Randhir Singh Sheoran vs VIth Additional District Judge,Muzaffar Nagar & Ors.

J.C.Gupta, J.—This writ petition which is listed for admission is finally disposed of at the admission stage as affidavits/counteraffidavits has been exchanged and the parties Counsel have been heard at length.

This writ petition is directed against the judgment and order dated 251096 passed by VIth Additional District Judge, Muzaffar Nagar (Anneure14) dismissing the petitioner''s appeal filed aginst the judgment and order dated 81189 passed by Prescibed authority, Kairana, district Muzaffar Nagar (Annexure11) whereby the application for release moved by the landlord/respondent No.3 was allowed.

The dispute relates to a shop situated in Mohalla Hanuman Road, Shamli whose boundaries were given at the foot of the application moved under Section 21(1) (a) of U.P Act No.13 of 1972. The petitioner is admittedly a tenant in the said shop @ 55/per month. The said property is said to have been purchased by the landlord in the year 1968. Landlord applied for the release of the said shop for his personal need for setting up his own business of cloths alleging that he was doing sari businesses under the name and style of Tayal Sari Shamli. With the dissolution of this partnership firm w.e.f 31381, he is unemployed. He has a big family to support. He has no other vacant shop where he could start the said business for which he has sufficient experience. On the other hand the tenant is not using the shop for any effective business and he has installed a fodder cutting machine in the said shop which he can shift to any other premises. He has got extensive property in his village and is doing agriculture there. In short, the case of the applicant was that the shop in question is bonafide required by the landlord and the tenant would suffer no hardship if the application is allowed.

4.The application was contested by the tenant/petitioner inter alia on the ground that after his retirement in the year 1959 he took this shop on rent and since then he is carrying on his business as usual. According to him the shop is not required by the landlord as he is still engaged in saree Business in the name of Tayal Sari Emporium and in addition to that he has got agricultural land and houses in his native village Adampur. In anther shop, he and his brother Ashok Kumar are also engaged in a joint family business in the name of Pradeep Medical Store. The landlord is not unemployed and the allegation that the disputed shop is required for Sari Business is incorrect. On the other hand he has sufficient income to cater the need of the members of his family. It was also alleged that landlord was previously an Engineer and the has set up a factory in the Industrial area Shamli in a 4000 yards plot and from that factory also he has got sufficient income and the application for release has been moved with oblique motive to get the same vacated by the tenant/petitioner though the same is not required by the landlord for his own use.

Parties led evidence on affidavits and also filed some documents. On a consideration thereof the trial court allowed the application after recording a finding that the landlord respondent No.3 has no of the source of income; that he was previously doing Sari business in the firm Tayal Sari Emporium but the sad firm has been dissolved on 31381 and since thereafter he has been left with no interest in the said business. It has also been found as a fact by the trial Court that the landlord has never been partner in the firm which runs business under the name of ''Pradeep medical Store''. The prescribed Authority also found that the allegation of the tenant that the landlord has earnings from money lending business was also not proved. It has also been found that merely because the landlord has some agricultural land in his village that would not disentitle him to do business in the town and on that ground alone his need cannot be said to be malafide. The trial Court also disbelieved the tenant''s allegation that the landlord has propriety interest in the factory and it was found that it is not proved that the landlord has any interest in the said factory or that he has any earning there from. On the basis of these findings the trail Court concluded that the need of the landlord/respondent No.3 is bonafide and genuine. The trial Court also proceeded to examine the question of comparative hardship and a finding on this question has also been recorded in favour of the landlord.

Against the order of the Prescribed Authority, the tenant/petitioner filed appeal which has also been dismissed. The lower appellate Court affirmed the findings of the court below, and has come to the conclusion that the need of the landlord/respondent is bonafide as he is unemployed and has no other source of income which may be sufficient to fulfill the basic needs of his family members, who are dependent upon him. The finding on the question of comparative hardship has also been affirmed by the lower court.

Before this Court learned Counsel for the petitioner argued that the judgment of the lower appellate Court is vitiated on account of the fact that before lower appellate Court some papers were filed on behalf of the petitioner as additional evidence but that application was rejected and the papers were not admitted. The petitioner approached this Court against the order of lower lower appellate Court rejecting the said application of the petitioner. However the said writ petition was dismissed with the observation that it was against an interlocutory order. The court further observed that it was open to the petitioner to raise the objection after final order in the case is passed. Learned Counsel for the petitioner, therefore, argued that since those document have not been considered by the lower appellate Court, the impugned order is vitiated. Learned Counsel for the respondent/landlord pointed out that neither in the writ petition nor in the grounds of petition any such objection has been taken that the lower appellate Court committed any error in rejecting the application for additional evidence. Copies of papers which were sought to be brought on record were also not annexed with the writ petition and for the first time with the rejoinder affidavit Photostat copied of those documents have been filed. In find force in this submission of the learned Counsel for the respondent and since no such ground has been taken in the writ petition, the petitioner''s Counsel cannot be permitted to raise this objection during the course of arguments. In any view of the mater learned Counsel for the petitioner could not point out as to in what manner these documents were relevant for the just decision of the case. Judgment or order of an authority could only be vitiated if the authority failed to take into consideration some material evidence or documents. The word material is of importance and significance. A judgment or order will not get vitiated merely on the ground of non consideration of irrelevant or insignificant evidence. The document or evidence is material only when it has some bearing on the result of the case or in the words if the Court finds that the result of the case would have been materially effected had those documents or evidence been considered. Since in the instant case it could not be shown as to in what manner the consideration of these documents would have effected the result of the case or that the consideration thereof would have resulted in some other decision, I find that the point raised by the learned Counsel for the petitioner has no force.

Learned Counsel for the petitioner further vehemently argued that affidavit of Randhir Singh paper No.63ga was filed in the trial Court but the same was not taken into consideration by the Prescribed Authority on the ground that no opportunity to the landlord to rebut the same could be given, and it is urged that this observation of the Prescribed Authority was against the record as copy of the said affidavit had been served upon the landlords Counsel before the same was filed in Court. It is true that the trial Court did not take into consideration the said affidavit but the same has been considered by the lower appellate Court and it has been found by it that no new fact has been mentioned therein and it contained merely a repetition of facts mentioned in earlier affidavits. It has already been alleged by the tenant inhaler affidavits that the landlord was running a factory in the Industrial area and for which a suitable reply had been given on behalf of the landlord in their affidavits and both the Courts below have recorded concurrent finding that it was not prove that the landlord/respondent has any property rights or interest in the said factory. Further in the counter affidavit filed in this Court on behalf of the landlord a certificate has been attached which shows that the said factory has been sold tenant its possession has been taken over on 3296 by the Uttar Pradesh Financial Corporation. Merely because a factory existed in the Industrial area, that by itself would not prove that the landlord had any ownership or prove that the landlord had any ownership or property rights therein or that he was having income from the said factory.

Learned Counsel for the petitioner further contended that before the trial court and application for local inspection was made on behalf of the tenant/petitioner but the Court rejected the said application. According to him the circumstances of the case necessitated local inspection by the Court in order to reach to a right and just decision, thus it is argued that failure of the Court to make local inspection has resulted in a gross injustice to the tenant and for that reason the impugned orders are liable to be quashed. A perusal of the record, however, shows that the lower Court rejected the application for local inspection by court on valid grounds. The local inspection by court is made only in those cases where on the evidence led by the parties Court is not able to arrive at a just conclusion either way or where the Court feels that there is some ambiguity in the evidence which can be clarified by making inspection. Local inspection by the Court cannot be claimed as of right by any party. Such inspection are made to appreciate the evidence already on record and Court is not expected to visit the site for collecting evidence. Learned Counsel for the petitioner during the course of arguments submitted before this Court that had the Court inspected the factory, it could have made inquiries to find out as to who the owned/owners of the factory were. I my opinion this was not the function of the Court to collect evidence by making local inspection. Local inspection is not made to collect evidence but it is made only where the circumstances of the case require it for arriving at a just decision. It may also be necessary to mention here that after the rejection of the said application another application for the same purpose was moved on behalf of the tenant and this time the Prescribed Authority appointed and issued a commission for making local inspection and the Commissioner made inspection and submitted his report to the Court. Therefore, in my opinion no prejudice has been caused to the petitioner and the orders of the Courts below will not be vitiated on this ground also.

Both the Courts below have recorded concurrent findings of fact on the question of bonafide need as well as on the question of comparative hardship and this Court while exercising powers under Article 226 of the Constitution will not interfere in those findings unless they are shown to be perverse or suffering from any manifest error of law. In the present case learned counsel for the petitioner could not point out any such defect in those findings and thus this writ petition is liable to be dismissed.

Learned Counsel for the petitioner then submitted that a reasonable time may be allowed to the petitioner to vacate the shop in question and to make some alternative arrangement. Learned Counsel for the landlord pointed out that the release application is pending since 1982. In the circumstances, petitioner is given four months time to vacate the premises in question provided he within one month files an undertaking before the Prescribed Authority to the effect that the petitioner will vacate the shop in question and handover its vacant possession to the landlord by 151197. On such an undertaking being filed within the specified time of one month from today, the execution of the impugned release order shall remain stayed up to 151197. However, if no such undertaking is filed, the respondent shall be at liberty to get the execution of the order enforced. Parties are directed to bear their own costs of this writ petition.