# Kishan Chandra v. Dinesh Chandra & Ors

- **Citation:** (2019) 3 ILRA 337
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-30
- **Case number:** Writ-A No. 52198 of 2014
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishan-chandra-v-dinesh-chandra-ors-44887
- **Pages:** 11

## Headnote

A. Civil Law-U.P. Act XIII of 1972 - Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972-
Release application under Section 21-
Rent case-Crucial date for release of the
accommodation in a rent case on the
ground of bonafide need of the landlord-
effect of the death of the landlord during
pendency of writ petition - legality of
direction given by the Appellate Court to
the
landlord
to
provide
alternative
accommodation to the tenant.
 (Para 24,26,27)

B. Crucial date for bonafide need in an
application for release and effect of
subsequent event of death of landlord-
"actus curiae neminem gravabit" that
"an act of the Court shall prejudice no
man" shall also come into operation The
need of the landlord for premises in question
must exist on the date of application for
eviction, which is the crucial date and it is on
the said date the tenant incurred the liability
of being evicted therefrom- Even if the
landlord died during the pendency of the writ
petition in the High Court, the bona fide need
cannot be said to have lapsed as the business
in question can be carried on by his widow or
any other son. (Para 24,27)

C. Whether Appellate Court can direct
the landlord to provide an alternative
accommodation to the tenant in the
premises owned or partly owned by his
son or wife -.No power has been conferred
to issue a direction to the landlord to provide
an alternative accommodation to the tenant as
a condition for release of the disputed
accommodation- the direction of the appellate
court
to
the
landlord
to
provide
an
accommodation to the respondent-tenant is
without jurisdiction. (Para 26,27)

Petition allowed with costs (E-7)

Precedent followed: -

## Text

3 All. Kishan Chandra Vs. Dinesh Chandra & Ors.
337
(2019)11ILR A337

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 52198 of 2014

Kishan Chandra ...Petitioner
Versus
Dinesh Chandra & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rishi Kant Singh, Sri Abu Bakht, Sri
Pramod Kumar Jain, Sri R.K. Jain

Counsel for the Respondents:
Sri Swapnil Kumar, Sri Sudhanshu Kumar,
Ms. Trapti Gupta

A. Civil Law-U.P. Act XIII of 1972 - Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972-
Release application under Section 21-
Rent case-Crucial date for release of the
accommodation in a rent case on the
ground of bonafide need of the landlord-
effect of the death of the landlord during
pendency of writ petition - legality of
direction given by the Appellate Court to
the
landlord
to
provide
alternative
accommodation to the tenant.
 (Para 24,26,27)

B. Crucial date for bonafide need in an
application for release and effect of
subsequent event of death of landlord-
"actus curiae neminem gravabit" that
"an act of the Court shall prejudice no
man" shall also come into operation The
need of the landlord for premises in question
must exist on the date of application for
eviction, which is the crucial date and it is on
the said date the tenant incurred the liability
of being evicted therefrom- Even if the
landlord died during the pendency of the writ
petition in the High Court, the bona fide need
cannot be said to have lapsed as the business
in question can be carried on by his widow or
any other son. (Para 24,27)

C. Whether Appellate Court can direct
the landlord to provide an alternative
accommodation to the tenant in the
premises owned or partly owned by his
son or wife -.No power has been conferred
to issue a direction to the landlord to provide
an alternative accommodation to the tenant as
a condition for release of the disputed
accommodation- the direction of the appellate
court
to
the
landlord
to
provide
an
accommodation to the respondent-tenant is
without jurisdiction. (Para 26,27)

Petition allowed with costs (E-7)

Precedent followed: -

1. Shakuntala Bai & ors. Vs Narayan Das &
ors. (2004) 5 SCC 772

2. Shantilal Thakordas & ors. Vs Chimanlal
Maganlal Telwala (1976) 4 SCC 417

3. Kamleshwar Prasad Vs Pradumanju Agarwal
(Dead) by LRs., (1997) 4 SCC 413

Precedent over -ruled: -

1. Phul Rani & ors. Vs Naubat Rai Ahluwalia,
(1973) 1 SCC 688 (Para-21)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

"Crucial date for release of the
accommodation in a rent case on the
ground of bonafide need of the landlord,
effect of the death of the landlord during
pendency of writ petition and legality of
direction given by the Appellate Court to
the landlord to provide alternative
accommodation to the tenant, are the
main questions involved in this petition."

1- Heard Sri Pramod Kumar Jain,
learned Senior Advocated, assisted by Sri
338 INDIAN LAW REPORTS ALLAHABAD SERIES
Rishi Kant Singh, learned counsel for the
petitioner and Sri Sudhanshu Kumar
holding brief of Sri Swapnil Kumar,
learned
counsel
for
the
defendanttenant/respondent.

Order
on
Substitution
Application No.03 of 2019

2- The sole petitioner Sri Kishan
Chandra has died leaving behind his heirs
and legal representatives as mentioned in
the prayer clause of the application.

3-

Learned
counsel
for
the
defendant-tenant-respondent
has
no
objection to the aforesaid substitution
application. Therefore, the Substitution
Application
is
allowed.
Necessary
correction in the array of parties be
carried out.

Order on Writ Petition

FACTS OF THE CASE

4- Briefly stated facts of the present
case are that the original plaintiff Kishan
Chandra was the owner and landlord of
the disputed house situate in Qasba
Jalesar District Etah, measuring 14' x 38''.
In the said house, the entire ground floor
portion, except a shop measuring 3' 9'' x
10' 3'', was occupied by the father of the
petitioner, namely, Sri Prem Chandra as
tenant at a monthly rent of Rs.20/-. The
aforesaid` other shop measuring 3' 9''x10'
3'' was occupied by another tenant Sri
Girraj Kishore.

5- The original plaintiff Kishan
Chandra was carrying on his business of
cloth from a tenant shop which was
owned by one Sri Hari Om, who filed a
release application under Section 21 of
the U.P. Act XIII of 1972 being Case
No.47 of 1983, which was decreed and
the
appeal
filed
by
the
original
plaintiff/petitioner was dismissed and the
shop has been vacated by the plaintiff.
Thus, the petitioner was in the need of a
shop to start his business.

6- The original tenant Prem Chandra
died and the tenancy of the disputed shop
was succeeded by his sons, namely,
Padam Chandra Jain, Subhash Chandra
Jain, Dinesh Chandra Jain, one daughter
Smt. Shailesh Jain and the widow Smt.
Prabhawati Devi.

7- On the ground of bonafide need
of the disputed shop for his business and
also for employment of his sons, the
original plaintiff/petitioner filed P.A.
Case No.02 of 1994 (Kishan Chandra Jain
v. Padam Chandra Jain and others), which
was decreed after about 20 years by
judgment dated 23.2.2006, passed by the
Prescribed Authority/Civil Judge (Junior
Division), Etah and the disputed shop was
directed to be vacated.

8- Against the aforesaid judgment
dated 22.3.2006 one of the defendanttenant/respondent no.1 filed Rent Control
Appeal No.02 of 2006 (Dinesh Chandra
v. Kishan Chandra and others), which was
conditionally allowed by the impugned
judgment dated 23.8.2014, passed by the
District Judge, Etah directing as under :

"यह रेन्ट कन्टर ल अपील अंितः
सिति स्वीकार की जाती है तथा र्वद्वान
र्नयत
प्रार्धकारी/र्सर्वल
जज
(जुर्नयर
र्िवीजन), एिा द्वारा पाररत आिेि र्िनांर्कत
23-02-2006 अंितः इस प्रकार संि र्धत
र्कया जाता है र्क भवन स्वामी/प्रत्यथी,
अपीलाथी/र्करायेिार
क
र्वकल्प
में
3 All. Kishan Chandra Vs. Dinesh Chandra & Ors.
339
रामग पाल की र्करायेिारी वाली िुकान र्जस
पर चार मंर्जल िुकान की इमारत बनी है
अथवा अपनी पत्नी व अपने पुत्र प्रिीप के
स्वार्मत्व वाली िुकान र्जसमें चार मंर्जल
भवन बन रहा और उसमें ि मंर्जल पूणि ह
चुकी है, में से क ई एक िुकान भूतल पर
अपीलाथी/र्करायेिार क माकेि रेि के
र्कराये पर ि माह के अन्दर उपलब्ध करा
िे त अपीलाथी/र्करायेिार प्रश्नगत िुकान
क ररक्त करके उसका कब्जा भवन
स्वामी/प्रत्यथी क िे िे। यर्ि भवन स्वामी
इस र्वकल्प क स्वीकार नहीं करता है त
यह अपील स्वीकार समझी जायेगी।"

9- Aggrieved with the aforesaid
impugned
judgment,
the
original
plaintiff/landlord has filed the present
writ petition.

10- During pendency of the petition,
the original plaintiff Kishan Chandra died
on 08.01.2019, leaving behind his widow
Vijay Lakshmi, four sons, namely,
Pradeep Kumar, Sanjay Kumar, Mukesh
Kumar and Rajnedra Kumar and five
daughters, namely, Km. Rajni, Km. Alta,
Km. Pinki, Km.Bobby and Rupesh
Kumari who have been substituted.

11- The P.A. Case No.47 of 1983
filed by the original plaintiff for release
of the small shop in occupation of the
tenant Giriraj Kishore was allowed by
the Prescribed Authority. The tenant
Girraj Kishore brought the matter up to
this Court by filing Writ-A No.49335 of
2014 (Girraj Kishore v. Kishen Chandra)
which was dismissed by this Court by
order dated 15.9.2014 holding as under:

"Heard Sri A.K. Gupta, learned
counsel for the petitioner. Sri P.K. Jain,
Senior Advocate, assisted by Sri Rishi
Kant Singh, learned counsel has appeared
for the respondent.

The petitioner has filed this writ
petition challenging the judgments and
orders of the courts below allowing the
release application of the respondent
under Section 21(1)(a) of the U.P. Act
No.13 of 1972 (hereinafter referred to as
the Act) whereby the shop in dispute has
been ordered to be released in favour of
the respondent after holding his need to
be bona fide and that he would suffer
comparatively more hardship than the
petitioner.

The submission of Sri A.K.
Gupta, learned counsel for the petitioner
is that there are two shops. One bigger
and the other smaller which is in dispute.
The respondent had applied for the
release of both the shops. The release
application in respect of both of them
have been allowed but the appellate court
while allowing the release application in
respect of the bigger shop has issued
direction that the respondent will provide
the tenant of the said shop with an
alternative accommodation elsewhere on
the prevailing market rent whereas no
such direction while releasing the smaller
shop in dispute has been given though
both the judgments are identical and
similarly worded.

I have perused the impugned
judgments and orders of the courts below.

In
allowing
the
release
application under Section 21(1)(a) of the
Act it is not incumbent upon the court to
direct for providing any alternative
accommodation
to
the
tenant.
No
provision of law has been shown where
the
tenant
can
get
an
alternative
accommodation
in
the
event
the
application of the landlord for the release
of the shop has been allowed under
Section 21(1)(a) of the Act.
340 INDIAN LAW REPORTS ALLAHABAD SERIES

The argument that direction to
this effect has been given in favour of the
tenant of the bigger shop is of no
substance. First for the reason that there is
no provision to such an effect. Secondly,
the case of the petitioner is different from
that of the tenant of the other shop. The
petitioner is found to be having an
alternative accommodation where he can
shift his business. Therefore, it was not
considered proper and necessary to issue
any
direction
for
providing
some
alternative accommodation to him.

Sri A.K. Gupta has argued that
the appellate court in recording the above
finding has not considered the affidavit of
the petitioner which was before the
prescribed authority that he has no
alternative shop with him.

The prescribed authority in its
judgment on consideration of the entire
evidence has recorded a finding that the
petitioner is in possession of a one
another shop apart from the shop in
dispute which is on rent and that he is
having two residential houses which are
big enough with sufficient rooms vacant
and as such has accommodation available
with him to easily shift his business.

In view of above finding of the
prescribed authority, it is clear that the
petitioner
is
having
an
alternative
accommodation and therefore, it was not
necessary for the appellate court to have
issued any direction for providing any
additional alternative accommodation to
the petitioner.

Sri Gupta, in the end prayed for
some reasonable time to vacate the shop
in dispute.

Sri Jain, though opposes the
prayer but leaves it upon the discretion of
the court to grant some reasonable and
suitable time if necessary.

In view of above, four months
from today is allowed to the petitioner to
vacate the shop in dispute provided an
undertaking on affidavit is given before
the prescribed authority within a period of
one month that the petitioner would
vacate and handover peaceful possession
of the shop in dispute within time allowed
as above and at the same time pays all the
upto date dues.

Accordingly, the writ petition
has no merit and is dismissed with the
above condition. "

( Emphasis supplied by me)

SUBMISSIONS-

12- Sri P.K. Jain, learned counsel
for
the
plaintiff-landlord/petitioner
submits that during pendency of the
release application, the sons of the
original
plaintiff,
namely,
Rajendra
Kumar and Pradeep Kumar purchased
some accommodation in which they
raised certain constructions and are
occupying those premises for their self
use. The original plaintiff was the owner
of half portion of the shop under tenancy
of Sri Ram Gopal, which was a very
small shop measuring 5' x 9' 8" as has
also been stated in paragraph-4 and 24 of
the writ petition which has not been
specifically denied by the defendanttenant/respondent in paragraph nos. 4 and
16 of the counter affidavit. After the said
shop was subsequently vacated by the
tenant Ram Gopal, the original plaintiff's
son Rajendra Kumar is carrying on
business in it after reconstruction. In the
inner side of the said shop a stair case has
been made to go on the upper floor as
reflected in the photographs also. There is
no separate passage for the upper floor.
That apart, now there are ten co-owners
3 All. Kishan Chandra Vs. Dinesh Chandra & Ors.
341
and landlords of the shop vacated by Sri
Ram Gopal. Thus, the appellate court has
wrongly directed to provide an alternative
accommodation
to
the
defendanttenant/landlord-respondent no.1 either in
the building (Ram Gopal's shop) or in the
building owned by Pradeep Kumar or
Rajendra Kumar. The lower court has not
recorded any finding to reject the
bonafide need of the plaintiff. There is no
provision under the Rent Control Act,
which empowers the court to issue such a
direction as given in the impugned
judgment. Such a direction is in conflict
with law laid down by this Court in Girraj
Kishore's case (supra). Except a very
small portion, the entire ground floor
portion has been occupied by the
defendant-tenant/respondent no.1, while
the plaintiff was having no place for his
business. He, therefore, submits that the
impugned judgment of the appellate court
deserves to be set aside and the judgment
of the trial court deserves to be restored.

13- Sri Swapnil Kumar, learned
counsel
for
the
defendanttenant/respondent no.1 submits that
only the defendant-tenant/respondent no.1
is occupying the disputed shop. The other
defendant-tenant/respondent nos. 2, 3, 4
and 5 are not carrying on the business
from the disputed shop. Bonafide need of
the original plaintiff came to an end on
account of his death on 08.01.2019. The
original plaintiff and his two sons have
several accommodation and, therefore,
the appellate court has rightly directed
that the disputed shop be released subject
to the condition that the plaintiff may
provide an alternative accommodation to
the defendant-tenant/respondent no.1. The
plaintiffs have constructed four storied
building on the accommodation vacated
by the tenant Ram Gopal and, therefore,
the court below rightly directed for
providing a shop to the defendanttenant/respondent in the aforesaid four
storied building.

14- The small shop of the tenant
Girraj Kishore, adjoining the disputed
shop has also been vacated. Therefore,
there is no need of the plaintiff for the
disputed shop. The sons and daughters of
the original plaintiff have become the coowner and landlord of the disputed shop.
Thus, since, the sons themselves have
become the owner and landlords of the
disputed shop, therefore, the need of the
original plaintiff cannot be looked into.

DISCUSSION
AND
FINDINGS-

15- I have carefully considered the
submissions of the learned counsel for the
parties.

16- There is no dispute of landlordtenant relationship between the plaintiffpetitioner and the defendants-respondents.
There is also no dispute that the original
plaintiff/petitioner
was
carrying
on
business in a rented shop which was got
vacated by its owner and landlord and,
therefore, he was in bonafide need of the
disputed shop to carry on his business.

Reg. Building of Ram Gopal's
Shop

17- The original plaintiff owned the
disputed shop and half portion in the shop
under tenancy of one Ram Gopal. The
other half portion of the shop of Ram
Gopal was subsequently, purchased by
the eldest son of the original plaintiff,
namely,
Rajendra
Kumar.
Thus,
Rajendra Kumar and the original
342 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff
became
co-onwer of
the
disputed shop which is a four storied
building admittedly measuring 5' 9" x
18' and from inside the shop on the
ground floor a stair case has been made
for approach to the upper floor. This shop
being very small having no separate
access and partly owned by the aforesaid
Rejendra Kumar, who is carrying on
business from it, could not have been
directed by the court below for providing
a portion in it to the defendanttenant/petitioner
as
an
alternative
accommodation for vacating the disputed
shop of the plaintiff Kishan Chandra.

Reg. Building owned by the
plaintiff's son Pradeep Kumar

18- So for as the other building
owned by the other son of the plaintiff,
namely, Sri Pradeep Kumar is concerned,
it has not been disputed before me that Sri
Pradeep Kumar is carrying on his
business from it. He is co-owner. The
other co-owner is the wife of the original
plaintiff. Therefore, there was also no
occasion for the court below to issue
direction for providing a shop in the
accommodation owned by Sri Pradeep
Kumar.

Bonafide Need

19- It could not be established by
the defendant-tenant/respondent no.1 that
the plaintiff was having no bonafide need
for the disputed shop. The release
application was filed by the plaintiff for
his bonafide need for starting cloth
business and also for the employment of
his sons. Finding of fact has been
recorded by the Prescribed Authority that
the plaintiff is in bonafide need of the
disputed shop. This finding of fact has not
been set aside by the appellate court by
the impugned judgment in Rent Control
Appeal
No.02
of
2006.
Therefore,
findings
of
fact
recorded
by
the
Prescribed Authority in P.A. Case No.02
of 1994 on the point of bonafide need,
requires no interference and is upheld.

Crucial date for bonafide
need in an application for release and
effect of subsequent event of death of
landlord.

20- The submission in this regard
made by the learned coiunsel for the
tenant-respondent, has no substance. In
the case of Kamleshwar Prasad v.
Pradumanju Agarwal (Dead) by LRs.,
(1997) 4 SCC 413 (Paragraph No.3),
Hon'ble Supreme Court laid down the law
that the fact that the landlord needed
premises in question for starting a
business in the eye of law must be the day
of application for eviction which is the
crucial date when the tenant incurred the
liability of being evicted from the
premises. Even if the landlord died during
pendency of the writ petition in the High
Court, the bonafide need cannot be said to
have lapsed as the business in question
can be carried on by his widow or any
other son.

21- In Phul Rani & Ors. vs
Naubat Rai Ahluwalia, 1973(1) SCC
688, a two Judges Bench of Hon'ble
Supreme Court framed three questions.
While answering one of the questions, it
held
that
the
requirement
of
the
occupation of the other members of the
family of the original landlord was his
personal requirement and ceased to be the
requirement of the members of his family
on his death. The law so laid down in
Phul Rani's case (supra), was over ruled
3 All. Kishan Chandra Vs. Dinesh Chandra & Ors.
343
by a larger bench in Shantilal Thakordas
& Ors vs Chimanlal Maganlal Telwala
1976 (4) SCC 417. The Larger Bench in
Shantilal Thakordas & Ors. (supra)
held as under:

"If
the
law
permitted
the
eviction of the tenant for the requirements
of the landlord "for occupation as a
residence for himself and members of his
family" then the requirement was both of
the landlord and the members of his
family. On his death, the right to ' sue did
survive to the members of the family of
the deceased landlord. We are unable to
take the view that the requirement of the
occupation of the members of the family
of
the
original
landlord
was
his
requirement and ceased to be the
requirement of the members of his family
on his death."

22- In Shakuntala Bai and others
v. Narayan Das and others, (2004) 5
SCC 772 (Paragraph Nos. 10.1 and 11),
Hon'ble Supreme Court held as under:

"10.1 With regard to this
category of cases it was held that the
estate is entitled to the benefit which,
under a decree, has accrued in favour of
the plaintiff and, therefore, the legal
representatives are entitled to defend
further proceedings, like an appeal, which
constitute a challenge to that benefit.
Even otherwise, this appears to be quite
logical. In normal circumstances after
passing of the decree by the trial Court,
the original landlord would have got
possession of the premises. But if he does
not and the tenant continues to remain in
occupation of the premises it can only be
on account of the stay order passed by the
appellate Court. In such a situation, the
well
known
maxim
"actus
curiae
neminem gravabit" that "an act of the
Court shall prejudice no man" shall come
into operation. Therefore, the heirs of the
landlord will be fully entitled to defend
the appeal preferred by the tenant and
claim possession of the premises on the
cause of action which had been originally
pleaded and on the basis whereof the
lower Court had decided the matter and
had passed the decree for eviction.
However in regard to the case before the
court it was held that the requirement
pleaded in the ejectment application on
which the plaintiff founded his right to
relief was his personal requirement and
such a personal cause of action must
perish with the plaintiff. On this ground it
was held that the plaintiff's right to sue
will not survive to his heirs and they
cannot take the benefit of the original
right to sue.

11. In Shantilal Thakordas v.
Chimanlal Maganlal Telwala (1976) 4
SCC 417, a larger Bench overruled the
decision rendered in Phool Rani v.
Naubat Rai Ahluwalia insofar it held that
the requirement of the occupation of the
members of the family of the original
landlord was his personal requirement
and ceased to be the requirement of the
members of his family on his death. The
Court took the view that after the death of
the original landlord the senior member of
his family takes his place and is well
competent to continue the suit for eviction
for his occupation and occupation of the
other members of the family. Thus, this
decision held that the substituted heirs of
the deceased landlord were entitled to
maintain the suit for eviction of the
tenant. The ratio of this decision by a
larger Bench does not in any manner
affect the view expressed in Phool Rani
(1973)1 SCC 688 that where the death of
the landlord occurs after a decree for
344 INDIAN LAW REPORTS ALLAHABAD SERIES
possession has been passed in his favour,
his legal representatives are entitled to
defend further proceedings like an appeal
and the benefit accrued to them under the
decree. In fact, the ratio of Shantilal
Thakordas (1976)45 417 would reinforce
the aforesaid view. There are several
decisions of this Court on the same line.
In Kamleshwar Prasad v. Pradumanju
Agarwal 1997(4) SCC 413 it was held
that the need of the landlord for premises
in question must exist on the date of
application for eviction, which is the
crucial date and it is on the said date the
tenant incurred the liability of being
evicted therefrom. Even if the landlord
died during the pendency of the writ
petition in the High Court, the bona fide
need cannot be said to have lapsed as the
business in question can be carried on by
his widow or any other son. In Gaya
Prasad v. Pradeep Srivastava (2001) 2
SCC 604 it was held that the crucial date
for deciding as to the bonafides of
requirement of landlord is the date of his
application for eviction. Here the landlord
had instituted eviction proceedings for the
bona fide requirement of his son who
wanted to start a clinic. The litigation
continued for a long period and during
this period the son joined Provincial
Medical Service and was posted at
different places. The subsequent event i.e.
the joining of the service by the son was
not taken into consideration on the ground
that the crucial date was the date of filing
of the eviction petition. Similar view has
been taken in G.C. Kapoor v. Nand
Kumar
Bhasin
(2002)1
SCC
610.
Therefore, the legal position is well
settled that the bona fide need of the
landlord has to be examined as on the
date of institution of proceedings and if a
decree for eviction is passed, the death of
the landlord during the pendency of the
appeal preferred by the tenant will make
no difference as his heirs are fully entitled
to defend the estate."

23- Thus, in view of the decision
made above and respectfully following
the law laid down by Hon'ble Supreme
Court in the judgments referred above, I
hold that the legal position is well settled
that the bonafide need of the landlord has
to be examined as on the date of
institution of proceedings and if a decree
of eviction is passed, the death of the
landlord during the pendency of the
appeal or writ petition or a petition under
Article 227 preferred by the tenant will
make no difference. The heirs of the
landlord will be fully entitled to claim
possession of the premises on the cause of
action which had been originally pleaded
and on the basis whereof the lower court
had decided the matter and had passed the
decree for eviction. Death of the landlord
during the pendency of the petition before
this Court, would not mean that the
bonafide need has lapsed, as the business
in question can be carried on by his
widow or any other son. Landlord's death
will not make any difference as his heirs
are fully entitled to defend the estate. If
the subsequent event like the death of
landlord is to be taken note of at every
stage till the decree attains finality, there
will be no end to litigation.

24- In the present set of facts the
P.A. Case No.02 of 1994 was instituted
by the landlord-petitioner and after about
20 years it was decreed by the Prescribed
Authority/Civil Judge (Junior Division),
Etah by judgment dated 23.2.2006.
However, due to pendency of Rent
Appeal No.02 of 2006 filed by the tenantrespondent, the decree could not be
instituted and the tenant could not be
3 All. Kishan Chandra Vs. Dinesh Chandra & Ors.
345
evicted. Eight years were exhausted to
decide the appeal and now from five
years the present petition is pending
before this Court and ultimately, the
landlord died recently on 8.1.2019. The
tenant continued in occupation of the
disputed premises because of some
interim order in the appeal. In such a
situation the well known maxim "actus
curiae neminem gravabit" that "an act
of the Court shall prejudice no man"
shall also come into operation.

25- In view of the discussions, all
the submissions made by the tenantrespondent are rejected.

Whether Appellate Court can
direct the landlord to provide an
alternative accommodation to the tenant
in the premises owned or partly owned
by his son or wife.

26- The directions given by the
appellate court to the plaintiff for
providing an alternative accommodation
is in conflict with the law laid down by
this Court in the case of the other tenant
Girraj Kishore (supra), which has been
reproduced in para 11 above. Therefore,
the impugned judgment of the appellate
court can also not be sustained in view of
the law laid down by this Court in Girraj
Kishore's case (supra) and the discussion
made above. Besides, it is well settled
that the appeal is a creation of Statute.
Section 22 of the U.P. Act XIII of 1972,
provides for a statutory remedy of appeal
against an order passed under Section 21
or Section 24 of the Act. Section 21 does
not provide for a direction to the landlord
to
make
available
an
alternative
accommodation to the tenant as per
provision of Section 22 read with Section
10 of the Act, the appellate court may
confirm, vary or rescind the order, or
remand the case. No power has been
conferred to issue a direction to the
landlord
to
provide
an
alternative
accommodation to the tenant as a
condition for release of the disputed
accommodation. Therefore, the direction
of the appellate court to the landlord to
provide
an
accommodation
to
the
respondent-tenant is without jurisdiction.
Thus. the appellate court has exceeded its
jurisdiction to issue such a direction.

Conclusion in Brief

27- The discussion and conclusions
made above are briefly summarized as
under:

(i) Finding of fact has been
recorded by the Prescribed Authority that
the plaintiff is in bonafide need of the
disputed shop. This finding of fact has not
been set aside by the appellate court by
the impugned judgment in Rent Control
Appeal
No.02
of
2006.
Therefore,
findings
of
fact
recorded
by
the
Prescribed Authority in P.A. Case No.02
of 1994 on the point of bonafide need,
requires no interference and is upheld.

(ii) The need of the landlord for
premises in question must exist on the
date of application for eviction, which is
the crucial date and it is on the said date
the tenant incurred the liability of being
evicted therefrom. Even if the landlord
died during the pendency of the writ
petition in the High Court, the bona fide
need cannot be said to have lapsed as the
business in question can be carried on by
his widow or any other son. In Gaya
Prasad v. Pradeep Srivastava (2001) 2
SCC 604 it was held that the crucial date
for deciding as to the bonafides of
346 INDIAN LAW REPORTS ALLAHABAD SERIES
requirement of landlord is the date of his
application for eviction.

(iii) The bonafide need of the
landlord has to be examined as on the date of
institution of proceedings and if a decree of
eviction is passed, the death of the landlord
during the pendency of the appeal or writ
petition or a petition under Article 227
preferred by the tenant will make no
difference. The heirs of the landlord will be
fully entitled to claim possession of the
premises on the cause of action which had
been originally pleaded and on the basis
whereof the lower court had decided the
matter and had passed the decree for eviction.

(iv) Death of the landlord
during the pendency of the petition before
this Court, would not mean that the
bonafide need has lapsed, as the business
in question can be carried on by his
widow or any other son. Landlord's death
will not make any difference as his heirs
are fully entitled to defend the estate. If
the subsequent event like the death of
landlord is to be taken note of at every
stage till the decree attains finality, there
will be no end to litigation.

(v) In the present set of facts the
P.A. Case No.02 of 1994 was instituted
by the landlord-petitioner and after about
20 years it was decreed by the Prescribed
Authority/Civil Judge (Junior Division),
Etah by judgment dated 23.2.2006.
However, due to pendency of Rent
Appeal No.02 of 2006 filed by the tenantrespondent, the decree could not be
instituted and the tenant could not be
evicted. Eight years were exhausted to
decide the appeal and now from five
years the present petition is pending
before this Court and ultimately, the
landlord died recently on 8.1.2019. The
tenant continued in occupation of the
disputed premises because of some
interim order in the appeal. In such a
situation the well known maxim "actus
curiae neminem gravabit" that "an act of
the Court shall prejudice no man" shall
also come into operation.

(vi) The directions given by the
appellate court to the plaintiff for providing
an alternative accommodation is in conflict
with the law laid down by this Court in the
case of the other tenant Girraj Kishore
(supra), which has been reproduced in para
11 above. The appeal is a creation of Statute.
Section 22 of the U.P. Act XIII of 1972,
provides for a statutory remedy of appeal
against an order passed under Section 21 or
Section 24 of the Act. Section 21 does not
provide for a direction to the landlord to
make
available
an
alternative
accommodation to the tenant as per
provision of Section 22 read with Section 10
of the Act, the appellate court may confirm,
vary or rescind the order, or remand the case.
No power has been conferred to issue a
direction to the landlord to provide an
alternative accommodation to the tenant as a
condition for release of the disputed
accommodation.

28- For all the reasons aforestated,
the impugned judgment dated 23.8.2014
in Rent Control Appeal No.02 of 2006
(Sri Dinesh Chandra v. Kishan Chand and
others), passed by the District Judge Etah,
cannot be sustained and is hereby set
aside. The judgment of the Prescribed
Authority/Civil Judge (Junior Division),
Etah, dated 23.2.2006 passed in P.A. Case
No.2 of 1994 (Sri Kishan Chandra v. Sri
Padam Chandra Jain and others), is
restored and upheld. The petition is
allowed with costs.
----------
3 All. Lavink Tyagi Vs. State of U.P. & Anr.
347
(2019)11ILR A347

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.10.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl Misc.Anticipatory Bail Application No.
38181 of 2019

Lavink Tyagi ...Applicant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Harish Chandra Shukla, Sri Manoj
Kumar Rai

Counsel for the Opposite Parties:
A.G.A., Sri Harish Kumar Yadav, Sri
Akhilesh Kumar Singh

A. Criminal Law -Indian Penal Code,1860Sections420,376,493,494,495,496 & Code
of Criminal Procedure,1973 -Section 438 -
grant
of
anticipatory
bail-neither
evidence nor circumstances are to be
meticulously analysed in hair splitting
manner
because
it
may
prejudice
investigation, enquiry and trial.

B. While dealing with anticipatory bail,
the nature and gravity of accusation, the
antecedents of the applicants, possibility
of the applicant to flee from justice and
where the accusation has been made
with the object of injuring or humiliating
the applicant by having him so arrested,
either reject the application forthwith or
issue an interim order for grant of
anticipatory bail.(Para 3 to 6)

Application rejected (E-6)

List of cases cited:-

1. Seema(Smt.) Vs. Ashwani Kumar (2008) 1
SCC 180
2. Pramod Suryabhan Pawar Vs. State of Mah.
& Anr.(2019) Law Suit (SC)1504

3. Joti Parshad Vs. State of Haryana, AIR 1993
SC 1167

4. State of U.P. Vs. Naushad,AIR 2014 SC 384

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. Vakalatnama filed today by Sri
Akhilesh Kumar Singh and Sri Harish K.
Yadav on behalf of O.P. No. 2 is taken on
record.

2. Heard learned counsel for
applicant, learned AGA for the State and
learned counsel for O.P. No. 2 over this
application under section 438 Cr.P.C. by
Lavink Tyagi moved for grant of
anticipatory bail in Case Crime No. 1290
of 2019, u/s 420, 376, 493, 494, 495, 496
I.P.C., P.S. Kotwali Shamli, District
Shamli.

3. Learned counsel for applicant
argued that accused applicant is innocent.
He has been falsely implicated in this
very case crime number, whereas the
complainant herself is a Police Constable,
well educated and law knowing lady. The
alleged occurrence is said to be of the
year 2014, whereas this report has been
lodged in the year 2019. There was no
misconception of fact regarding marriage
entered in between nor there was any
deception nor there was any unreasonable
belief about the fact stated by the
complainant. It has specifically been
stated in the F.I.R. lodged upon her
written report as well as in her statement
recorded u/s 164 Cr.P.C. that she entered
in marriage with applicant Lavink Tyagi
and she was blessed with a son.
Subsequently she was again blessed with