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2016 Supreme(All) 3348
ALLAHABAD HIGH COURT
Sunita Agarwal, J.
Kusum Kushwaha & Another - Appellant
Versus
Rakesh Kumar Kohli & Another - Respondent
Writ-A No. 41629 of 2009
Decided On : 21-01-2016
For the Petitioners:- R.U. Ansari, Advocate.
For the Respondents:- Suresh Chandra Dwivedi, Advocate.
The central legal point established in the judgment is the genuine need for the shop by the applicant-landlord and his daughters, considering their financial constraints and lack of other sources of income.
Headnote:
Release Application - Shop Ownership - Section 21(1)(a) - [Section 21(1)(a)] - The court discussed the need for the shop in question for the applicant-landlord and his daughters, the financial constraints faced by the daughters, and the sale of another shop due to financial crisis. The court emphasized the genuine need of the daughters and the financial hardships faced by them, ultimately setting aside the judgment of the lower Appellate Court.
Fact of the Case:
The release application was filed by the applicant-landlord and his daughters, asserting their need for the shop in question for starting a business and livelihood.
Finding of the Court:
The court found that the need of the daughters for the shop in question was genuine, considering their financial constraints and lack of other sources of income.
Issues: The main issues revolved around the genuine need for the shop by the applicant-landlord and his daughters, the financial constraints faced by the daughters, and the sale of another shop due to financial crisis.
Ratio Decidendi: The court emphasized the genuine need of the daughters and the financial hardships faced by them, ultimately setting aside the judgment of the lower Appellate Court.
Final Decision: The writ petition was allowed, directing the respondents to vacate the shop in question within a specified time and to pay the current rent regularly to the petitioners.
Sunita Agarwal, J. –
Supplementary Rejoinder Affidavit filed today be taken on record.
2. The petitioners are owners and landlady of the shop in question which exists at the ground floor of the House No.53-A/1, Meerapur, Allahabad. The release application was filed under Section 21(1)(a) by Nanku Lal Kushwaha in the year 1994 with the assertion that he and his daughters who were living with him required the shop in question to start a business.
3. An affidavit was filed by Nanku Lal Kushwaha, the applicant landlord in support of his assertion that he required the shop for his business.
4. A written statement was filed on 02.02.1996, the need of Nanku Lal Kushwaha, the applicant-landlord was contested on the ground that another shop in the same house was vacant but was given on rent to one Preetam Gupta, @ Rs. 450/- on 12.05.1994. In case the applicant wanted to start his business, he could have used that shop which was in his vacant possession. The need of the applicant-landlord, therefore, was not bona fide but a mere desire to evict the tenant.
5. It appears that during the pendency of the release, the applicant-landlord died and his two daughters filed affidavits before the Prescribed Authority that they needed the shop in question. In one of the affidavit filed by Smt. Kusum Kushwaha @ Guddi, elder daughter of the landlord, she stated that she wanted to start a business to meet out her daily expenses and to look after his parents. She had no other source of income. In a joint affidavit of two daughters namely Smt. Kusum Kushwaha and Smt. Manju filed on 28.5.2002, it was stated that both the daughters were living in the house in question since the lifetime of their father. They wanted to start their business in the shop in question. The release application was decided by the Prescribed Authority on 30.4.2008 and the need of both the daughters of the applicant-landlord was found to be genuine.
6. So far as the shop which was given on rent to Sri Preetam Gupta, is concerned, it was found that this fact would not make any difference as the shop was given on rent by father prior to filing of the release, it would not frustrate the need of the daughters who had filed their affidavits. The landlord was hard pressed as he had no other source of income apart from rental income.
7. The daughters also had to sell a portion of their house under financial constraint. While considering the need of elder daughter and the widow, the wife of the landlord, it was held that they had no other source of income, only a sum of Rs. 16,00/- could be earned by them towards rental income. The objection of the tenant that the daughters do not come within a family was rejected on the ground that there was no dispute about the fact that the elder daughter was deserted by her husband and was living with her parents.
8. On comparative hardship, it was found that a specific stand was taken by the landlady that the shop in question has been handed over to one Ramveer and the tenant himself was not doing business in the shop in question as he was employed in ITI Naini, Allahabad.
9. The contention of the tenant is that the shop was being run by his wife was considered and it was found that the tenant could not deny the specific assertion that the business was being run by another person, Ramveer, by leading cogent evidence. This apart, it was found that no effort was made by the tenant to get another shop.
10. The Appellate Court on the other hand, has rejected the release on the ground that the applicant-landlord did not require the shop in question. In case, he needed the shop for his business, he would not have given other vacant shop on rent to another tenant on 12.05.1994, barely five months prior to the filing of the release. This shows that after eviction of the sitting tenant, he would again let out this shop.
11. So far as the need of the daughters is concerned, it has not been considered by the Appellate Court at all. The affidavits filed by the daug
