Sri Ram Gopal vs Addl. District Judge and Others

Rajesh Tandon, J.—This writ petition arising out of the order dated 6-5-2003 passed by the Addl. District Judge, Fast Track Court No. 5, Dehradun.

The brief facts of the case are that respondents No. 2, 3, 4, 5 and 6 have filed an application u/s 21 of U.P. Act No. XIII of 1972 in the year 1999 praying for the release of non-residential accommodation No. 37/42, Jhanda Bazar, Dehradun of which the petitioner is a tenant of the accommodation at the rate of Rs. 25/- per month. The facts stated in the application shows that the shop in dispute was required by the respondent- landlord for running his own business of Cosmetics. The petitioner has filed written statement denying the averment contained in the application.

The Prescribed Authority vide order dated 10-7-2001 has allowed the application. Aggrieved by the aforesaid order an appeal was preferred in the Court of District Judge, Dehradun. During the pendency of appeal an application has been filed by the petitioner for amendment of the written statement after praying for adding paragraphs 45 to 49 which are as under :

^^45 ;g fd izkFkhZ izLrqr okn ls iwoZ nks nqdkusa csp pqdk gS ;fn mls nqdku dh vko'';drk Fkh rks og nks nqdkuksa dks csprk D;ksaA

46 ;g fd mRrjkapy jkT; cuus ds ckn nsgjknwu esa cgqr T;knk HkhM+ gks x;h gS ftl dkj.k nqdku bl le; miyC/k ugha gSA

47 ;g fd foi{kh us eqdnesa ds nkSjku Hkh nqdku dh Nkuchu dh vkSj dksf''k''k dh ysfdu mls dksbZ nqdku mfpr iz;kl djus ds ckn Hkh ugha feyhA

48- ;g fd izkFkhZ dks nqdku dh dksbZ vko'';drk ugha gSA

49 ;g fd izkFkhZ dk izkFkZuki= [kkfjt gksus ;ksX; gSA

The appellate authority vide his order dated 6-5-2003 has recorded his finding that so far as the first amendment is concerned the same has already been included in paragraphs 9 and 21 of the W.S. therefore, the amendment is not required at all. Therefore, amendment to the effect has been rightly rejected by the appellate Court.

The counsel for the petitioner Sri V. K. Kohli however, has pressed in respect of the amendment mentioned in paragraphs 46, 47. and 48. So far as amendment made in paragraphs 46, 47 and 48 are concerned a perusal of the written statement shows that this plea is already mentioned in paragraphs 35 and 36 of the written statement where the following pleadings arc already there.

35 ;g fd foi{k ,d xjhc O;fDr gS mldh bruh lkeFkZ ugha gS fd og Hkkjh fdjk;s dh nqdku ys lds ;k nqdku �; dj lds vFkok nqdku ds fy, ixM+h ns ldsA

36 ;g fd ;g Hkh mYys[kuh; gS fd foi{k ds Lrj dks ns[krs gq, fookfnr nqdku ds vfrfjDr foi{k dks dksbZ vU; nqdku miyC/k ugha gS u gksuh gh laHko gSA

Proviso to Section 21(1) contains the provision for comparison of hardship which reads as under :

"Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed."

In the case of Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, , it has been observed by Hon''ble Supreme Court, that the whole object of the Act is to provide for the control of rents and evictions, for the leasing of buildings etc. It has been observed that onus of proof of this is certainly on the landlord. The Apex Court has observed that both the sides must adduce all relevant evidence before the Court. While deciding aforesaid case their Lordships have relied upon a case of M/s. Central Tobacco Co. v. Chandra Prakash AIR 1969 NSC 88 to the following effect :

"In our opinion both sides must adduce all relevant evidence before the Court; the landlord must show that other reasonable accommodation was not available to him and the tenant must also adduce evidence to that effect. It is only after sifting such evidence that the Court must form its conclusion on consideration of all the circumstances of the case as to whether greater hardship would be caused by passing the decree than by refusing to pass it."

Similar view has been taken in the case of Bhagwan Das Vs. Smt. Jiley Kaur and another, , where the Apex Court has relied upon the judgment of Bega Begum (supra) and it has been held as under :

"In Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, . it was held that in deciding the extent of the hardship that may be caused to one party or the other, in case a decree for eviction is passed or is refused, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the plaintiff to prove that lesser disadvantages will be suffered by the defendants and that they were remediable."

In the light of the provisions u/s 21 It is implicit in the proviso of Section 21(1) regarding evidence of the tenant concerning hardship to himself. For other factors as well he has to explain by leading proper evidence in the case. It also includes the efforts taken by the tenant.

Apart from that each party has to prove relative advantages or disadvantages, the evidence has to be led by the tenant in accordance with the provisions as has been provided in the Act. The paragraphs sought to be amended are, therefore, implicit in the proviso to Section 21(1) of the Act itself. The petitioner, therefore, will be at liberty to prove regarding efforts made by him by filing supplementary affidavit in accordance with the proviso to Section 21(1) of the Act.

In the light of aforesaid the observations there is no need to allow the amendment in the written statement.'' The writ petition, therefore, is dismissed.