# Smt. Sarwari Begum v. VII Additiona District Judge and others - **Citation:** (2004) 2 ILRA 498 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2004-04-23 - **Case number:** Writ Petition No.1358 of 1984 - **Bench:** Tarun Agarwala - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sarwari-begum-v-vii-additiona-district-judge-and-others-40410 - **Pages:** 4 ## Headnote letting, Rent and Eviction) Act, 1972- S. 21(1) (a)- Release application by landlady for her own and her son's residence after making additional constructions- the need of land lady, held, bonafide and genuine- Petitioners could not be saddled to live in one room of which she is not full owner- She is entitled to stay in premises in which she is admittedly sole owner- Thus plaintiff, held entitled to relief claimed in her http://www.allahabadhighcourt.nic.in 2 All] Smt. Sarwari Begum V. VII Additiona District Judge and others 499 release application- petitioner will suffer greater hardship, if her release application is rejected. The petitioner has contended that if the accommodation is released, she will make additional constructions to meet the need of her family requirement. In my view the need of the petitioner is bonafide and genuine. The petitioner could not be saddled to live in one room of which she is not the full owner. The petitioner has only 1/9th share in an accommodation comprising of two rooms. Therefore, even though she is occupying one room, she is not the full owner of that one room. The petitioner cannot be forced to stay in an accommodation in which she is not the full owner. She is entitled to stay in the premises in which she is admittedly the sole owner of that premises. Thus the petitioner is entitled to the relief claimed in her release application. Para 10 On the question of hardship, I find that the petitioner shall suffer greater hardship in the event the release application is rejected. The tenant can always shift to another accommodation. It is not expected that the petitioner being a landlady and owner of the premises in question, herself takes on rent another accommodation in order to meet the need of her growing family. Para 11 ## Text http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2004 498 the spot. In his own words "NIYALAYA ME UPLABDH BAG KO DHEKHKAR GAWAHN NE BATAYA KI MAI NAHI BATA SAKTA HOO KI YAH BAG MAUKE PAR BARAMAD HOOYA THA YA NAHI". Constable Shanker Prasad gave out that except Charas and bag nothing was recovered from the possession of the appellants. This statement of the witness does not inspire confidence. The appellants were coming from Nepal and were going to Nichlaul. They must be having some money in their pockets to meet the necessary expenses. 16. I further find that no link evidence was produced by the prosecution to show that the samples taken out by the arresting officer were actually sent to the Forensic Science Laboratory and the same samples were actually examined. 17. The prosecution has further failed to explain as to why the investigating officer was not examined in the trial court. 18. The prosecution produced two public witnesses Ram Prasad and Ishaque and both stated categorically that no Charas was recovered from the possession of the appellants in their presence nor they were arrested. They turned hostile. In cross-examination by the State Counsel they asserted that their signatures were obtained on blank papers. Thus, there is no evidence of independent public witnesses to support the prosecution story. 19. In view of the infirmities and discrepancies in prosecution case/evidence on record, I hold that the learned trial court committed error in appraisal of the evidence on record as well as in the application of relevant law. Consequently, I hold that the conviction of the appellants is not sustainable and is liable to be set aside. 20. In the result, the appeal is allowed and the conviction and sentence passed by the trial court against the appellants are set aside and they are acquitted. The appellant no 1 is on bail. His bail bonds are cancelled and sureties are discharged. The appellant no.2 is in jail. He will be reliesed forthwith if his not wanted in any other crime. Appeal Allowed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 23.4.2004 BEFORE THE HON'BLE TARUN AGARWALA, J. Writ Petition No.1358 of 1984 Smt. Sarwari Begum ...Petitioner Versus VII Additional District Judge and others ...Respondents Counsel for the Petitioner: Sri Navin Sinha Sri Ashish Srivastava Counsel for the Respondents: Sri Chandjra Prakash S.C. U.P. Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972- S. 21(1) (a)- Release application by landlady for her own and her son's residence after making additional constructions- the need of land lady, held, bonafide and genuine- Petitioners could not be saddled to live in one room of which she is not full owner- She is entitled to stay in premises in which she is admittedly sole owner- Thus plaintiff, held entitled to relief claimed in her http://www.allahabadhighcourt.nic.in 2 All] Smt. Sarwari Begum V. VII Additiona District Judge and others 499 release application- petitioner will suffer greater hardship, if her release application is rejected. The petitioner has contended that if the accommodation is released, she will make additional constructions to meet the need of her family requirement. In my view the need of the petitioner is bonafide and genuine. The petitioner could not be saddled to live in one room of which she is not the full owner. The petitioner has only 1/9th share in an accommodation comprising of two rooms. Therefore, even though she is occupying one room, she is not the full owner of that one room. The petitioner cannot be forced to stay in an accommodation in which she is not the full owner. She is entitled to stay in the premises in which she is admittedly the sole owner of that premises. Thus the petitioner is entitled to the relief claimed in her release application. Para 10 On the question of hardship, I find that the petitioner shall suffer greater hardship in the event the release application is rejected. The tenant can always shift to another accommodation. It is not expected that the petitioner being a landlady and owner of the premises in question, herself takes on rent another accommodation in order to meet the need of her growing family. Para 11 (Delivered by Hon'ble Tarun Agarwala, J.) 1. The petitioner is the landlady and owner of the premises in question which consist of a room, a varandah and an open space. Respondent No. 3 is the tenant in the premises in question. The petitioner moved an application under Section 21(1) (a) of the U.P. Act No.13 of 1972 for the release of the accommodation in question on the ground that the premises in question was required for the purpose of residence for herself and for her sons who are members of her family. The petitioner alleged that she was presently residing in the house of her brother as a licensee in a single room on the ground floor and that her brother was residing on the first floor, which also consisted of one room. The family of the petitioner's brother comprises of his wife and three sons. The family of the petitioner's brother was growing and he was having difficulty to adjust his family in one room. On the other hand the petitioner alleged that she also has 3 sons, two of them are married and the third son is still studying in college. The petitioner contended that she was finding it difficult to accommodate her family in the present accommodation and if the premises in question is released she could accommodate her family after making necessary constructions. 2. The tenant contested the application for release mainly on the ground that the petitioner is the owner of the single room where she is residing at the present moment and that her brother was not the exclusive owner of the said house. It was alleged that the petitioner was living on the ground floor as owner and not as a licensee. 3. In support of her contention, the petitioner filed the affidavits of her brothers, namely Qadir Ahmad and Sharif Ahmad stating therein that Sharif Ahmad is the owner of the premises in which the petitioner was residing and that the petitioner had relinquished her share in it. 4. The prescribed authority allowed the release application and held that the need of the petitioner was bonafide and genuine and that the need of the petitioner was greater than that of the tenant. The prescribed authority found that the petitioner had relinquished her share in http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2004 500 the premises in question and that her brother, Sharif Ahmad was the sole owner of the premises. The prescribed authority further held that the petitioner was residing in that premises as a licensee. 5. Aggrieved by the order of the prescribed authority, the tenant filed an appeal before the District Judge under Section 22 of the Act. The Additional District Judge allowed the appeal and the order of the prescribed authority was set aside. The appellate court found that the petitioner did not relinquish her share in the premises in which she was residing and that she was a co-owner and therefore the need of the petitioner was not bonafide. 6. Heard Sri Ashish Srivastava, the learned counsel holding the brief of Sri Navin Sinha, Senior Advocate. No one appears on behalf of the respondents. 7. In my view the approach adopted by the appellate court was not correct. The appellate court had presumed that the bonafide need of the petitioner did not exist merely on the ground that she was a co owner having 1/9th share in the premises in which she was residing. Assuming that the petitioner was a co owner of the premises in which she was residing, the appellate court ought to have considered whether the premises in which she was residing was sufficient for her need and for her family members. The appellate court should have considered as to whether the petitioner required additional accommodation. 8. Without going into the question as to whether the appellate court was right in holding that the petitioner did not relinquish her share in the premises in which she was residing, this court is proceeding with the assumption that the petitioner is a co owner to the extent of 1/9 share in the premises in which she is presently residing. 9. The question that arises is whether 1/9th share in the premises was sufficient for the petitioner's need and for her family members. At the present moment the petitioner and her son are living in one room. Two of her sons are already married and living elsewhere. They need to visit their mother from time to time. 10. The petitioner has contended that if the accommodation is released, she will make additional constructions to meet the need of her family requirement. In my view the need of the petitioner is bonafide and genuine. The petitioner could not be saddled to live in one room of which she is not the full owner. The petitioner has only 1/9th share in an accommodation comprising of two rooms. Therefore, even though she is occupying one room, she is not the full owner of that one room. The petitioner cannot be forced to stay in an accommodation in which she is not the full owner. She is entitled to stay in the premises in which she is admittedly the sole owner of that premises. Thus the petitioner is entitled to the relief claimed in her release application. 11. On the question of hardship, I find that the petitioner shall suffer greater hardship in the event the release application is rejected. The tenant can always shift to another accommodation. It is not expected that the petitioner being a landlady and owner of the premises in question, herself takes on rent another http://www.allahabadhighcourt.nic.in 2 All] M/s Nadeem Apartment Private Ltd. and another V. State of U.P. and others 501 accommodation in order to meet the need of her growing family. 12. In the result, the writ petition succeeds and is allowed. The order of the appellate court dated 20.10.1983 is quashed and the order of the prescribed authority dated 21.8.1981 is restored. In the circumstances of the case there shall be no order as to cost. Petition allowed. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 15.4.2004 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE R.S.TRIPATHI, J. First Appeal No. 319 of 1997 M/s Nadeem Apartment Private Ltd. and another ...Appellants Versus State of U.P. and others ...Respondent Counsel for the Appellants: Sri Shashi Nandan Sri G.N. Verma Sri S.A. Gilani Sri W.H. Khan Sri J.H. Khan Sri Arun Kumar Sri B.A. Khan Counsel for the Respondents: Sri Ravi Sinha Sri U.N. Sharma Sri Nitin Sharma, Sri M.A. Zaidi, S.C. Sri P.K. Jain Sri A.K. Gupta, Sri A.K. Gaur Code of Civil Procedure, 1908- 0.39 R. (2) proviso (as amended by U.P. Act 57 of 1976)-Permanent injunction- Grant of under said proviso no injunction shall be granted to stay proceedings for recovery of any dues recoverable as arrears of land revenue unless adequate- Relief of permanent injunction-sought without complying with said provision- Hence civil court has no jurisdiction to grant such relief. In this connection when we go through the provisions of the Civil Procedure Code we find that in the State of U.P. in Rule 2 (2) of Order 39 the following provision has been added by U.P. Act no. 57 of 1976:- "provided that no such injunction shall be granted ...(g) to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished. Para 19 In the instant case there is absolutely no material to show that any security was furnished by the appellants in connection with the recovery certificate which was issued by the Uttar Pradesh Financial Corporation against them. The noncompliance of above provision coupled with the fact that the adjustment of Rs. 17,68,450.00 claimed by the appellants is without any payment of any Court fee, in the suit for the relief leave no doubt that the civil court has no jurisdiction unless there is compliance of the provisions of the Civil Procedure Code. The relief of permanent injunction has been sought without complying with this provision. In view of this we are of the view that the Civil Court has no jurisdiction to grant such relief. The result of the above discussion is that this appeal has no force. Accordingly, it is dismissed. Para 20 Case law discussed: 1977 AWC 115(FB) 1972 ALJ 861 JT 1994 (2) SC 604 (2004) 2 SCC 283 (Delivered by Hon'ble M. Katju, J.) 1. This appeal has been filed against a judgment and decree dated 14.8.1997 passed by Ist Additional Civil Judge (Sr.