Manoj Kumar and others vs Kamla Devi and others

Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record.

This writ petition has been filed by Manoj Kumar along with six others, sons and daughters of Ved Prakash, R/O Mohalla Jatan Town, P.O. Keeratpur, District Bijnor, challenging the validity and correctness of the order dated 23.7.2010 passed by Additional District Judge, II Bijnor in Rent Control Appeal No. 04 of 2009.

The brief facts of the case are that the respondents filed filed suit under section 21 (1) (a) and 21 (1) (b) of U.P. Urban Buildings (Regulation Of Letting, Rent And Eviction) Act, 1972, hereinafter referred to as ''Act'' against father of petitioners no. 1 to 3 for eviction from the shop in dispute, before the Prescribed Authority/Civil Judge (Junior Division), Nazibabad, Bijnor. The application was registered as Suit No. 02 of 1998.

The suit was contested by Sri Ved Prakash father of the petitioners on the ground inter alia that the shop in dispute is in dilapidated condition and that the petitioners have constructed a shopping complex consisting of 16 other shops available with them out of which some have been sold out; that he has also settled his son in tailoring business in one of these shops and out of aforesaid shops about 23 shops are still vacant, as such he has no bona fide need of the shop under his tenancy. It was further stated that the defendant had purchased the one fifth share of one of the coowner of property in dispute and no decree of eviction can be passed against the coowner.

The trial court allowed the application for eviction of petitioners vide judgment and order dated 20.4.2009, which was challenged by him in Rent Control Appeal No. 4 of 2009 before the District Judge, Bijnore and the same was transferred to IInd Additional District Judge, Bijnore which is still pending.

The petitioners who are legal heirs of Late Ved Prakash moved two applications namely 52 (Ga) dated 3.5.2010 and 63 (Ga) dated 25.5.2010 under Order 41 Rule 27 before the Prescribed Authority, which are appended as Annexures 5 & 6 to the writ petition. By means of the application 52 (Ga), the petitioner wanted to bring on record certain additional evidence i.e. assessment order of 16 shops constructed by the landlord and assessed to tax in year 200203 to establish that bona fide need did not exist any longer as well as the proceedings, pleadings and order of trial court in civil suit which may be helpful in proper adjudication of the present case.

The averment in Application No. 63 (Ga) was that the petitioners had purchased 1/5 share of one of heirs who is coowner of the shop in dispute, hence he cannot be evicted from the shop in dispute. According to the petitioner after death of one Ram Kali from whom the petitioners had purchased the share, he acquired 1/10 of the share of Ram Kali and as such it is established from the document that he is coowner of the shop in dispute.

It appears from the record that suit no. 421 of 1982: Ramo Devi Vs. Kunti and others had been filed in the court of Civil Judge (Junior Division) Bijnor and against the said suit appeal no. 317 of 1983: Ramo Devi Vs. Kunti and others has been admitted in which each of the heir have been found to be owner of 1/5 share of the property of Surya Prasad.

The court below by the impugned order dated 23.7.2010 rejected both the aforesaid applications filed by the petitioners on the ground that additional evidence which are sought to be bring on record along with aforesaid applications, are not necessary to be filed for proper adjudication of the appeal and if these additional evidence are not taken on record, there would be no adverse affect on the right of the petitioners as both these points have been taken by them in his defence. The court further held that all the documents were in the knowledge of father of the petitioners who had not filed in the suit the same at the relevant time. As such the same cannot be accepted in the appeal after his death on the ground that petitioners had no knowledge about these documents. The court further observed that the petitioners could not give any reason whatsoever as to why these documents were not filed by his father in the trial court in suit, hence the same cannot be accepted on record as they do not fulfil the condition of Order 41 Rule 27 CPC for taking additional evidence on record.

No error or infirmity has been shown by the learned counsel for the petitioners in the order impugned.

For all the reasons stated above, the Court is not inclined to interfere in the interlocutory order.

The writ petition is, accordingly, dismissed.