Case: Gulshera Khanam Vs. Aftab Ahmad

4) The appellant is the landlady of the shop being Shop No. 6 situated on the Dodhpur Road, Aligarh, Building No. 4/569B. The respondent is the tenant in Shop No. 6 and doing business of selling Footwear (shoes and sandals) in the name of Khan Brothers on a monthly rent of Rs.100/-.5) There are in all 7 shops in the building in which suit shop in situated. Except Shop No.7, all are occupied by different tenants. Shop No. 7 is in occupation of the appellant wherein her daughter Dr. Naheed Parveen is doing medical practice. Initially, Shop No. 7 was occupied by the husband of the appellant, Dr. Ahsan Ahmed, who was practicing medicines in the said shop and after his death, the said shop remained closed for about two-three years and after that her daughter started practicing medicines there.6) According to the appellant, Shop No. 7 is about 16.9 ft. x10 ft. in area and is inadequate for running clinic.7) On 11.02.1994, the appellant personally requested the respondent to vacate Shop No. 6 but he did not vacate. Therefore, the appellant filed an application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as) in the Court of the Prescribed Authority/Civil Judge, Senior Division, Aligarh being U.P.U.B. Case No. 13 of 1994 seeking release of Shop No. 6 in her favour for her bona fide requirement and genuine need in comparison to the need of the respondent. It was alleged that thedaughter, who is a doctor and running her private clinic in Shop No. 7 is finding it difficult and inconvenient to run the clinic due to space constraint in Shop No. 7 and it is for this reason she requires adjacent Shop No. 6 so that both Shops, i.e., 6 and 7 could be used for running the clinic in a comfortable manner. It was also alleged that theone son has done his MBBS and is doing M.D. He too would do his practice in the shop in question. It was alleged that there would be no space constraint once both the Shops (6&7) are clubbed together. It was further alleged that the appellant has no other shop available except Shop No. 6 which is most suitable for expansion of clinic being next to Shop No.It was also alleged that the respondent is having his own shops in the same area and hence even if he vacates the shop in question, there will be no hardship to him.8) The respondent filed his written statement to the application denying the need of the appellant-landlady as bona fide or genuine. Parties adduced evidence.9) By order dated 04.03.1999, the Prescribed Authority allowed the application and directed the respondent-tenant to vacate the shop in question within 3 months of the date of the order and to give the vacant possession to the appellant-landlady and also pay by way of damages tworent amount within 30 days from the date of the order. It was held that theneed for using Shop No. 6 is bona fide and genuine and that it is required for expansion of clinic run by thedaughter in Shop No. 7 and her son. It was held that the appellant has no other suitable shop in city where her daughter/son can run their clinic. It was also held that the respondent has other shops for running his business in the same locality and, therefore, there would be no hardship caused to the respondent.10) Felt aggrieved by the said order, the respondent-tenant filed an appeal being U.P.U.B. Appeal No. 7 of 1999 under Section 22 of the Act before the Additional District Judge, Aligarh. By order dated 02.02.2000, the appellate court allowed the appeal and set aside the order dated 04.03.1999 on the ground that the Presiding Officer has no jurisdiction to pass the order.11) Against the said judgment/order dated 02.02.2000, the appellant- landlady filed C.M.W.P. No. 10669 of 2000 before the High Court. The High Court by order dated 18.02.2011 allowed the petition and set aside the order dated 02.02.2000 and remanded the matter to the appellate Court for deciding the same on merits in accordance with law.12) Thereafter by order dated 24.08.2011, the appellate court dismissed the appeal (U.P.U.B. Appeal No. 7 of 1999) of the respondent-tenant and confirmed the order dated 04.03.1999 passed by the Prescribed Authority.13) Feeling aggrieved by the said order, the respondent-tenant filed C.M.W.P. No. 65612 of 2011 before the High Court.14) By impugned judgment dated 17.01.2012, the High Court allowed the writ petition and set aside the order dated 04.03.1999 of the Prescribed Authority and order dated 24.08.2011 dismissing the appeal of the respondent-tenant. The High Court held that firstly, thedaughter- Dr. Naheed Parveen is not a member of family as defined under Section 3(g) of the Act because she is a married daughter whereas Section 3(g)(iii) include only an. Secondly, it was held that for this reason, the appellant could not seek eviction for the need of her married daughter; and lastly, it was held that theneed is not bona fide.15) Against the said judgment, the appellant-landlady has filed this appeal by way of special leave before this Court.

Reasoning:
30) Dr. Naheed Parveen being the daughter, accordingly, received her share and became co-owner of the building along with other co-sharers. Being a co-owner, she got a legal right of residence in the building as provided under Section 3(g) of the Act. In this way, she fulfilled the definition ofunder Section 3 (g) of theare unable to agree with the reasoning of the High Court and while reversing the finding answer the second question in appellants favour and accordingly hold that the appellant was entitled to claim eviction of the respondent from the building in question for the need of her daughter Dr. Naheed Parveen for running her clinic as the daughter was having a legal right of residence in the building inIn our considered opinion, the question in relation to the bona fide need of the appellants daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court infavour by holding theneed to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc.37) The High Court, in our view, should have seen, as was rightly held by the two courts below, that the appellants daughter had been running her medical clinic in shop No. 7 for quite some time. This fact was not in dispute. Though a feeble attempt was made by the respondent contending that after appellants daughters marriage, she has started living in Moradabad and, therefore, her need to run the clinic and expand its activity is not bona fide but this plea did not find favour with Prescribed Authority and the first appellate Court and, in our view, this being a pure finding of fact, was binding on the High Court in its writ jurisdiction.38) In our considered opinion, the appellants need for additional space for the expansion of clinic activities for her daughter cannot be said to be unjust or unreasonable in any manner. It is for the reasons that, firstly, the suit shop No.6 is adjacent to Shop No. 7 and secondly, the need for expansion of clinic could be accomplished effectively only with the use of two shops, which are adjacent to each other. It is a well settled principle laid down by this Court in rent matters that the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of his/her activity. This principle was overlooked by the High Court while deciding the issue of need. That apart, the High Court should have also seen that the two courts below have recorded a finding that the respondent was having his own shops in the same area where he could shift his existing business activity without suffering any comparativeour view, there was no justification on the part of the High Court to have probed into any factual issues again in depth by undertaking appreciation of evidence like a first appellate court and reversed the findings.40) In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court. The impugned judgment is, therefore, not legally sustainable and is accordingly set aside. As a result, the order dated 04.03.1999 of Prescribed Authority in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional District Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are restored. The respondent is, however, granted threetime to vacate the suit shop from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further, the respondent would in addition to the directions given by the Prescribed Authority also deposit all arrears of rent till date at the same rate at which he had been paying monthly rent to the appellant (if there are arrears) and would also deposit threerent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and compliance of direction to deposit damages by Prescribed Authority and the cost awarded by this Court be deposited within one month from the date of this