Gulshera Khanam vs Aftab Ahmad

3) Facts of the case need mention, in brief, infra to appreciate the controversy involved in the appeal.

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.

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 “the Act”) 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 the appellant’s daughter, 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 the appellant’s one 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.

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 two years’ rent amount within 30 days from the date of the order. It was held that the appellant’s need for using Shop No. 6 is bona fide and genuine and that it is required for expansion of clinic run by the appellant’s daughter 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.

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.

13) Feeling aggrieved by the said order, the respondent-tenant filed C.M.W.P. No. 65612 of 2011 before the High Court.

34) Coming now to the facts of this case, keeping in view the principle of law laid down in the aforementioned case and on perusal of the order of the Prescribed Authority/Civil Judge and the first appellate court, we find that both the courts properly appreciated the facts and evidence adduced by the parties and on that basis recorded all necessary findings (detailed above) in favour of the appellant and granted decree of eviction against the respondent. This the Prescribed Authority/Civil Judge and the first appellate court could do in their respective jurisdiction and, in our opinion, both the courts rightly did it in the facts of this case.

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 three months’ time 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 three months’ rent 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 order.

41) The appeal is accordingly allowed with cost, which is quantified at Rs.10000/-, to be paid by the respondent to the appellant.