NAINITAL Writ Petition (M/S) No. 2553 of 2012 Rretired Col. Madan Mohan Punetha ...….......Petitioner -versus- Pallav Murari and another ...…...Respondents Date of hearing and order: 22.10.2021 Advocates appeared in the case:- For Appellant: Piyush Garg, learned counsel for the petitioner Versus For Respondents: Rajendra Dobhal, learned Senior Advocate, assisted by Mr. G.D.Joshi, Advocate Sri S.K.Mishra, J.
Heard Mr. Piyush Garg, learned counsel for the petitioner and Mr. Rajendra Dobhal, learned Senior Counsel for the respondents.
In this writ application, the petitioner in Original Civil Suit No. 1 of 2006 under Section 21(1)(a) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction), Act, 1972 before the Civil Judge, Senior Division, Pithoragarh assailed the order passed by the Additional District Judge, Pithoragarh setting aside the order passed by the Prescribed Authority dat ed 31.08.2009 passed in Rent Case No. 01/2006. The 2 Civil Suit was allowed in favour of the present petitioner. The facts are admitted in this case. It is admitted that the petitioner is a retired Colonel. Late Madan Mohan Punetha, was the landlord of the opposite party no. 1 & 2 and the tenanted premises was rented out to the respondents no.1 & 2. It is also admitted that late retired Colonel Madan Mohan Punetha, who was a Doctor and that he wanted the release of the tenanted premise s for running of a clinic in the said premises. The Presiding Officer accepted his claim and allowed the rent case. The Prescribed Authority directed the opposite party to release the premise in favour of late retired Col. Madan Mohan Punetha. However, the opposite party no. 1 & 2 i.e. the tenants preferred an appeal before the District Judge, Pithoragarh, whi ch was allowed vide judgement and order dated 05.10.2012 and the order of the Prescribed Authority was set aside. Said order has been challenged in this writ application.
It is also admitted that during the pendency of the present writ application, the original petitioner Col. Madan Mohan Punetha died and in his place, his wife and son i.e. petitioner nos. 1/1 and 1/2 were substituted. The only question which arise s, at this stage is whether the personal requirement of running a clinic in the said premises by Col. Madan Mohan Punetha survives after his death and if the substituted petitioner no. 1/1 and petitioner no.1/2 can maintain the application for eviction on the same ground for which the original petitioner had claimed for release of the tenanted premises. 3
Learned counsel for the petitioner relies upon the reported case Sheshambal (dead) through LRS. Vs. Chelur Corporation Chelur Building and others, reported in (201 0) 3 Supreme Court Cases 470 and drew the attention of this Court on para 28 of the judgement, which he considers appropriate. Para 28 of the aforesaid judgement Sheshambal (supra) is quoted hereunder: “As noticed earlier, the requirement pleaded in the eviction petition by the original petitioners was their own personal requirement and not the requirement of the members of their family whether dependent or otherwise. Indeed if the deceased landlords had any dependent member of the family we may have even in the absence of a pleading assumed that the requirement pleaded extended also to the dependent member of their family. That unfortunately, for the appellants is neither the case set up nor the position on facts. The deceased couple did not have any dependent member of the family for whose benefit they could have sought eviction on the ground that she required the premises for personal occupation.”
Learned counsel Mr. Piyush Garg very emphatically argued that since in the aforesaid case, the Hon’ ble Supreme Court has very categorically held that the requirement pleaded in the eviction petition by the 4 original petitioners was for their own personal requirement of the members of their family whether dependant or otherwise. In the case in hand also, the substituted petitioners should be allowed to continue the proceeding for release of the tenanted premise on the ground that for the purpose of running the Beauty Parlour and women necessary stores.
I am unable to accept the contentions raised by Mr. Piyush Garg because the same is contrary to the natural corollary to paragraph 28 of the judgment Sheshambal (supra). It is held that such extension of the requirement to the family members, dependant or otherwise will be applicable only when the original purpose for which the release is sought for, is not dependant on the personal qualification or proficiency or training or personal trades of the original petitioner. It is not disputed that the original petitioner was a doctor, who retired from the Indian Army and he intended the released shop for the purpose of running a clinic. It is also not disputed that none of the petitioners (petitioners no.1/1 and 1/2) is a qualified doctor. So, the reason for release of the premises cannot be said to be genuine and surviving on the death of Colonel Madan Mohan Punetha.
In view of the above, I am of the opinion that if at all the petitioners (petitioner no.1/1 and 1/2) are interested for release of the tenanted premise for the purpose of running female utility, then I am of the 5 considered view that then it is a fresh cause of action. Hence, the judgment and order passed by the learned District Judge reversing the judgment/order of the Prescribed Authority cannot be set aside. With such observation, the writ application is dismissed.
There shall be no order as to the costs.
Urgent certified copy of this order be granted on proper application. (S.K.Mishra) Judge KKS