Reserved judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 593 (M/S) of 2011 Bhagwat Sharan Agrawal S/o Sri Raghubir Sharan - Petitioner Versus Om Prakash Bhardwaj S/o Late Sri Vaidh Bal Mukund Bhardwaj - Respondent Mr. Arvind Vashist, Advocate for the petitioner Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. D.C.S. Rawat Advocate for respondent. (Hon’ble B.S. Verma, J.) By means of this petition the petitioner has sought a writ in the nature of certiorari quashing the order dated 05-02-2011, passed by VI Additional District Judge, Haridwar, in Rent Control Appeal No. 76 of 2001, Om Prakash Bhardwaj Vs. Bhagwat Sharan, whereby the appeal was allowed and the order dated 27-7-2001, passed by Prescribed Authority was set aside. Brief facts giving rise to this petition, are that plaintiff/respondent filed S.C.C. Suit No. 16/1999, Om Prakash Bhardwaj Versus Sri Bhagwat Saran in the court of Judge S.C.C./Civil Judge (S.D.) Haridwar, for eviction against the petitioner/defendant on the ground that the premises in dispute was in the tenancy of petitioner/defendant @ Rs. 100/- per month rent and water tax and house tax @ Rs. 17.50P. per month and he has defaulted in paying the rent as well as water tax and house tax. The landlord sent notice to the tenant for payment of arrears of rent and water tax and house tax as well as for eviction. The learned Judge S.C.C. dismissed the suit of the landlord. The landlord also filed application U/S 21(1)(a) of U.P. Act No. 13 of 1972 against the tenant for release of the premises in question during the pendency of said suit. The application U/S 21(1)(a) of the Act, has been filed for personal need and his son Saket on the ground that the tenant has defaulted in payment of rent. The landlord was employed in Bharat Heavy Electrical Limited and the disputed shop was given to the tenant on the condition that after retirement of the landlord, the shop would be vacated by the tenant and possession would be given to the landlord, but after the retirement of the landlord, the shop has not 2 been vacated by the tenant. The landlord has retired in 1991. He does not get any pension. The landlord has the family consisting of his wife, two sons Saket aged 18 years and Sachin aged 14 years. The landlord cannot afford expenses of his family members. His wife is doing a private job and is getting Rs. 500/- per month. The landlord wants to open his own business of ready-made garments on the disputed shop. It is also alleged that the landlord has also another shop having a width of 6 feet only and the said shop has no sufficient space to run the business of readymade garments, therefore, he wants to expand the shop in his possession with the disputed shop so as to run his business of readymade garments. It is also alleged in the release application that the landlord wants to accommodate his son Saket in the disputed shop. It is also alleged in the release application that if the tenant vacates the shop in question he is ready to pay a sum equal to two years rent of the disputed shop to the tenant. The tenant filed objection against the release application and denied the averments made therein. He alleged that he never agreed to vacate the premises in question after the retirement of the landlord. He further alleged that the landlord has sufficient means to nourish his family members. After retirement the landlord got about Rs. 5,00,000/- and Rs. 3,50,000/- are in deposit with him. He also alleged that the landlord has no bonafide need of the shop in question to accommodate his son Saket on the suit premises. He also alleged that the wife of landlord is employed as teacher in Sant Raghubir Singh Memorial Junior High School Kankhal and she is getting about Rs. 10,000/- from that institution. It is also alleged that in the shop in occupation of landlord, the landlord is not running business but on the occasion of festivals he gives that shop on rent to some other persons for sale of colors and crackers. On the other hand the tenant has no other means of earning except the disputed shop. The learned Prescribed Authority after hearing counsel for parties and considering the entire material available on record, rejected the application U/S 21 (1)(a) of the Act vide order dated 27.7.2001. Feeling aggrieved the landlord preferred Rent Control Appeal, which was allowed by VI Additional District Judge, Haridwar, vide impugned order dated 5.2.2011 and directed the tenant to vacate the 3 premises in question and handover its possession to the landlord within a period of two months. At the same time the landlord was also directed to pay a sum equal to two years rent of the disputed premises to the tenant towards damages within a period of one month. Now feeling aggrieved by the order passed by the appellate court, this writ petition has been preferred by the tenant, reiterating the facts mentioned in the objection filed before the Prescribed Authority. The petitioner also alleged that the impugned judgment passed by appellate court is wholly illegal, improper and is not sustainable in the eye of law. The learned appellate court while concluding the question of comparative hardship has committed a manifest error of law in holding that the petitioner has no comparative hardship in comparison of the landlord. It is further alleged by the petitioner that the appellate court failed to consider the fact that the subsequent event showing the need of shop in dispute for the younger son Sachin is subsequent event and the release application was not filed for his need, hence his need cannot be considered without pleading. The respondent/landlord filed counter affidavit alleging therein that the appellate court has recorded categorical finding of fact that the need of landlord is bonafide and comparative hardship is also in his favour and the said finding cannot be looked into in the writ jurisdiction. It is also alleged that the Prescribed Authority without considering the evidence on record and provisions of law passed the order dated 27.7.2001 dismissing the application. It is also alleged in the counter affidavit that in the release application the landlord/respondent has categorically stated that the shop in dispute is needed to himself for running a business of readymade garments and he will keep his son Saket to help him in the business. Now the appellate court has only observed that his second son will also help him in the business and the shop in dispute is needed for running the business and for this fact there is no necessity for amending the release application. The learned Appellate Court has considered the bonafide need of landlord and his family business. Therefore, there is no illegality in the impugned judgment. The petitioner also filed rejoinder affidavit and reiterated the facts mentioned in the petition. 4 I have heard learned counsel for parties and perused the entire material available on record. At the outset it is to be noted that the scope of writ jurisdiction is very limited and in view of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675 and Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], it has only to be examined whether the courts below have committed any manifest error of law or the jurisdictional error or has based its findings without any evidence. Learned counsel for the petitioner has submitted that the landlord has pleaded in the release application that the shop is needed for himself as well as for his elder son Saket to run the business of readymade garments, but the learned Appellate Court has passed the eviction order on the ground that the shop is needed for the landlord himself as well as his younger son Sachin, which is against the pleading and the subsequent event of need of younger son Sachin could not have been considered, therefore, learned Appellate court has committed a manifest error of law by considering the subsequent event of need of younger son Sachin. In support of his contention learned counsel has cited before me the case of Madan Lal Aggarwal & another versus District Judge, Pauri Garhwal & another, decided by learned Single Judge of this Court on 6-1-2011, in Writ Petition No. 3933 (M/S/) of 2001, and the case of Jai Prakash Gupta (dead) through LRS. Vs. Riyaz Ahmad and another, reported in (2009) 10 Supreme Court Cases 197. On the other hand learned counsel appearing on behalf of respondent/landlord has supported the judgment and order passed by appellate court. He has contended that primarily the landlord wanted the possession of the premises in dispute for running a business for himself and his elder son Saket. The need of Saket was there and the learned appellate court also considered the need of another son Sachin who has attained the age to engage himself to earn his livelihood by that time, therefore, the finding of learned appellate court cannot be said to be a perverse finding. He also submitted that the tenant has not proved this fact that Saket and wife of landlord were gainfully employed, by filing an affidavit in this respect. Therefore, need of 5 entire family existed. In support of his contention learned counsel has cited before me the following cases:- (1) Gaya Prasad versis Pradeep Srivastava, reported in [2001 (42) ALR 685, the case of Shiv Shanker Tripathi Vs. Vth A.D.J., Mainpuri and others, reported in [2010(83) AL 283], (2) Gopal Sharma and others Vs. XIVth Additional District Judge, Meerut and others, reported in [2007 (68) ALR 815], (3) Dhannu Kushwaha versus Mahendra Kumar Sahu and others, reported in [ 2001 (42) ALR 495], (4) Tribhuvan Nath Mehrotra versus District Judge, Allahabad and others, reported in 1988 ALR 352, (5) Sohan Lal Versus Addl. District and another, reported in [2003 (53) ALR 269 (Uttaranchal High Court)], (6) Chetan Prakash versus The Civil Judge (Sr. Div.) Hapur, Ghaziabad and others, reported in 2000, ALR 48. I have considered the rival contentions of learned counsel for parties and have gone through the rulings cited by them. In Writ Petition No. 3933 (M/S) of 2001, Madan Lal Aggarwal & another versus District Judge, Pauri Garhwal and another, the learned Single Judge of this Court has considered the question of subsequent need, and has held that in view of Jai Prakash Gupta (dead) through LRS Vs. Riyaz Ahamad & another 2009, (10)SCC 197, unless the pleadings are amended to bring the subsequent events on record, the same cannot be taken into consideration. The facts of that case are totally different to the facts of the case in hand. In the above cited case an affidavit along with an application was filed indicating that during the pendency of the writ petition, subsequent events have taken place and that the grandsons of the original landlord have also grown up who are unemployed, and consequently, are also required to be settled in business. However, in the case in hand it has specifically been mentioned in the release application that the landlord has retired, he gets no pension and his family is consisting of his wife, and two sons Saket and Sachin and he is unable to nourish the entire family. Saket has grown up and Sachin is still studying. The landlord wanted to run his readymade business in the shop in question after combining the shop in question and the another shop in his occupation, having a 6 space of 6 feet and need of his son Saket still survived. Although the tenant has asserted that wife of landlord is getting a handsome amount of Rs. 10,000/- from her teaching work and his son Saket has established somewhere, but no affidavit in this regard has been filed in by the tenant. If the appellate court has recorded a finding that the shop in question is needed for the landlord himself and for his younger son Sachin, who is unemployed, the same cannot be said to be a perverse finding. The need of the landlord himself was there and still the need of sons of landlord, Saket and Sachin was there. The appellate court has considered this issue and held that elder son is doing business in another shop and it was incumbent upon the father to establish his both the sons. Therefore, the need of younger son cannot be said to be subsequent need. His need to engage himself in some business is there. In the second case of Jai Prakash Gupta (dead) through LRS. Vs. Riyaz Ahmad and another, reported in (2009) 10 Supreme Court Cases 197,cited by counsel for petitioner, the Hon’ble Apex Court has held that writ court could not decide the issue relating to landlord’s bonafide requirement and comparative hardship of parties without proper evidence on record. In para-34 the observation of Hon’ble Apex Court is quoted below:- “34.In view of the statements made in the counter-affidavit filed by the appellant landlord to the extent that he has got two grown-up sons and a daughter and that being the position, the requirement of the present landlord has increased and, therefore, the respondent tenant is liable to be evicted. That being the position, we are, therefore, of the view that it would be open to the appellant landlord to file an application for amendment of the original release application for the purpose of incorporating the fact of the requirement of two sons and a daughter by amending the same, to which it would be open to the respondent tenant to file written objection.” It is well settled that the need of landlord is to be seen on the date of filing application U/S 21(1)(a) of the Act. In the case of Gaya Prasad Vs. Pradeep Srivastava, the Hon’ble Apex Court has observed as under- 7 “we have no doubt that the crucial date for deciding as to the bona fide of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps having utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the list. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused. Considering all the aforesaid decisions, we are of the definite view that the subsequent events pleaded and highlighted by the appellant are too insufficient to overshadow the bona fide need concurrently found by the fact finding courts.” In the case of Shiv Shanker Tripathi Vs. Vth A.D.J., Mainpuri and others, reported in [2010(83) AL 283] it has been held that release sought on ground of clinic for son, subsequently it was discovered that son has joined medical services, is not sufficient to over-shadow the bonafide need concurrently found by fact finding courts. To overshadow the genuineness of need, the subsequent events must be of such nature and dimension that the need should have been completely eclipsed by it. 8 In the case of Gopal Sharma and others Vs. XIVth Additional District Judge, Meerut and others, reported in [2007 (68) ALR 815], it has been held that in the conclusion of appellate court based on analysis of material available on record, basically a finding of fact based upon appreciation of evidence, neither error committed nor irrelevant facts taken into consideration nor any material piece of evidence ignored, no interference is warranted. Release of shop was sought by landlord for his own need along with the need of his elder son, death of elder son has occurred and the landlord has to maintain the family of his deceased son, landlord has got no other commercial accommodation except the disputed one, need of deceased son stands substituted by the need of his widow and other son of landlord has become major, his need cannot be overlooked. In the case of Dhannu Kushwaha Vs. Mahendra Kumar Sahu and others, reported in [2001(42) ALR 495], it has been held that that additional evidence if allowed and filed at appellate stage, then it is obligatory on appellate court to consider it. In the case of Tribhuvan Nath Mehrotra versus District Judge, Allahabad and others, reported in 1988 ALR 352, it has been observed that subsequent events at appellate stage may be placed by means of proper affidavit and proper opportunity to land lady to controvert it should be afforded. In the case of Sohan Lal Versus Addl. District and another, reported in [2003 (53) ALR 269 (Uttaranchal High Court)},cited on behalf of respondent it has been held by learned Single Judge of this Court that subsequent event after commencement of lis can be brought to the notice of court by filing affidavit. In the case of Chetan Prakash versus The Civil Judge (Sr. Div.) Hapur, Ghaziabad and others, reported in 2000, ALR 48, cited on behalf of respondent, it has been held that all facts which were sought to be brought on record by means of amendment could be submitted through an affidavit. Therefore, from above cited rulings it is quite clear that subsequent event should be brought on record in the form of affidavit 9 with an opportunity to landlord to controvert the same and it is obligatory on the appellate court to consider it. In the instant case the landlord had pleaded need of his elder son as well as himself and elder son and if elder son has been engaging in profession and younger son has grown up, the bonafide need of landlord and his younger son still survived. Further the tenant has not filed affidavit showing that the landlord and his other members of family are employed gainfully, the bonafide need of landlord and his second son Sachin cannot be ignored. Further the bonafide need is to be seen on the date of application. I have also perused the finding recorded by Prescribed Authority on the issue of bonafide need of landlord and comparative hardship of parties. The Prescribed Authority has recorded a finding that the shop situated in northern side of the disputed shop, which is in possession of landlord is having a width of 2.74 meter and 6.40 meters long is sufficient to run a business of readymade garments. The Prescribed Authority also did not consider the need of elder son of landlord and observed that this assertion of landlord that his son wants to engage in his business cannot be believed that his son would engage himself in the business after leaving his studies. This finding of Prescribed Authority is perverse finding. Any one may engage his son in business for earning his livelihood. On the point of comparative hardship of tenant the Prescribed Authority observed that he has taken loan from Syndicate Bank and he has also license of disputed shop. As stated in the earlier part of this judgment that the landlord after his retirement does not get any pension and he has to establish his two sons in his business of readymade garments and to run the said business the shop already in his possession is not sufficient. The tenant should have made sincere efforts to make a search for some other accommodation after the landlord has felt need of disputed shop. Therefore, I find that the finding of Prescribed Authority on the point of bonafide need of landlord and comparative hardship of parties, is perverse finding and the appellate court has rightly rejected the same and allowed the appeal. On the other hand in view of the discussions made in foregoing paragraphs, I do not find any illegality and jurisdictional error in the 10 finding recorded by appellate court on the point of bonafide need and comparative hardship of the landlord. The writ petition lacks merit and is liable to be dismissed. The writ petition is dismissed. The judgment and order passed by appellate court is upheld. The tenant is directed to vacate the shop in question within a period of six months and hand over its possession to the landlord provided the tenant gives undertaking to this effect before the Prescribed Authority concerned, within a period of two weeks. Dated: 01-08-2011 (B.S. Verma, J.) ISB