# Girish Kumar Garg v. Kali Charan & Anr

- **Citation:** (2022) 12 ILRA 900
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-14
- **Case number:** Writ-A No. 9605 of 2014
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girish-kumar-garg-v-kali-charan-anr-48064
- **Pages:** 4

## Headnote

Tenancy law-Landlord wanted the shop
facing the market on the road to settle
his second son-as he was doing business
by placing material in corridor/passage in
between
the
shop
and
building-
aggrieved
against
impugned
orderrejecting release application of landlordon
ground
of
sufficient
alternative
accommodation-5 th shop-on the back of
the
building
of
the
landlord
in
assessment register-its not a shop but an
open entry in the back room-both courts
have concurred on the bona fide needthereafter landlord cannot be suggested
to run business in the backyard area in
order to accommodate tenant.

W.P. allowed. (E-9)

List of Cases cited:

## Text

900 INDIAN LAW REPORTS ALLAHABAD SERIES
effected the right of the petitioner of filing
of his written statement and the same has a
direct effect on the petitioner inasmuch as
his reply is not to be considered. Thus,
keeping in view the law laid down by the
Full Bench judgment in the case of Smt.
Kiran Bala Srivastava (supra) along with
the judgment of Apex Court in the case of
Shah Babu Lal Khimji (supra) it clearly
emerges that the order impugned can be
termed
to
be
an
intermediary
or
interlocutory judgment. Learned counsel
for the petitioner has failed to produce any
judgment which has laid law to the
contrary.

10. Section 19 (1) of the Family Court
Act, 1984 (hereinafter referred to as "Act,
1984") provides a remedy of an appeal. The
said provision provides that an appeal shall
lie from every judgment or order not being
an interlocutory order of a family Court to
the High Court both on facts and law.

11. As this Court has already held that
the order impugned is an intermediary or
interlocutory judgment consequently, it
would not fall within the ambit of being an
interlocutory order and as such, the
petitioner has a remedy of filing of an
appeal under Section 19 (1) of the Act,
1984.

12. Accordingly, once the petitioner
has a statutory remedy of filing of an
appeal, the instant petition filed under
Article 227 of Constitution of India would
not be maintainable. The petition is
dismissed leaving it open to the petitioner
to pursue the remedy as available to him.
----------
(2022) 12 ILRA 900
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 9605 of 2014

Girish Kumar Garg ...Petitioner
Versus
Kali Charan & Anr. ...Respondents

Counsel for the Petitioner:
Sri Kshitij Shailendra

Counsel for the Respondents:
Sri Ram Kishor Pandey

Tenancy law-Landlord wanted the shop
facing the market on the road to settle
his second son-as he was doing business
by placing material in corridor/passage in
between
the
shop
and
building-
aggrieved
against
impugned
orderrejecting release application of landlordon
ground
of
sufficient
alternative
accommodation-5 th shop-on the back of
the
building
of
the
landlord
in
assessment register-its not a shop but an
open entry in the back room-both courts
have concurred on the bona fide needthereafter landlord cannot be suggested
to run business in the backyard area in
order to accommodate tenant.

W.P. allowed. (E-9)

List of Cases cited:

1. Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta
(1999) 6 SCC 222

2. Damodar Sharma Vs Nandram Deviram, AIR
1960 MP 345 (FB)

3. Ragavendra Kumar Vs Firm Prem Machinery
& Co (2000) 1 SCC 679

4. Prativa Devi Vs T.V. Krishnan (1996) 5 SCC
353

5. Sait Nagjee Purushotham & Co. Ltd. Vs
Vimalabai Prabhulal (2005) 8 SCC 252
12 All. Girish Kumar Garg Vs. Kali Charan & Anr.
901
6. G.C. Kapoor Vs Nand Kumar Bhasin (2002) 1
SCC 610
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Kshitij Shailendra,
learned counsel for the petitioner and Sri
Ram Kishore Pandey, learned counsel for
the respondents.

2. The landlord petitioner is aggrieved
against the order passed by the appellate
court in rent appeal rejecting release
application of the landlord-petitioner for
release of shop in question on the point of
sufficient
alternative
accommodation
already available with him and thus
reversing the judgment of the Prescribed
Authority.

3. Learned counsel for the petitioner
has argued that while on the point of bona
fide need both the courts below have
concurred but since there was a mention of
5th shop on the back of the building of the
landlord in the assessment register, the
appellate court erred in directing the
landlord to utilize that accommodation of
5th shop for his personal need. Learned
counsel for the petitioner has argued that
5th shop is not a shop itself but an open
entry in the back room through that shutter
which is there. It is further submitted that
once bona fide need is established of the
landlord to get the release application
granted, the court cannot direct the
landlord to adjust himself in another shop
to permit continuance of tenancy of the
shop in question in favour of the tenant. It
is also submitted that landlord is the sole
person to determine his need and decide as
to how he wants his son to be settled. It is
argued that none of the shops have been
found to be vacant one except the
accommodation which is allegedly called
as 5th shop.

4. Learned counsel for the petitioner
has relied upon a number of judgments on
the question of bona fide need and the
discretion of the court in granting release
application on the plea of bona fide need.

5. Per contra, it is argued by learned
counsel appearing for the tenant respondent
that concealment of the 5th shop in release
application itself was sufficient enough to
hold that the petitioner had the enough
vacant accommodation to settle his second
son and, therefore, need was not bona fide
one and so the findings returned by the
appellate court cannot be faulted with.

6. Having heard learned counsel for
the respective parties and their argument
raised across the bar and having gone
through the pleadings raised and judgments
of the courts below, I find that the
petitioner's bona fide need to settle his
second son into business has not been
doubted either by the prescribed authority
or by the appellate court.

7. The prescribed authority while
deciding the point of bona fide need in
favour of the petitioner landlord also
considered the comparative hardships and
according to the court it weighed more in
favour of the landlord-petitioner than the
tenant. The court below while hearing the
rent appeal has gone on to rely upon the
document of assessment filed by the tenant
in which 5th shop was also shown as a shop
backside of the building, whereas it was
case of the landlord that alleged 5th shop
opened in the room of the house from the
back side of building and was being used as
a go-down.

8. It was further submitted by learned
counsel for the petitioner that for the
purposes of running business and to settle
902 INDIAN LAW REPORTS ALLAHABAD SERIES
his second son he wanted shop facing the
market on the main road and he cannot be
asked to accommodate his son in a shop
which was on the back side of the building.
This argument appeals to reason. Landlord
of the house is the person to decide and
determine as to which accommodation he
needs to settle his son to run business. It is
not in the domain of the tenant to suggest
that which side of the building he should
utilize as an alternative to the shop for
which the release application has been
filed.

9. In the case of Shiv Sarup Gupta v.
Dr. Mahesh Chand Gupta (1999) 6 SCC
222, the Supreme Court relied upon the
judgment of Madhya Pradesh High Court
in the case of Damodar Sharma v.
Nandram Deviram, AIR 1960 MP 345
(FB) with approval wherein it was held that
the landlord was a sole arbiter of his own
requirements and what was required on his
part was to prove that he wanted the
accommodation genuinely.

10. In the case of Ragavendra
Kumar v. Firm Prem Machinery & Co
(2000) 1 SCC 679, the Court reiterated its
earlier decision in the case of Prativa Devi
v. T.V. Krishnan (1996) 5 SCC 353 in
holding that landlord is the best judge of
his requirement for residential or business
purpose and he had got complete freedom
in the matter. Again in another case Sait
Nagjee Purushotham and Co. Ltd. v.
Vimalabai Prabhulal (2005) 8 SCC 252,
wherein High Court had accepted the plea
of the tenant that one of the applicants had
settled down in the America so there was
no such bona fide need inasmuch as the
sons were already in multifarious activities
and therefore, the need of the landlord to be
not bona fide, the Supreme Court while
setting aside the order of the High Court
observed "we fail to appreciate that when
two sons are there and if they want to
expand their business for the landlords and
their sons to wait till the disposal of the
case. They have to do something in life and
they cannot wait till the appellant is evicted
from the premises in question".

11. In the case of Prativa Devi
(supra) the Supreme Court held that bona
fide personal need is a question of fact and,
therefore, such finding should not be
normally interfered with. The only question
is that the need set up must be honest and
not tainted with any oblique motive as held
in the case of G.C. Kapoor v. Nand
Kumar Bhasin (2002) 1 SCC 610.

12. In the case in hand I find that
landlord wanted the shop facing the market
on the road to settle his second son and it
has come that his son was doing business
with him by placing material in the
corridor/ passage in between the shop and
the building. This being the factual
situation, in my considered view, the
requirement of the shop in question as setup by way of bona fide need by the
petitioner
was
a
genuine
need
and
requirement.

13. No one should and, nor can
anyone suggest owner of the property to
run business in the backyard area in order
to accommodate tenant in the shop facing
market area. Exception apart where it can
be demonstrated that in an identically
placed situation landlord has sufficient
accommodation and wants release of the
tenanted premises for the purpose of
release
only
with
an
intention
to
accommodate any other tenant or new
tenant, it would be quite immoral and
unethical to guide the landlord to adjust
himself
with
available
alternative
12 All. Mohd. Ahmad & Ors. Vs. Noor Mohammad
903
accommodation to accommodate tenant at a
prime part of the building or at a prime
location.

14. In such above view of the matter,
I am not able to sustain the order of the
appellate court and, accordingly, writ
petition succeeds and is allowed.

15. The order passed by the appellate
court is set aside and the order passed by
the prescribed authority is confirmed.
----------
(2022) 12 ILRA 903
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 21951 of 2018

Mohd. Ahmad & Ors ...Petitioners
Versus
Noor Mohammad ...Respondent

Counsel for the Petitioners:
Sri Manish Tandon, Sri Shailendra Singh

Counsel for the Respondents:
Sri Atul Dayal, Sr. Advocate, Sri Ayush Khanna,
Sri Mushir Khan

The
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972-section 21(1)-Tenant Petitioneragainst order of release -Landlord purchased the
premises-tenants were in occupation since time
of former owner and landlord- landlord moved
release
application
after
29
years-non
compliance of section 21 of the Act-impugned
order did not refer to non compliance-total
absence of finding vitiate the judgment.Appeal
to be re-heard.

Petition allowed partly. (E-9)

List of Cases cited:
1. Anwar Hasan Khan Vs Mohd. Shafi & ors.,
(2001) 8 SCC 540

2. Nirbhai Kumar Vs. Maya Devi & ors., (2009) 5
SCC 399

3. Martin & ors. Harris Ltd. Vs VIth Additional
Distt. Judge & ors., (1998) 1 SCC 732
(Delivered by Hon'ble J.J. Munir, J.)

1. This tenants' writ petition is
directed against an order of release passed
by the Prescribed Authority, under Section
21(1)(a) of The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No. 13 of
1972) (for short, ''the Act'), that has been
affirmed in appeal.

2. An application for release was
moved by Noor Mohammad, the sole
respondent to this writ petition, under
Section 21(1)(a) of the Act, seeking release
of House No. 10/254-J, Heeraman Kaa
Purwa, Kanpur Nagar, admeasuring 80
square
yards,
details
of
which
are
mentioned in Schedule A at the foot of the
release application. It was registered on the
file of the Prescribed Authority/ Additional
Civil Judge (Sr. Div.), Court No.5, Kanpur
Nagar as Rent Case No. 14 of 2013.

3. Noor Mohammad claimed that he
is the owner of the aforesaid premises. The
premises were said to be 100 years old with
an arched roof and in a dilapidated
condition. The back portion on the eastern
side had already fallen down. The house is
constructed on a plot of land in two equal
parts. The northern half has two rooms, a
kitchen
and
a
courtyard,
which
is
residential and in Noor Mohammad's
occupation. The remainder half part of the
premises on the southern side has three
arched roof rooms, oriented from west to