Nuruddin vs Anil Prakash and others

Mrs. Poonam Srivastav, J.

Heard Sri A.C. Srivastava, counsel for tenant/petitioner and Mrs. Tulika Prakash and Sri Shishir Prakash, counsels for landlord/caveatorrespondents.

A release application was filed by respondent nos. 1 to 3 under Section 21(1) (a) of U.P. Act No. XIII of 1972 (hereinafter referred to as the Act) for release of disputed shop no.3/36 (old no.64) situated in Mission Compound (New) Begum Bridge Road, Meerut.

Release application was contested by petitioner but the same was allowed by Prescribed Authority vide judgment and order dated 28.7.2003. An appeal was filed, Appeal No.137 of 2003, which was dismissed by Additional District Judge, court no.15, Meerut, vide judgment and order dated 11.5.2009. Both the orders are impugned in the instant writ petition.

The need set up by landlords in the release application is to establish their business of pump, its service and maintenance. They were carrying on as Thekedar but since they suffered loss, therefore, they intend to start a new business from the disputed shop. Tenant/petitioner was doing tailoring business from the said shop. When landlords requested him to vacate shop in question, he was demanding Rs.1,00,000/ (Rupees one lakh). Landlords also pleaded that in case shop is released, tenant will not suffer more hardship than that of refusal of release application.

The courts below have recorded findings that tenant''s tailoring business is not only source of livelihood and also that it functions as a collection centre and used to stitch clothes on contract basis.

Mrs. Tulika Prakash, has filed a short counter affidavit. She has specifically canvassed that petitioner is not entitled to any relief whatsoever since previous writ petition was filed in the name of the father of petitioner, who was dead at the relevant time. Since previous writ petition was dismissed as withdrawn with liberty to file afresh petition, therefore, petitioner''s counsel tried to explain that it was due to inadvertence. However, this is not a question to be decided in the instant writ petition.

I have gone through the two judgments and considered arguments of counsels for respective parties at length. The two courts have categorically recorded findings that landlords have suffered huge financial loss and they require shop to start new business. Besides, alternative accommodation suggested by tenant was also found not to be suitable for commercial activities as it was located far away from main road, therefore, not commercially viable. It is also a settled principle that the landlord cannot be compelled to accommodate his business in an alternative place only because it is suggested by the tenant.

In fact, on a close scrutiny of the two judgments, it is apparent that findings arrived at concurrently by the two courts are findings of fact. This Court cannot indulge in reappraisal of evidence and substitute findings of fact. No manifest error of law has been pointed out by petitioner''s counsel.

In view of what has been stated above, the writ petition lacks merits and is, accordingly, dismissed.

In the end, petitioner''s counsel has made a request for some time to vacate the shop in question, which is strongly objected by Mrs. Tulika Prakash. It is contended that petitioner is not entitled any equitable relief on a number of counts, which need not be gone into at this stage.

It is true that petitioner runs his business from the disputed shop. Mrs. Tulika Prakash has emphasized that rate of damages is liable to be enhanced. The rate of rent is only Rs.95/ per month. I am conscious of this fact, therefore, before allowing time to petitioner to vacate shop in question, I think it would be appropriate that from the date of judgment of revisional court i.e. 11.5.2009, petitioner should deposit enhanced damages @ Rs.1,500/ per month.

Tenant/petitioner be allowed six months'' time to vacate shop in question subject to filing an undertaking within three weeks from today before the trial court stating unequivocally that vacant possession of shop in question shall be handed over to the landlords/respondents on or before 8.3.2010. The date of handing over possession shall be given in the undertaking in form of an affidavit as 8.3.2010.

If tenant/petitioner fails to file an undertaking within a period of three weeks from today before the trial court and pay the damages at prevalent rate from month to month by 10th of each month, this liberty shall automatically come to an end. Landlords will be at liberty to get accommodation vacated forthwith.