Kanahaiya Lal Arya v. Md. Ehshan Others has held that the landlord is a best judge to decide
Case Details
6. On the other hand, learned Senior Counsel for the respondents/ landlord submitted that the release application filed by the respondents / landlord has been rightly allowed by the prescribed authority considering the bona- fide need of the landlord in proper manner. He further submitted that the appeal filed by the petitioner / tenant has also been dismissed considering the each and every aspect of the matter, as such, no interference is required against the concurrent judgement passed by the prescribed authority as well as appellate authority in respect to the proceeding under Section 21 (1) (a) of the U.P. Act No.13 of 1972. He further submitted that the prescribed authority has framed three issues in the proceeding under Section 21 (1) (a) of the U.P. Act No.13 of 1972 and recorded the finding of fact that there was relationship of landlord / tenant between the parties as well as the need setup by the landlord is bona-fide coupled with the fact that the comparative hardship is in favour of the landlord in comparison to tenant. He further submitted that the finding of fact recorded by the prescribed authority has been further examined by the appellate Court and it has been held that there was proper consideration of the case regarding bona-fide need of the landlord with respect to the shop in question. He further submitted that no interference is required in the matter and Writ petition is liable to be dismissed.
7. I have considered the argument advanced by learned counsel for the parties and perused the records.
8. There is no dispute about the fact that the petitioner is tenant of the shop in question and respondents are landlord of the same. There is also no dispute about the fact that proceeding under Section 21 (1) (a) of the U.P. Act No.13 of 1972 initiated by the respondents/ landlord was allowed by the prescribed authority and appeal under Section 22 of U.P. Act No.13 of 1972 filed by the petitioner/ tenant was dismissed by the appellate Court / Additional District Judge.
9. In order to appreciate the controversy involved in the matter, perusal of all the three issues framed by the prescribed authority in the proceeding for release in respect to shop in question will be relevant, which are as under: " ममनन उभय पक कन ववददन अधधवकद कक बहस ससनन तथद पतदवलन कद भलन भदभवत पररशनलन वकयद। धदरद-21(1) समय नयदयदलय कक वनमनधलधखत तनन वबनदसओभ पर वनषकरर वयक करनद आवशयक हह- ए उ०प०अधधवनयम 13 सनन 1972 कन अनतररत यदचनरण कन दसकदन वनमसवकर त पदथरनद पत वनसतदररत करतन
1. कयद यदचनरण व ववपकन कन मधय दसकदन मदधलक व वकरदयनददरन समबनध हह?
2. कयद यदचनरण कक वववदवदत दसकदन कक सददवन आवशयकतद हह? यदचनरण कद दसकदन वनमसवकर त पदथरनद पत सवनकदर हकनन पर तसलनदतमक कवठनदई ववपकन कन पक मम हकरन तथद पदथरनद पत
3. वनरसत हकनन पर तसलनदतमक कवठनदई यदचनरण कन पक मम हकरन?"
10. Prescribed authority while considering three issues framed in the proceeding as quoted above has considered the evidence adduced by both the parties and has recorded categorical finding of fact that there was relationship of landlord and tenant between the parties and need setup by the landlord was bona-fide and genuine. The finding of fact has also recorded by the prescribed authority while deciding the issue no.3 to the effect that comparative hardship is in favour of the landlord in comparison to tenant.
11. The appellate Court has also considered the case of the parties while deciding the appeal filed by the tenant and has held that there is no illegality in deciding the issue relating to the need as well as comparative hardship of the parties in respect to the shop in question, accordingly, there is no illegality in the exercise of appellate jurisdiction by the appellate Court.
12. On the question of bona-fide need of the landlord, the Apex Court in the case reported in 2025 (3) ADJ 308, Kanahaiya Lal Arya vs. Md. Ehshan & Others has held that the landlord is a best judge to decide which of his property should be vacated for satisfying his particular need and tenant has no role in dictating as to which premises of the landlord should get vacated for his need alleged in the suit for eviction. Paragraph nos.11,15 & 16 of the judgement of Apex Court rendered in Kanahaiya Lal Arya (supra) will be relevant, which are as under: "11. In the case at hand, the appellant-landlord may be having some other properties under tenancy of various persons but once he has decided to get the suit premises vacated for the bona fide need of establishing an ultrasound machine for his two unemployed sons, he cannot be forced to initiate such a proceeding against the other tenants. It is for the appellant-landlord to take a decision in this regard and once he has decided to get the suit premises vacated, no error or illegality could be pointed out in his decision. Secondly, it has come on record by clear finding of the court of first instance that the suit premises is the most suitable accommodation for establishing an ultrasound machine. The reason being that it is situated adjacent to a medical clinic and a pathological centre and is the most appropriate place for establishing any medical machine. Moreover, the appellant-landlord has also proved his capacity to invest in purchasing/establishing an ultrasound machine and that his two sons are unemployed and as such the suit premises is required to establish them in business and to augment the family’s income. Therefore, the bona fide need of the appellant-landlord stands duly established.
15. As would be evident from the above compromise, the decree for partial eviction from the premises occupied by the respondents-tenant was partially decreed in Second Appeal No.40/1983 on 31.03.1988 for the bona fide need of the appellant-landlord to establish his brother-in-law. The said need was altogether a different need. The said decree of the year 1988, even if not used for the purpose intended, it would not affect the rights of the appellant- landlord which accrues to him in the year 2001. The need of the appellant- landlord for getting the suit premises vacated for establishing his two sons has to be seen on the date of filing of the suit i.e., 28.11.2001. On the said date, the need of the appellant-landlord stands established. The said need would not get eroded by any earlier decree of eviction of the year 1988.
16. Accordingly, in view of the facts and circumstances of the case, the appellant-landlord has proved his bona fide need for the suit premises. The appeal is allowed and the impugned judgment and order dated 18.08.2022 and 25.09.2006 of the High Court and the First Appellate Court respectively are set aside. The suit of the appellant- landlord stands decreed."
13. Considering the ratio of law laid down by Apex Court in Kanahaiya Lal Arya (Supra) as well as finding recorded by the prescribed authority / appellate authority, there is no scope for interference against the impugned judgement / order passed by the prescribed authority dated 17.5.2008/ appellate authority dated 20.8.2011.
14. The writ petition is dismissed. However, considering the facts and circumstances of the case, the petitioner/ tenant is granted nine months time to vacate the shop in question subject to the following conditions: (a). Petitioner/ tenant shall file an undertaking before the prescribed authority within period of three weeks from today to the effect that he will handover peaceful possession of the shop in question to the respondent / landlord. (b). Petitioner / tenant shall pay rent / damages of the shop in question to the landlord @ Rs.2,000/- per month as fixed under the interim order dated
6.9.2011 passed by this Court till the date petitioner/ tenant vacates the shop in question. (c). In the undertaking, petitioner / tenant shall also state that he will not create any third party interest in the shop in question. (d). In case of default of any of the condition mentioned above, protection granted by this Court shall automatically vacated. (e). In case shop in question is not vacated as per the undertaking given by the petitioner/ tenant, he shall be liable for contempt. Order Date :- 11.8.2025 Rameez RAMEEZ AHMED High Court of Judicature at Allahabad
6. On the other hand, learned Senior Counsel for the respondents/ landlord submitted that the release application filed by the respondents / landlord has been rightly allowed by the prescribed authority considering the bona- fide need of the landlord in proper manner. He further submitted that the appeal filed by the petitioner / tenant has also been dismissed considering the each and every aspect of the matter, as such, no interference is required against the concurrent judgement passed by the prescribed authority as well as appellate authority in respect to the proceeding under Section 21 (1) (a) of the U.P. Act No.13 of 1972. He further submitted that the prescribed authority has framed three issues in the proceeding under Section 21 (1) (a) of the U.P. Act No.13 of 1972 and recorded the finding of fact that there was relationship of landlord / tenant between the parties as well as the need setup by the landlord is bona-fide coupled with the fact that the comparative hardship is in favour of the landlord in comparison to tenant. He further submitted that the finding of fact recorded by the prescribed authority has been further examined by the appellate Court and it has been held that there was proper consideration of the case regarding bona-fide need of the landlord with respect to the shop in question. He further submitted that no interference is required in the matter and Writ petition is liable to be dismissed.
7. I have considered the argument advanced by learned counsel for the parties and perused the records.
8. There is no dispute about the fact that the petitioner is tenant of the shop in question and respondents are landlord of the same. There is also no dispute about the fact that proceeding under Section 21 (1) (a) of the U.P. Act No.13 of 1972 initiated by the respondents/ landlord was allowed by the prescribed authority and appeal under Section 22 of U.P. Act No.13 of 1972 filed by the petitioner/ tenant was dismissed by the appellate Court / Additional District Judge.
9. In order to appreciate the controversy involved in the matter, perusal of all the three issues framed by the prescribed authority in the proceeding for release in respect to shop in question will be relevant, which are as under: " ममनन उभय पक कन ववददन अधधवकद कक बहस ससनन तथद पतदवलन कद भलन भदभवत पररशनलन वकयद। धदरद-21(1) समय नयदयदलय कक वनमनधलधखत तनन वबनदसओभ पर वनषकरर वयक करनद आवशयक हह- ए उ०प०अधधवनयम 13 सनन 1972 कन अनतररत यदचनरण कन दसकदन वनमसवकर त पदथरनद पत वनसतदररत करतन
1. कयद यदचनरण व ववपकन कन मधय दसकदन मदधलक व वकरदयनददरन समबनध हह?
2. कयद यदचनरण कक वववदवदत दसकदन कक सददवन आवशयकतद हह? यदचनरण कद दसकदन वनमसवकर त पदथरनद पत सवनकदर हकनन पर तसलनदतमक कवठनदई ववपकन कन पक मम हकरन तथद पदथरनद पत
3. वनरसत हकनन पर तसलनदतमक कवठनदई यदचनरण कन पक मम हकरन?"
10. Prescribed authority while considering three issues framed in the proceeding as quoted above has considered the evidence adduced by both the parties and has recorded categorical finding of fact that there was relationship of landlord and tenant between the parties and need setup by the landlord was bona-fide and genuine. The finding of fact has also recorded by the prescribed authority while deciding the issue no.3 to the effect that comparative hardship is in favour of the landlord in comparison to tenant.
11. The appellate Court has also considered the case of the parties while deciding the appeal filed by the tenant and has held that there is no illegality in deciding the issue relating to the need as well as comparative hardship of the parties in respect to the shop in question, accordingly, there is no illegality in the exercise of appellate jurisdiction by the appellate Court.
12. On the question of bona-fide need of the landlord, the Apex Court in the case reported in 2025 (3) ADJ 308, Kanahaiya Lal Arya vs. Md. Ehshan & Others has held that the landlord is a best judge to decide which of his property should be vacated for satisfying his particular need and tenant has no role in dictating as to which premises of the landlord should get vacated for his need alleged in the suit for eviction. Paragraph nos.11,15 & 16 of the judgement of Apex Court rendered in Kanahaiya Lal Arya (supra) will be relevant, which are as under: "11. In the case at hand, the appellant-landlord may be having some other properties under tenancy of various persons but once he has decided to get the suit premises vacated for the bona fide need of establishing an ultrasound machine for his two unemployed sons, he cannot be forced to initiate such a proceeding against the other tenants. It is for the appellant-landlord to take a decision in this regard and once he has decided to get the suit premises vacated, no error or illegality could be pointed out in his decision. Secondly, it has come on record by clear finding of the court of first instance that the suit premises is the most suitable accommodation for establishing an ultrasound machine. The reason being that it is situated adjacent to a medical clinic and a pathological centre and is the most appropriate place for establishing any medical machine. Moreover, the appellant-landlord has also proved his capacity to invest in purchasing/establishing an ultrasound machine and that his two sons are unemployed and as such the suit premises is required to establish them in business and to augment the family’s income. Therefore, the bona fide need of the appellant-landlord stands duly established.
15. As would be evident from the above compromise, the decree for partial eviction from the premises occupied by the respondents-tenant was partially decreed in Second Appeal No.40/1983 on 31.03.1988 for the bona fide need of the appellant-landlord to establish his brother-in-law. The said need was altogether a different need. The said decree of the year 1988, even if not used for the purpose intended, it would not affect the rights of the appellant- landlord which accrues to him in the year 2001. The need of the appellant- landlord for getting the suit premises vacated for establishing his two sons has to be seen on the date of filing of the suit i.e., 28.11.2001. On the said date, the need of the appellant-landlord stands established. The said need would not get eroded by any earlier decree of eviction of the year 1988.
16. Accordingly, in view of the facts and circumstances of the case, the appellant-landlord has proved his bona fide need for the suit premises. The appeal is allowed and the impugned judgment and order dated 18.08.2022 and 25.09.2006 of the High Court and the First Appellate Court respectively are set aside. The suit of the appellant- landlord stands decreed."
13. Considering the ratio of law laid down by Apex Court in Kanahaiya Lal Arya (Supra) as well as finding recorded by the prescribed authority / appellate authority, there is no scope for interference against the impugned judgement / order passed by the prescribed authority dated 17.5.2008/ appellate authority dated 20.8.2011.
14. The writ petition is dismissed. However, considering the facts and circumstances of the case, the petitioner/ tenant is granted nine months time to vacate the shop in question subject to the following conditions: (a). Petitioner/ tenant shall file an undertaking before the prescribed authority within period of three weeks from today to the effect that he will handover peaceful possession of the shop in question to the respondent / landlord. (b). Petitioner / tenant shall pay rent / damages of the shop in question to the landlord @ Rs.2,000/- per month as fixed under the interim order dated
6.9.2011 passed by this Court till the date petitioner/ tenant vacates the shop in question. (c). In the undertaking, petitioner / tenant shall also state that he will not create any third party interest in the shop in question. (d). In case of default of any of the condition mentioned above, protection granted by this Court shall automatically vacated. (e). In case shop in question is not vacated as per the undertaking given by the petitioner/ tenant, he shall be liable for contempt. Order Date :- 11.8.2025 Rameez RAMEEZ AHMED High Court of Judicature at Allahabad