Surendra Pal & Another vs Prescribed Authority/Munsif East, Hardoi & Others

Mr. Justice Binod Kumar Roy, J.

In this writ petition the prayer is to quash (i) the order dated 4.2.1983 passed by the Prescribed Authority (Munsif, East), Hardoi in P.A. case no. 1 of 1980 allowing the application filed under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the Act) directing release of house no., 538 situate in Mohalla Nabbi Purwa, Dharmshala Road, Hardoi; and (ii) the appellate order dated 29.8.1984 passed by III Addl. District Judge, Hardoi dismissing M.R.A. No. 6 of 1983 preferred by original petitioner no. 1 Surendra Pal.

The case has got a chequered career. The application for release jointly filed by the landlordsopposite parties nos. 3 and 4 against the original petitioner no. 1 was initially dismissed vide order dated 27.1.1982, as contained in Annexure3, which on appeal preferred by opposite parties nos. 3 and 4, was set aside vide order dated 20.10.82, as contained in Annexure4, and the case was remitted. After remand it was allowed vide order dated 4.2.1983, as contained in Annexure5, after recording the following findings: (i) The applicant no. 2, in whose favour her father has gifted the disputed house by registered deed of Gift wants for her residence so that she could do some business by residing along with her husband in Hardoi and that she has no other house except the same or has constructed any other house, (ii) In terms of Section 3(g) ''brother'' does not come within the definition of the word ''tenant of the house in question. The original petitioner no. 1 went up in appeal which, as already stated, was dismissed vide order dated 29.8.84, as contained in Annexure6, after recording the following findings: (i) The appellant still continues to be the tenant who has not stated that he has vacated the house in question and that his tenancy has expired, (ii) There is plea of only deemed vacancy and there was no plea of actual vacancy.

During the pendency of this writ petition the original petitioner No. 1 died and he has been substituted by his widow and sons, it is worth mentioning that the eviction was sought for on the ground also that original petitioner no. 1 tenant had constructed a house in the name of his wife (substituted petitioner no. 1).

Sri D.C. Mukherjee, learned counsel appearing in support to this petition, made the following contentions: (i) He is not pressing this writ petition on behalf of the petitioner no.2. (ii) it was salutory for the courts below to have recorded a positive finding in regard to the bona fide need of the doneelandlady. This not having been done the order of the original authority and that of the appellate authority, who has also not considered this aspect of the matter, both are liable to be set aside. In this context he placed considerable'' reliance on two decisions of this Court in Sharda Prasad v. Smt. Sampati Devi & others. 1983 (1) Allahabad Rent Cases 378, and Kalpnath Pandey v. XI Additional District Judge Lucknow and others. 1993 (2) Lucknow Civil Decisions 498.

As requested, this writ petition on behalf of petitioner no. 2 is dismissed as not pressed.

Coming to the next submission I find that the original authority has considered the question of bonafide requirement of the doneelandlady, opposite party no. 4 herein, who was applicant no. 2 and thereafter has allowed her claim of eviction. Thus, the decisions cited do not apply to the facts and circumstances of the instant case. This apart, I find that it was the case of the landladyapplicant that the original petitioner no. 1 has constructed a house in the name of his wife. The wife (now widow) has already been substituted on her application in place of the original petitioner no. 1 tenant. For this additional reason also I do not find anything to justify interference by this Court in exercise of its discretionary jurisdiction.

For the reasons aforementioned this writ petition is dismissed but in the peculiar facts and circumstances there shall be no order as to cost.

The office is commanded to dispatch a copy of this order immediately to the original authority.

(Petition dismissed.)