# Smt. Fatima v. Smt. Shahana & Ors

- **Citation:** (2022) 7 ILRA 1253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-14
- **Case number:** Matters U/A 227 No. 24435 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-fatima-v-smt-shahana-ors-48860
- **Pages:** 8

## Headnote

C.S.C.,
Sri
A.Z.
Siddiqui,
Sri
Mohak
Srivastava, Sri Rajiv Raman Srivastava, Sri
Shakeel Ahmad Jamal, Sri Uma Shankar
Sahai

Civil Law - Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 28 - Enforcement of
landlord's obligation regarding repairs, etc
- Section 28 - tenant requested the
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
landlady,
to
get
the
demised
shop
repaired, but landlady refused - tenant
made an application to the Prescribed
Authority praying that she may be
permitted to get the shop repaired -
landlady filed objection saying that the
demised shop is in a dilapidated condition
-
Prescribed
Authority
rejected
the
tenant's application seeking permission to
carry out repairs - He noted that the
premises are dilapidated and cannot be
repaired - permitting repair of the shop
would be taking a risk - Held - High Court
issued a commission to ascertain whether
the shop in dispute is dilapidated beyond
redemption - Commission report showed
that the demised shop is a public nuisance
and a serious hazard to human life and
property in its vicinity & it is already under
a statutory demolition notice issued by the
Nagar Palika - directing for repair would
imperil
tenants
own
life
-
petition
dismissed with costs in the sum of
Rs.25,000/- payable by the tenant to the
landlady (Para 13, 14)

Dismissed. (E-5)

List of Cases cited:

Satya Prakash & ors. Vs District Judge,
Sultanpur & ors. , 2018 (1) AWC 877 (LB)

## Text

7 All. Smt. Fatima Vs. Smt. Shahana & Ors.
1253
mind that it will be harmful or injurious for
the petitioner to live with the other spouse.
Cruelty may be physical or mental. Mental
cruelty may consist of verbal abuse and
insult by using filthy and abusive language
leading to constant disturbance of mental
peace of the other party.

19. Thus, it appears that the ''cruelty'
under the Hindu Marriage Act has a different
meaning altogether, than that of the concept
of ''cruelty' as envisaged in the Penal Code,
1860. It necessarily follows that even the act
complained of, in the criminal proceeding
may not constitute cruelty within the meaning
of section 498A of the Penal Code, 1860, but,
still such act may constitute a ground of
divorce on the ground of cruelty where such
acts are so grave and weighty as to come to
the conclusion that the petitioner spouse
cannot be reasonably expected to live with
the other.

20. Since the concept of cruelty under
the Penal Code, 1860 is not exactly identical
with the concept of cruelty as envisaged
under section 13(1)(ia) of the Hindu Marriage
Act, this Court cannot hold that there will be
any embarrassment on the part of the Civil
Court in continuing with the trial of the suit
during the pendency of the criminal
proceeding.

21. In divorce petition, several
opportunities were given to the petitioner to
file written statement, but he failed to do so
and as such the opportunity for filing his
defence through written statement has been
closed. Thus, the divorce petition is still
pending at the stage of maturity and this
Court had already directed the learned civil
court to decide the suit expeditiously.

22.

In
my
view,
in
these
circumstances, the civil court will not find
any embarrassment, if both the criminal
proceeding and the civil suit are tried
simultaneously as the scope of enquiry and
the standard of proof in both the
proceedings are not identical. Stay of any
one of such suit/proceeding will surely
have a wrong impact not only on the
society but also on the parties in their
matrimonial
life.
Under
such
circumstances, this Court does not find any
justification to interfere with the order of
learned civil court and thus, the petition
being devoid of merit is, accordingly,
dismissed.

23. Interim order, if any, stands
vacated.
----------
(2022)07ILR A1253
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.06.2022

BEFORE

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

Matters U/A 227 No. 24435 of 2018
(Old Misc. Single No. 24435 of 2018)

Smt. Fatima ...Petitioner
Versus
Smt. Shahana & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bahar Ali, Sri R.D. Shahi

Counsel for the Respondents:
C.S.C.,
Sri
A.Z.
Siddiqui,
Sri
Mohak
Srivastava, Sri Rajiv Raman Srivastava, Sri
Shakeel Ahmad Jamal, Sri Uma Shankar
Sahai

Civil Law - Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 28 - Enforcement of
landlord's obligation regarding repairs, etc
- Section 28 - tenant requested the
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
landlady,
to
get
the
demised
shop
repaired, but landlady refused - tenant
made an application to the Prescribed
Authority praying that she may be
permitted to get the shop repaired -
landlady filed objection saying that the
demised shop is in a dilapidated condition
-
Prescribed
Authority
rejected
the
tenant's application seeking permission to
carry out repairs - He noted that the
premises are dilapidated and cannot be
repaired - permitting repair of the shop
would be taking a risk - Held - High Court
issued a commission to ascertain whether
the shop in dispute is dilapidated beyond
redemption - Commission report showed
that the demised shop is a public nuisance
and a serious hazard to human life and
property in its vicinity & it is already under
a statutory demolition notice issued by the
Nagar Palika - directing for repair would
imperil
tenants
own
life
-
petition
dismissed with costs in the sum of
Rs.25,000/- payable by the tenant to the
landlady (Para 13, 14)

Dismissed. (E-5)

List of Cases cited:

Satya Prakash & ors. Vs District Judge,
Sultanpur & ors. , 2018 (1) AWC 877 (LB)

(Delivered by Hon'ble J.J. Munir, J.)

1. This petition under Article 227 of
the Constitution has been preferred by the
tenant,
challenging
an
order
dated
10.08.2018 passed by the Prescribed
Authority under The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No.13 of
1972) (for short, 'the Act'), whereby her
application under Section 28 of the Act has
been rejected.

2. The petitioner, Smt. Fatima is a
tenant in a shop situate in Churi Wali Gali,
Mohalla Tansenganj, Pargana Khairabad,
Tehsil and District Sitapur. Smt. Fatima
shall hereinafter be called 'the tenant'. The
original tenant in the shop was the tenant's
husband and after his death, she has
inherited the tenancy, where she claims to
have a shop selling bangles. The landlady
of the shop is Smt. Shahana Siddiqui, to
whom the tenant pays rent at the rate of
Rs.550/- per month. The current tenancy is
there since the time of the former landlord,
Kamal Ahmad Siddiqui. It is claimed on
behalf of the tenant that the shop to the east
of the demised shop collapsed during the
rainy season of 2016, on account of which
the eastern wall of the demised shop and a
part of the lintel in the roof need repairs.
The tenant has requested the landlady,
respondent no.1 several times to get the
demised shop repaired, but she did not
oblige. Instead, the landlady flatly refused
the request for repairs and threatened to get
the shop vacated. Thereupon, the tenant
sued for a permanent injunction before the
Civil Judge (Jr. Div.), Sitapur seeking an
injunction in terms that she may not be
dispossessed from the demised shop
otherwise than in due course of law. The
said suit was numbered on the file of the
Civil Judge (Jr. Div.), Sitapur as O.S.
No.615 of 2016, which is still pending.

3. It is the tenant's further case that
the landlady has refused to accept rent
since
the
month
of
January,
2020,
whereupon it was remitted by money order
on 22.09.2016. The money order was also
refused. The tenant is depositing the rent in
Court under Section 30 of the Act vide
Misc. Case No. 147 of 2016. The said case
is also pending. The tenant caused a notice
to be served upon the landlady through her
Counsel on 06.12.2017 to get the eastern
wall of the demised shop repaired, which
the landlady duly received. But, the
landlady did not get any repairs carried out,
7 All. Smt. Fatima Vs. Smt. Shahana & Ors.
1255
nor did she answer the notice. Accordingly,
the tenant made an application to the
Prescribed Authority under Section 28 of
the Act, with a prayer that the eastern wall
of the demised shop, details of which were
given at the foot of the application, together
with the western part of the lintel in the
roof and the other damages to the shop,
may be permitted to be repaired and the
expenses defrayed out of rent payable for
the period of two years.

4. Objections to the said applications
were filed on behalf of the landlady, saying
that the demised shop is in a dilapidated
condition and the entire building, of which it
is a part, is dilapidated. A substantial part of
the building has fallen down over the period
of a year and a half. The tenant or her
daughters are not doing any business and the
demised shop is virtually a rubble. It is
mentioned that on 06.01.2015, the adjoining
shop's projection collapsed, leading to injury
sustained by many. At that time, the eastern
wall of the demised shop also collapsed. The
projection of the demised shop collapsed
during the rainy season. The tenant and her
daughters are insistent upon getting the
demised
shop,
which
is
dilapidated,
reconstructed forcibly. The building, where
the shop is, located is about 100-150 years
old and a danger to human life. There are
then some not very relevant pleadings to the
proceedings in hand, that say that the tenant
has purchased a premises on a road called
Krishna Babu Wali Sarak, that includes a
house and three shops. The tenant and her
daughters carry on their business there. This
property had been purchased in the names of
the tenant's daughters through a registered
sale deed dated 07.06.2016 from one Jagdish
Prasad son of Munshi Lal.

5. It has also figured on record that
the landlady has been served a notice by
the Executive Officer of the Nagar Palika
Parishad, Sitapur, under Section 263(1) of
the U.P. Municipalities Act, 1916, asking
her to demolish the demised shop, which is
dilapidated and a danger to human life and
property. A copy of the said notice dated
26.02.2016 is on record as Annexure No.3
to the writ petition. A commission was also
issued by the Prescribed Authority before
he decided the application under Section 28
of the Act by the order impugned. That
report,
though not very
informative,
broadly shows the demised property to be a
dilapidated
structure.
The
Prescribed
Authority, vide the order impugned dated
10.08.2018, has rejected the tenant's
application under Section 28 seeking
permission to carry out repairs.

6. Aggrieved, this petition has been
filed.

7. The Prescribed Authority has
remarked that the tenant has not filed any
estimate along with the application when
according to Section 28 of the Act an
estimate of the expenditure for the repairs
is essential. The papers filed by the
landlady include the notice that she had
received from the Nagar Palika, asking her
to demolish the shop as it was dilapidated
and a danger to human life and property.
The Prescribed Authority has particularly
noticed that the competent Authority in the
Nagar Palika, after due inspection, has
passed orders, requiring the landlady to
demolish the shop. It has been opined that
the notice for demolition, that the landlady
has received from the Nagar Palika, cannot
be ignored. It has been observed that
ignoring the report and permitting a repair
of the shop would be taking a risk that does
not appear to be worth its while. The
premises are dilapidated and cannot be
repaired, on account of which it has been
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
directed to be demolished. It has also been
noticed by the Prescribed Authority that
there is threat to human life and property, if
the shop is not demolished and permitted to
be repaired. It is on these findings that the
Prescribed Authority has rejected the
application.

8. Heard Mr. R.D. Shahi, learned
Counsel for the tenant-petitioner along with
Mr. Bahar Ali and Mr. U.S. Sahai and Mr.
Shakeel Ahmad Jamal, learned Counsel
appearing
on
behalf
of
the
private
respondents.

9. The learned Counsel for the tenant
has impressed upon the Court that resistance
by the landlady to the tenant's proposal and
efforts to get the demised shop repaired is an
effort to evict the tenant. The action of the
landlady in thwarting the tenant's efforts to
get the demised shop repaired at the latter's
expense is a design and stratagem to get rid
of the tenancy. Learned Counsel submits that
even if the shop is demolished, the tenancy
would not come to an end as the relationship
of landlord and tenant would continue in
respect of the underlying land. To the above
end, learned Counsel for the tenant has relied
upon a decision of this Court in Satya
Prakash and others v. District Judge,
Sultanpur and others, 2018 (1) AWC 877
(LB). In Satya Prakash (supra), it has been
held:

"15.
If
the
landlord
tenant
relationship existed between the petitioners
and the opposite party No. 3 and it
continued even after the destruction of the
roofed structure as also if the tenancy did
not become automatically void on such
destruction,
then,
proceedings
under
Section 20 of the Act, 1972 would be
maintainable before the SCC Court.

16. The moot point is, did the
tenancy continue even after destruction of
roofed structure. The first and foremost
question, therefore, is whether the 'building'
which was the subject matter of tenancy
existed on the date of notice of eviction as
also initiation of proceedings under Section
20 of the Act, 1972 or not. Section 3(i) of
the Act, 1972 defines building as under:-

"3(i)
"Building",
means
a
residential
or
non-residential
roofed
structure and includes-

(i) any land (including any
garden),
garages
and
out-houses,
appurtenant to such building;

(ii) any furniture supplied by the
landlord for use in such building;

(ii) any fittings and fixtures affixed to such
building for the more beneficial enjoyment
thereof;"

17. Building as defined aforesaid
comprises of a roofed structure and
obviously land underneath or land which it
bounds with its walls. The inclusive part of
the definition relates to land appurtenant
and not underneath. It has been so held by
the Supreme Court in a decision of State of
U. P. and Ors. v. VIIth Additional District
Judge and Others, 1992 (4) SCC 429. The
relevant extract of this judgment, which
pertain to the Act, 1972, is quoted herein
below:-

"7. In any case, the definition of
'building' under the Act clearly shows that
the building thereunder means roofed
structure including the land underneath the
said structure. Inclusive part of the
definition
only
relates
to
the
land
7 All. Smt. Fatima Vs. Smt. Shahana & Ors.
1257
appurtenant to such building and not to the
land underneath the roofed structure."

18. Generally speaking also the
term 'building' includes the ground on which
it stands as has been held by the Supreme
Court in the case of D.G. Gose and Co. v.
State
of
Kerala
reported
in
MANU/SC/0330/1980 : (1980) 2 SCC 410,
wherein the term 'lands and buildings' was
under consideration in the context of Entry 49
of List II Schedule- VII of the Constitution.
Paragraphs 21, 22 and 23 of which read as
under:-

"21. The word "building" has been
defined in the Oxford English Dictionary as
follows:

That which is built; a structure,
edifice: now a structure of the nature of a
house built where it is to stand.

Entry 49 therefore includes the site
of the building as its component part. That, if
we may say so, inheres in the concept or the
ordinary
meaning
of
the
expression
"building".

22. A somewhat similar point arose
for consideration in Corporation of the City
of Victoria v. Bishop of Vancouver Island
with reference to the meaning of the word
"building" occurring in Section 197(1) of the
Statutes of British Columbia, 1914. It was
held that the word must receive its natural
and ordinary meaning as "including the fabric
of which it is composed, the ground upon
which its walls stand and the ground
embraced within those walls". That appears
to us to be the correct meaning of "building".

23. The Act contains its own
definition of what is meant by "building",
and Clause (e) of Section 2 is to the
following effect:

(e) "building" means a house,
outhouse, garage, or any other structure or
part thereof, whether of masonry, bricks,
wood, metal or other material, but does not
include any portable shelter or any shed
constructed principally of mud, bamboos,
leaves, grass or thatch or a latrine which is
not attached to the main structure.

There are two explanations to the
clause, but they are not relevant for the
controversy before us. The definition
therefore makes it quite clear that as a
house, outhouse, garage or any other
structure cannot be erected without the
ground on which it is to stand, the
expression "building" includes, the fabric
of which it is composed, the ground upon
which its walls stand and the ground
within those walls. It is equally clear that
the ground referred to above would not
have a separate existence, apart from the
building, and would not be "lands" jointly
stated with "buildings" as the subjectmatter of the tax in entry 49 of List II. In
other words, the "ground" referred to
above would not be the subject-matter of a
separate tax, apart from the tax on the
building standing on it."

19. The case of Corporation of
the City of Victoria v. Bishop of
Vancouver Island referred in the aforesaid
judgment is reported in AIR 1921 PC 240.
The same view has been taken by the
Kerala High Court in a judgment reported
in MANU/KE/0021/1995 : AIR 1995
Kerala 99; V. Kalpakam Amma v.
Muthurama Iyer and another case reported
in MANU/KE/0012/1991 : AIR 1991
Kerala 55; George J. Ovungal v. Peter.
1258 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In view of the above
discussion, it is not in dispute that 'building'
as defined in Section 3(i) of the Act, 1972
not only includes the structure constructed
over the land but also the land over which it
is constructed. It also includes the land
appurtenant to the structure."

10. The learned Counsel appearing for
the respondents emphasized that the
question here is not about seeking eviction
of the tenant, but abating a danger to
human life and property, which the
dilapidated building has become. The
demolition notice issued by the Nagar
Palika after due inspection, according to the
learned Counsel for the respondents, is
warrant enough to believe that the demised
shop is no longer fit for human habitation
or use.

11. At the hearing of this petition
before
this
Court,
there
was
much
contention between parties, if indeed the
demised shop was so dilapidated that it was
beyond repair. The said question is a pure
question of fact and the Prescribed
Authority having taken a plausible view of
the matter on facts and evidence to hold
that the demised shop is so dilapidated that
it is beyond repair and a danger to human
life, this Court need not examine the
question further. Considering, however, the
fact that it is the cynosure of all contentions
between parties, whether the demised shop
is indeed so dilapidated that it cannot be
repaired, this Court though it fit to issue a
commission to the learned Civil Judge (Sr.
Div.), Sitapur vide order dated 02.12.2021,
requiring him to ascertain whether the shop
in
dispute
is
dilapidated
beyond
redemption. It was also directed that the
learned Civil Judge would have the
assistance of a competent Civil Engineer
from the local establishment of the PWD at
Sitapur and the entire proceedings of the
commission would be photographed and
videographed.

12. The learned Civil Judge executed
our
commission
on
08.12.2021,
maintaining
an
order-sheet
of
the
proceedings from 04.12.2021 to 08.12.2021
very punctiliously. The commission too
was executed by the learned Civil Judge
(Sr. Div.), Sitapur, Mr. Pramod Singh
Yadav with great industry, care and ability.
He inspected the demised shop from within
and without as also from the roof top,
which appears from his report to have been
a considerably perilous venture. He had
with him an Executive Engineer from the
Public Works Department, Sitapur, besides
a photographer, who captured both stills
and videos of the demised shop and the
building of which it is a part. The
photographs are annexed as Annexures 10
to 20 to the learned Civil Judge's
commission report. There is a separate C.D.
also submitted, which gives a more 'live'
and 'realistic' picture of the condition that
the demised shop and the building housing
it is in. The relevant part of the commission
report submitted by the learned Civil Judge
must be quoted in some of its relevant
detail. It reads:

"िािग्रस्त िुिान िी ित िे दनरीक्षण िे उपराांत मेरे द्वारा
िुिान िे अांिर िी िीिार अक्षराांदित BC, CD तिा DG िा
दनरीक्षण िरने िा प्रयास दिया गया। दनरीक्षण िे िौरान यह पाया गया दि
िुिान िे अांिर िी िीिार अक्षराांदित BC, CD तिा DG सामने से
नहीं दिि रही िी बदल्ि उसिे दिनारे दिनारे लिडी ि लोहे िी रैि में
िुिान िा समान रिा िा। समान हटिा िर िेिने पर िीिार िा िुि अांश
(िुि ईांटें) दििाई दिया िो दबना प्लास्टर िा िा। वीडियो सी०िी०
संलग्नक सं० 22 में 15:00 डमनट से 15:12 डमनट तक दुकान
के अंदर से दीवार के अंश को डदखाया गया है। िािग्रस्त िुिान िे
ऊपर रोड िी तरफ़ नीले रांग िी प्लादस्टि िी पन्नी लगी िी दिसे
हटिािर िुिान िी िीिार अक्षराांदित AB िे ऊपर िी िीिार (दिसिे
बारे में श्रीमती फ़ादतमा िे दिद्वान अदधिक्ता द्वारा बताया गया दि उक्त
7 All. Smt. Fatima Vs. Smt. Shahana & Ors.
1259
िीिार िी मरम्मत िे दलए ही उनिे द्वारा न्यायालय में मुििमा दिया गया
है) िेिी गयी िो िुिान िे बाहर से िी दिि रही िी तिा िेिने से
अत्यांत िििर अिस्िा में िी तिा उसिे आधार पर यही दनष्िषि दनिल
रहा है दि िीिार अक्षराांदित BC, CD तिा DG िी िििर अिस्िा
में है। नक्शा िमीशन में िदशित िुिा AB िे ऊपर िी िीिार िो
फोटोग्राफ़ संलग्नक 13, 14, 15, 16 तथा 17 में अक्षर PQRS
से तिा टीन शेड िो अक्षर T से िदशित दिया गया है। अदधशासी
अदियांता पी०डब्लू०डी० सीतापुर द्वारा िी मेरे दनिेश पर िुिान िे अांिर
से िीिार अक्षराांदित BC िा दनरीक्षण दिया गया। अदधशासी अदियांता
पी०डब्लू०डी० सीतापुर द्वारा िी अपनी िाांचा आख्या प्रेदषत िी गयी है
िो संलग्नक सं09 िे रूप में सांलग्न है। िमीशन िायिाही िे िौरान
तैयार स्पॉट मेमो, नक्शा िमीशन, अदधशासी अदियांता पी०डब्लू०डी०
सीतापुर िी िाांच आख्या मय पत्र, फोटोग्राफ़ (िुल 12) तिा िीदडयो
ररिॉदडिंग िी सी०डी० और दि० 04/12/2021 िो िमीशन िे समय
तैयार स्पॉट मेमो, डिसकी मूल प्रडत माननीय न्यायालय को प्रेडित
की िा चुकी है, माननीय उच्च न्यायालय के आदेश डद०
02/12/2021 मय ई-मेल पत्र की प्रडत, कम्प्यूटर डवभाग िनपद
न्यायालय सीतापुर से प्राप्त माननीय उच्च न्यायालय के आदेश
डद० 07/12/2021 की प्रमाडित प्रडत तथा अडिशासी अडभयंता
पी०िब्लू०िी० सीतापुर का पत्र डद० 08/12/2021 की प्रडत
कमीशन आख्या का भाग हैं।

समग्र रूप से िािग्रस्त िुिान िा दनरीक्षण िरने पर
अधोहस्ताक्षरी द्वारा यह पाया गया दि िािग्रस्त िुिान दबना पक्िी
ित िे है और अत्यांत िििर अिस्िा में है दिसपर टीन शेड पडा है
तिा उसिे ऊपर ईांट िा मलबा पडा है और िांगली पेड िी डाल
और बेल पडी है। िािग्रस्त ििान िी ित िो टीन शेड से सहारा
दिया गया है। नक्शा िमीशन में िदशित िािग्रस्त िुिान िी िीिार
अक्षराांदित BC, CD तिा DG सामने से नहीं दिि रही िी।
उसिो लोहे और लिडी िी रैि से घेरा गया है। िािग्रस्त िुिान िी
िीिार अक्षराांदित AB िे ऊपर िी िीिार दिि रही िी िो अत्यांत
िििर अिस्िा में है तिा उसिे आधार पर यही दनष्िषि दनिल रहा
है दि िीिार अक्षराांदित BC, CD तिा DG िी िििर अिस्िा
में है तिा पूरी िुिान िो टीन एिां लोहे तिा लिडी िे फ्रेम िा
सपोटि िेिर चलाया िा रहा है। अडिशासी अडभयंता पीिब्लूिी०
सीतापुर की िांच आख्या मय पत्र संलग्रक सं० 9 के अनुसार
"डिस डिड्िंग में यह दुकान है वह पूिणतः िीिणशीिण अवस्था
में है एवं पूरी डिड्िंग एवं दुकान के ऊपर कोई पक्की छत
नहीं है। दुकान टीन के फ्रेम में चलाई िा रही है। अतः यह
डिड्िंग पूरी तरह ध्वस्त करने योग्य है अन्यथा की डस्थडत में
दुर्णटना एवं िानमाल का खतरा भी पह ंच सकता है।"
अधोहस्ताक्षरी िािग्रस्त िुिान िे िििर अिस्िा में होने िे बाबत
अदधशासी अदियांता िी उक्त आख्या से पूणितया सहमत है तिा
िमीशन िायिाही िे िौरान दिए गए दनरीक्षण िे आधार पर
अिोहस्ताक्षरी का यह डनष्किण है डक वादग्रस्त दुकान ििणर
अवस्था में है तथा अग्रेतर यह इतनी ििणर अवस्था में है डक
यह मानव िीवन तथा िानमाल के डलए खतरनाक है।"

13. The above report does not spare a
grain of doubt that the demised shop is a
public nuisance and a serious hazard to
human life and property in its vicinity. It is
already under a statutory demolition notice
issued by the Nagar Palika. It has been
spared demolition because of the interim
order passed by this Court. After looking
into the report of the commission and the
photographs,
this
Court
is,
indeed,
surprised that the tenant seeks to prevent,
by asking for repairs of the said shop,
demolition of a building that may imperil
her own life or those of her family
members. This Court finds the stand of the
tenant very unreasonable and very unfair.
There is absolutely nothing to suggest that
the
landlady's
stand
in
the
present
proceedings is one to secure the tenant's
eviction. The state and condition of the
demised shop is abominable and a towering
threat to one and all in the vicinity. The
Nagar Palika ought to take immediate steps
to carry out its statutory duty in the larger
public interest and raise down the demised
shop, including the entire dilapidated
structure of which it is a part. Of course,
demolition has to be carried out, if it has to
be done by the Nagar Palika, strictly in
accordance with law and after hearing
affected parties, but at the same time, not
stretching the processes to an extent that
the mischief, that is sought to be remedied,
comes true.

14. In view of what has been said
hereinabove, this Court does not find any
merit in this petition. It is dismissed with
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
costs in the sum of Rs.25,000/- payable by
the tenant to the first respondent-landlady.
The interim order dated 28.08.2018 is
hereby vacated.

15 . Let a copy of this order be
communicated to the Judge, Small Cause
Court, Sitapur and the Executive Officer,
Nagar Palika Parishad, Sitapur by the
Senior Registrar.
----------
(2022)07ILR A1260
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.07.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 2702 of 2008
with
Criminal Appeal No. 2786 of 2008

Smt. Reena Srivastava ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Indu Prakash Singh

Counsel for the Respondent:
Sri Chandra Shekhar Pandey, Government
Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 302/34, The Code of
Criminal procedure, 1973 - Section 313 -
Appeal against conviction - Murder -
Indian Evidence Act, 1872 - Section
25,26,27
-
difference
between
''interested' and ''related' - "Related" is
not equivalent to "interested" witnesses
- a related witness cannot be said to be
an ''interested' witness merely by virtue
of being a relative of the victim -
testimony of the related witness cannot
be discarded only for the reason that
they are relatives of the deceased .
(Para - 25,26,27)

Incident occurred inside bed-room where
husband and wife went to sleep - husband
found murdered - Accused had illicit relations
with another accused (wife of the deceased)
- complainant, deceased and their younger
brother all went to sleep in their rooms after
having meals - rest of the family members
went to sleep on the roof along with their
mother - evidence corroborated by the
recovery of the knife used in the crime and
the
vest
(Baniyan)
of
the
accused
-
witnesses of facts - family members of
deceased - denied the fact of any kind of
bickering or dispute between two brothers --
Some unknown person killed in the night -
motive was proved - motive was that both
convict/appellants had illicit relations with
each other - All the links of chain of
circumstances proved - trial Court held --
convict/appellant killed deceased by knife in
furtherance of common intention - sentenced
them with sentences - aggrieved - hence
Two appeals preferred.
 (Para - 2,3,8,11,13,28)

HELD:- Prosecution has proved its case
beyond reasonable doubt. The murder of the
deceased
was
committed
by
the
convict/appellant in connivance with another
convict/appellant in furtherance of a common
intention. Trial Court rightly held the accused
persons guilty and sentenced them with
imprisonment for life and fine. Conviction
order upheld. (Para - 28)

Criminal appeals dismissed. (E-7)

List of Cases cited:-

1. Kishore Bhadke Vs St. of Mah. , (2017) 3
SCC 760

2. Mehboob Ali & anr. Vs St. of Raj. , (2016) 14
SCC 640

3. St. (NCT of Delhi) Vs Navjot Sandhu @ Afsan
, Guru , (2005) 11 SCC 600

4. Pulukuri Kottaya & ors. Vs Emperor , AIR
1947 PC 67