HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.3555 of 2001 (M/S) {Old No.27959 of 1998} Ram Chandra Agrawal S/o Sri Ruliyaram … Petitioner Versus The Addl. District Judge and others …. Respondents Dated:- 19th July, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Sidhartha Singh, the learned counsel for the petitioner and Mr. Tapan Singh, the learned counsel holding the brief of Mr. Lok Pal Singh, the learned counsel for the respondent no.3. 2. In 1993, to be more precise, on 17th January, 1993, a notice was issued on behalf of Jagdish @ Jagrup Verma respondent no.3 to the petitioner intimating him that he should vacate the premises in question as the said premises was required by the landlord for his own use. The said notice was received and, in response thereto, a reply was issued admitting his tenancy and further admitting that respondent no.3 was the landlord. Subsequently, in the year 1993, an application under Section 21(1)(a) of the U.P. Act No.13 of 1972 was filed. The respondent no.3 contended that he is the landlord and has a family of six persons i.e., his wife, three children and mother and, that he requires the accommodation in order to start a business so that he could support his family. In the application, it was categorically stated that he has no other premises where he could start the business. 3. The petitioner resisted the application and submitted that there was no bonafide need of the landlord and that he does not require the premises in question for his business purpose. Further, the petitioner contended that he had been a tenant since 1952 and that it will cause a lot of hardship to him, if he was required to vacate the premises at this stage. The petitioner further raised a dispute with regard to the ownership of the premises in question and contended that the respondent no.3 was not sole owner and that he was only a co-owner alongwith others. It was contended that the property was initially was let out by Smt. Budhan W/o Dukhi Ram who had two sons, namely, Mangat Ram and Chunni Lal and that the rent was being paid to Mangat Ram since Chunni Lal was a minor. The present application had been filed by Jagdish alias Jagrup Verma S/o Chunni Lal, whereas the heirs of Mangat Ram had not been brought on record. The petitioner tenant submitted that the application was not maintainable at the instance of Jagdish alias Jagrup Verma and that all the co-owners of the property were required to file a petition jointly. 4. On the basis of the pleadings, the prescribed authority, by an order dated 29.11.1994, rejected the application relying upon paper No.27(k) and construing this document as the landlord having let out only the land to the petitioner. The prescribed authority held that in view of Section 29-A of the U.P. Act No.13 of 1972, letting out of a land was not covered under U.P. Act No.13 of 1972 and, on this short ground, rejected the application. 5. The landlord, being aggrieved, filed an appeal which was allowed by an order dated 20th April, 1995 directing the prescribed authority to reconsider the matter in the light of the observation made therein. The appellate court held that the tenant had not taken any ground under Section 29-A of the Act and had nowhere stated that only the land was let out to him and that no building was let out. The appellate court further held that in the absence of any pleadings being raised by the tenant, the prescribed authority could not have taken up this plea without affording any opportunity to the parties. The appellate court further held that the prescribed authority had misread the document 27(k) and that the said document was not an agreement, but, an undertaking given by the tenant to vacate the premises as and when the 3 landlord Chunni Lal required. This document also indicates that not only the land, but also a shop was let out. 6. Upon remand, the prescribed authority passed an order dated 25th May, 1995 holding that the landlord had a bonafide need to start his business in the premises in question and that the need of the landlord was genuine and imminent. The prescribed authority, accordingly, allowed the application and released the premises in question. 7. The tenant, being aggrieved, preferred an appeal and during the pendency of the appeal filed an application for amendment of his written statement. In the amendment application, the tenant sought to incorporate the plea of Section 29-A of the Act, namely, that no building was let out to him and that only a piece of land was let out to him in which he had made the constructions with the consent of the landlord. This amendment application was rejected by the lower appellate court by an order dated 17th March, 1998. Thereafter, the appeal was heard and was dismissed by an order dated 27th May, 1998. The appellate court affirmed the order of the prescribed authority holding that the landlord had proved the bonafide need and that the application was rightly filed by the landlord for the release of the premises. The tenant, being aggrieved by the said order of the appellate court, has filed the present writ petition. 8. The learned counsel for the petitioner made two submissions, namely, that the lower appellate court had committed a manifest error in rejecting the amendment application and since a point of law was raised, a liberal approach should have been adopted by the appellate court and should have allowed the petitioner to incorporate the amendment in the written statement on payment of cost, etc. The learned counsel for the petitioner submitted that had this amendment being allowed, the petitioner would have proved that only a piece of land was let out and that no building was ever let out to him and, 4 consequently, the application of the landlord on this very short ground would have been rejected. The learned counsel submitted that the application of the landlord for the release of the premises was not maintainable at the instance of respondent no.3 Jagdish alias Jagrup Verma as he was not the sole owner of the premises in question and that he was only a co-owner and that all the co-owners of the premises in question were required to sign the plaint jointly and in the absence of the co-owners having not filed the application jointly under Section 21(1)(a) of the Act, the application filed only at the instance of one of the co-owners was not maintainable. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Allahabad High Court in Devi Charan Vs. Third Addl. District Judge, Muzaffarnagar & others 1980 Allahabad Rent Cases 381. 9. Having heard the learned counsel for the parties, the court finds that the plea taken by the petitioner for amendment of his written statement was rightly rejected by the appellate court on the ground of delay. Quite apart from the aforesaid, the court finds that the plea taken by the petitioner in its amendment application was an afterthought and that a plea, which was never taken by the petitioner in the first instance, was raised unnecessary by the prescribed authority on the basis of which the petitioner, consequently, filed this application raising a new ground altogether. The amendment application was belated and an afterthought and the purpose of filing the said amendment application was basically to delay the proceedings on one ground or the other and the sole consideration was based upon the document 27(k) which the lower appellate court had already given a finding that it was only an undertaking given by the petitioner that he would vacate the shop etc. and handover possession to Chunni Lal. The lower appellate court, after perusing the said document, also came to the conclusion that the land alone was not let out to the petitioner but also the shop. This finding has become final interse between the parties, which has not been questioned in this writ jurisdiction. Even otherwise, a finding which is based on appreciation of evidence and which is not perverse cannot be questioned or re-adjudicated in a writ jurisdiction. 10. In the light of the aforesaid, after accepting the finding of the lower appellate court, it was no longer open to the petitioner to file the amendment application and such amendment application was clearly in the nature of dilatory tactics adopted by the petitioner. The submission of the learned counsel for the petitioner on this aspect is patently erroneous and cannot be accepted. 11. On the second question raised by the learned counsel for the petitioner, the court finds that the contention is untenable under U.P. Act No.13 of 1972. It is not the owner alone who can file an application under Section 21(1)(a) of the Act. The law is settled that a person who receives the rent can file an application for the release of the premises. From the evidence that has been brought on record, one finds that the document 27(k) which the lower appellate court had considered is an undertaking given by the petitioner to the effect that the petitioner would vacate the premises and handover possession to the landlord Chunni Lal. Jagdish alias Jagrup Verma, who has filed the application under Section 21(1)(a) of the U.P. Act No.13 of 1372 is the son of Chunni Lal, which fact is admitted to the petitioner himself. Further, the notice given by the advocate was on behalf of the respondent no.3 Jagdish alias Jagrup Verma and, in this notice, it was categorically stated that Jagdish alias Jagrup Verma is the owner and landlord and that he requires the premises for his personal use. The petitioner in his reply admitted that respondent no.3 is the landlord. 12. In the light of the aforesaid, the court is of the opinion that the application at the instance of respondent no.3 for the release of the premises was maintainable and it was not necessary that all the co- owners were required to file the application jointly. The judgment cited by the learned counsel for the petitioner has no application with the present controversy involved. In the light of the aforesaid, the court is the opinion that the orders of the courts below releasing the premises in question does not suffer from any error or law. The writ petition fails and is dismissed. (Tarun Agarwala, J.) Dated 19.07.2010 LSR