirement to run a tea and sweetmeats shop.

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10. We are not inclined to accept the technical ground raised by learned counsel for the respondent, hence, it is rejected.

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11. In view of the above discussion, the writ petition is allowed. Impugned judgment and order dated 14.07.2017 passed by 5^th Additional District Judge, Dehradun in RCA Appeal No. 15 of 2016 is hereby set aside. Original order dated 30.07.2016 passed by the learned Prescribed Authority/ Civil Judge (SD), Dehradun is restored only with the modification that respondent is directed to vacate the premises within 3 months from today, failing which a proper application for vacation shall be filed by the petitioner.

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12. Urgent copy of this judgment be provided to the counsel for the parties, as per Rules. No order as to costs.

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(S.K.Mishra) Judge

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SKS

Smt. Roshni Rawat v. Shri Shailendra Kannaujia

Case brief

What is this about?

What did the court decide?

Smt. Roshni Rawat v. Shri Shailendra Kannaujia

Case brief

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What did the court decide?

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