Mahaveer Prasad Sharma vs Mohammad Wasim and Another

Rakesh Tiwari, J.—Heard Smt. Rama Goel, counsel for Petitioner and Sri Iqbal Ahmad for the caveator and perused the record.

The facts of the case in a nutshell are that release application had been filed by the landlord in respect of a shop located at Mohalla Dhariya, Gokuldas Road, district Moradabad with averments that the Petitioner is a tenant of the shop in dispute @ Rs. 61 per month ; that there are four sons and two daughters in the family of the landlord and as such the accommodation with him was not sufficient for eight members of his family. The release application was contested by the tenant inter alia on the ground that there are a number of shops with the landlord and he can establish his sons in those shops. It was stated that the need of the landlord was not bona fide and the tenant, if evicted from the shop in dispute, would suffer greater hardship than the landlord in the circumstances stated in the written statement.

The Prescribed Authority vide his judgment and order dated 14.10.2008 allowed the release application of the landlord holding his bona fide need and comparatively greater hardship. While allowing the release application, the prescribed authority also noted the fact that Petitioner has a commercial plot with shop constructed over it and that he had concealed these facts. When the sale deed of the plot executed by the tenant was brought on record, a plea was taken that he had sold the said plot for the purpose of paying his medical expenses, which he incurred in his treatment.

The contention of the learned Counsel for the Petitioner is that the Petitioner-tenant is a poor person earning less than even 1,000 per month as he is running a toffee shop and that he had no option but to sell of his commercial plot of 10 square metres to meet the medical expenses. Hence, in the circumstance if he is evicted, his family will come on road.

Per contra Sri Iqbal Ahmad, learned Counsel for the Respondents has submitted that the Court has rightly noted the fact that the Petitioner had not come with clean hands before the Court and had not even made a whisper of the plot and the shop constructed by him over it. This is also apparent from the sale deed of the plot of the tenant, which was filed by the landlord, in which it was averred that only plot was being sold. However, the courts below on appraisal of evidence and photographs of the shop on the said land came to the conclusion that the Petitioner had concealed that shop constructed over it was an old one and was not constructed by subsequent purchaser, i.e., it was not a new construction.

After hearing learned Counsel for the parties, it appears that the Petitioner had executed the sale deed of his plot concealing the fact that his shop was already in existence over it. The tenant also did not file medical bills of treatment etc. before the court below in support of his contention that he had sold of the plot to meet the expenses for his medical treatment. Even the disease from which he was suffering was not mentioned anywhere. The categorical finding of fact has been recorded by both the courts below on the basis of the evidence on record that the Petitioner had not only sold his plot but also a shop got constructed over it and this fact had been concealed by him in the sale deed. The photographs of the shop of the tenant were also produced by the landlord and looked into by the court below, which had not been disputed by the tenant, rather an explanation was given that this construction was new one and was made by the subsequent purchaser but the courts below disbelieved this statement as the photographs of the shop established that the construction over the said plot was an old one. Since the Petitioner had sold of the plot as well as the shop situated in a commercial place during the litigation before the court below and had not come with clean hands, the courts below have rightly found him not entitled to any reliefs. Moreover the finding of fact of bona fide need of the landlord and hardship have also been recorded in favour of the landlord, which could not be assailed in the writ petition.

The courts below has also recorded a finding that the Petitioner had not made any efforts to search a suitable shop for himself during the pendency of the suit. The court below had already granted three months'' time as far back as on 14.10.2008 for vacating the shop. Now we are in the year 2010. Therefore, in my considered opinion, two months'' time is sufficient for the Petitioner to vacate the premises in dispute.

As regards the fact that the Petitioner is a poor person, there is nothing on record to show what was the value of the commercial plot at Moradabad purchased by the Petitioner and the cost of the construction of the shop he made over it. How the Petitioner who is said to be earning less than Rs. 1,000 per month has been able to purchase the commercial plot with constructions over it.

From the sale deed produced by the Petitioner, it is apparent that the aforesaid plot was shown to have been sold in the sale deed for the sum of Rs. 3,50,000. For these reasons I do not find the Petitioner to be a poor person as admittedly he is the man of sufficient means having purchased commercial plot and built a shop in the city of Moradabad.

Law does not come to aid of those who come for justice by concealment of material facts or with intent to mislead the Court. It protects by tempering mercy with justice, those who come before it with clean hands and recognize the majesty of law.

For the reasons stated above, this Court is not inclined to interfere under Article 226 of the Constitution of India. However, Petitioner on the request of his counsel, is granted two months time to vacate the premises in question. The Petitioner will also file an affidavit in the court below within a period of 15 days from today to vacate the premises within two months from today. In case of failure to comply with the condition as aforesaid, the Petitioner would pay damages after two months @ Rs. 100 per day, which shall be recovered as arrears of land revenue.

The writ petition is accordingly dismissed.