Vinay Kumar Gupta Vs.
Gomti Devi and Ors. [2008] INSC 1876 (5 November 2008)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO. 6690 OF 2005 Vinay Kumar Gupta .. Appellant(s)
Versus Gomti Devi and Ors. .. Respondent(s) ORDER
1.
The
appellant-landlord has questioned the legality of the order passed by the High
Court of Judicature at Allahabad dated July 30, 2003 passed in Civil Misc. Writ
Petition No. 31938 of 2002. By the said order, the High Court affirmed the
finding of fact recorded by the Court of prescribed authority and confirmed by
the appellate authority recording bona fide requirement of the landlord for
getting possession of the suit premises from the respondent-tenants under
Section 21 of the Utter Pradesh Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (for short, the Act).
2.
The
High Court, however, observed in the impugned judgment that during the pendency
of proceedings before the appellate forum, the landlord had made an offer to
grant alternative accommodation to the tenants of which the landlord has got
possession in pursuance of a decree passed in another suit. The High Court
observed that the learned counsel for the tenants fairly accepted that such a
relief ..2/- C.A. No. 6690/2005..contd.. may be granted in favour of the
tenants and, accordingly, an order was passed directing the appellant-landlord
to make available to the tenants, the alternative accommodation in respect of
which he has obtained a decree of possession from another tenant.
3.
The
case of the appellant is that he is the landlord. He required suit premises for
his bona fide requirement and hence he initiated the proceedings under Section
21 (1) of the Act. The prescribed authority considered the case of the landlord
as also the defence put forward by the defendant-tenants and held that on the
facts and in the circumstances, it was proved by the landlord that he required
the premises for his bona fide use. Accordingly, an order of eviction was
passed against the tenants and in favour of the landlord.
4.
Being
aggrieved by the said order, the tenants preferred an appeal under Section 22
of the Act. The appellate authority confirmed the finding recorded by the trial
Court and order was affirmed.
5.
Looking
to the relevant provisions of the Act, there is no doubt that there is no
further remedy so far as the Act is concerned. In view of the said fact, the
respondent-tenants approached the High Court by filing a writ petition.
..3/- C.A. No.
6690/2005..contd..
The High Court
observed that both the authorities have held in favour of the landlord with
regard to bona fide requirement and there was no infirmity in the said finding.
6.
The
High Court, however, observed as under:
" In the
judgment of the appellant court typed of which is annexure 7 to the writ
petition, from page 93 to 130, it is mentioned at page 111 that landlord
offered an alternative accommodation to the tenant of which the landlord had
got possession in pursuance of decree passed in SCC Suit No. 18 of 1994, which
was a suit filed by him against another tenant Laxmi Kant. During the argument,
learned counsel for the petitioner was asked by the court as to whether his
client would be ready to take the said house on rent in case court did not find
any error in the judgment passed by the courts below or not. Learned counsel
for the tenant petitioner very fairly stated that in case his argument on merit
did not find favour with the court the alternative accommodation offered by the
land lord might be given to the tenant-petitioner."
7.
Keeping
in view the above fact, the following direction was issued by the High Court:
"Accordingly,
while dismissing the writ petition, I direct that the accommodation offered by
the landlord mentioned in the judgment of the lower appellate court (with regard
to which landlord filed SCC Suit No. 18 of 1994 against the other tenant Laxmi
Kant) should be given to the tenant on rent in exchange of accommodation in
dispute on the same rate of rent at which the present accommodation is in
tenancy of the tenant petitioner. Prescribed Authority is directed to implement
the exchange, which must be simultaneous i.e. both the parties shall get
possession on the ..4/- C.A. No. 6690/2005..contd.. same date. If needed be an
Advocate Commissioner may be appointed to affect the change of the possession.
Both the parties shall bear expenses of the Advocate Commissioner in equal
share.
However, the
Prescribed Authority is at a liberty to adopt such mode for affecting the
transfer, as it considers appropriate including police force if necessary. Both
parties must appear before the Prescribed Authority on 18.8.2003 with the
certified copy of this judgment. The petitioner shall not be evicted till the
exchange."
8.
The
above direction of the High Court is challenged by the landlord in the present appeal.
Notice was issued by
this Court on October 06, 2003 and status quo was ordered to be maintained
until further orders. Leave was thereafter granted and hearing was ordered to
be expedited. Today the matter has been placed for final hearing.
9.
It
may be stated that during the pendency of the proceedings in this Court, the
appellant died and his heirs and legal representatives have been brought on
record.
10.
10
We have heard learned counsel for the parties.
11.
Learned
counsel for the appellant-landlord contended that the High Court has committed
an error of law and of jurisdiction in issuing direction to the landlord to
make available alternative accommodation which he had obtained by getting a
decree from another tenant. It was stated that even if the High Court felt that
such an offer was made ..5/- C.A. No. 6690/2005..contd.. before the appellate
authority without observing anything as to what had happened to that offer and
whether the landlord was still willing to continue to make the said offer in
favour of the tenants, no direct order could have been passed by the High
Court. To that extent, therefore, the order passed by the High Court deserves
to be set aside.
12.
Learned
counsel for the respondent-tenants, on the other hand, submitted that the High
Court considered the fact that such an offer was made by the landlord before
the appellate authority. If that fact was taken into account by the High Court
and a direction was issued, it cannot be said that no such order could have
been passed by the Court. In any case, under Article 136 of the Constitution,
this Court may not interfere with such direction. Alternatively, the learned
counsel submitted that if this Court feels that no such order could have been
passed by the High Court, the impugned order may be set aside by remitting the
matter to the High Court for fresh disposal in accordance with law.
13.
Having
heard learned counsel for the parties, in our opinion, the appeal deserves to
be allowed. So far as bona fide requirement of the landlord is concerned, the
prescribed authority recorded a finding of fact in favour of the ..6/- C.A. No.
6690/2005..contd.. landlord. The said finding was confirmed by the appellate
authority. In the circumstances, even otherwise, in our opinion, the High Court
could not have interfered with the finding of fact recorded by the prescribed
authority and confirmed by the appellate authority in exercise of power of
superintendence.
14.
The
question then only remains with regard to the direction of the High Court to make
alternative accommodation available to the respondent-tenants. Even if it is
true that such an offer was made by the landlord when the appeal was pending
before the appellate authority, the High Court without recording a finding
against the landlord or without confirming whether landlord still wanted to
abide by the said offer, could not have issued a direction to the landlord to
give alternative accommodation to the tenants. On that ground alone, the order
of the High Court deserves to be interfered with to that extent and the appeal
filed by the appellant must succeed. In view of finding of fact by all Courts,
in our opinion, the case need not be remanded to the High Court for
consideration.
15.
For
the foregoing reasons, the appeal is partly allowed. The finding as to bona
fide requirement of the landlord recorded in favour of the appellant-landlord
..7/- C.A. No. 6690/2005..contd.. deserves no interference. The direction to
the appellant-landlord that he will give possession of alternative accommodation
to the tenants in respect of which he had obtained possession from another
tenant cannot be said to be legal or lawful and is, therefore, set aside.
16.
The
appeal is partly allowed to the above extent with no order as to costs.
17.
At
this stage, learned counsel for respondent-tenants stated that the premises in
question is residential accommodation and if decree will be executed
immediately, serious prejudice will be caused to the tenants. Learned counsel,
therefore, prays for one year's time to vacate the premises. Learned counsel
for the landlord, however, submitted that the proceedings are of 1992 and the
order was passed in favour of the landlord believing bona fide requirement of
the landlord. He submitted that at the most six months' time may be granted.
18.
In
our opinion, ends of justice would be met if we grant time to the
respondent-tenants till August 31, 2009 to vacate the premises subject to
filing usual
Under taking ..8/-
C.A. No. 6690/2005..contd.. with in four weeks from today. A copy of such
undertaking will be given to the learned counsel for the appellant landlord.
19.
Ordered
accordingly.
....................J
[ C.K. THAKKER ]
....................J
[ AFTAB ALAM ]
NEW
DELHI,
NOVEMBER
05, 2008.
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