ABDUL RASHID Vs. FIRST ADDL DISTRICT JUDGE ALLAHABAD
LAWS(ALL)-1979-12-27
HIGH COURT OF ALLAHABAD
Decided on December 06,1979

ABDUL RASHID Appellant
VERSUS
FIRST ADDL.DISTRICT JUDGE, ALLAHABAD Respondents


Referred Judgements :-

JAAWANT SINGH V. STATE OF U. P. [REFERRED TO]
SYED YAKOOB VS. K S RADHAKRISHNAN [REFERRED TO]
ZORA SINGH VS. J M TANDON [REFERRED TO]


JUDGEMENT

Murlidhar, J. - (1.)THIS is a tenant's petition under Article 226 of the Constitution arising out of proceedings under Section 21 Act No. XIII of 1972 for eviction from a shop. The tenant has been carrying on tailoring work in this shop for about sixteen years. He has two sons one of whom is admittedly running another tailoring shop in Civil Lines. To other son was also alleged to be having his own shop in Bai Ka Bagh but the case of the tenant that he was merely an employee of the shop has not been rebutted. Apart from these sons, the tenant has also four daughters in his family. The landlords are three brothers. Their father Bulaki Ram had been running a milk product shop in Johnstonganj, the main market of this town. The license apparently still stands in his name. The disputed shop is situate on the ground floor of the residential building of the family. Another shop used as tea stall is used by one of the landlord. Another co-landlord is in government service. The respondent landlords' case was that Shambhoo Nath respondent being unemployed required the shop in question for starting his own general merchandise business. The tenant had contended that Shambhoo Nath was not unemployed, that his father having retired Shambhoo Nath was the person looking after the milk shop in Johnston ganj, and he filed a photograph with Shambhoo Nath sitting on it in support of this plea. Shambhoo Nath in his counter affidavit copy of which is Annexure 4 to the present writ petition, denied ever sitting at the father's shop or having any concern with that shop, but curiously did not explain the photograph except by sayine that the photographer" might have taken photograph of another shop and not the shop of Bulaki Lal" and that the photographer had shown his skill by taking the photograph of another shop showing the deponent in picture at that." The Prescribed Authority recorded the finding that the plea that Sambhoo Nath was already looking after the milk business of his father who had retired due to old age had substance and Shambhoo Nath could not be regarded as an unemployed person. On this ground and another ground of inexperience in general merchandise business, the Prescribed Authority found that the bonafide requirement was not there. He also held that the test of comparative hardship was against the landlord. The Additional District Judge in appeal reversed these findings. THIS is the order challenged by this petition. Hearing heard the learned counsel for parties, I have come to the c inclu sion that the findings recorded by the appellate authority are unsustainable. The appellate authority observed that the Prescribed Authority's view that Sham bhoo Nath was assisting his father was not a valid ground for discounting the case of bonafide requirement for the shop for starting his own business. It is true that it also pointed out that want of experience was not a proper ground and this part of the reasoning is unexceptionable but so far as the main ground of Shambhoo Nath being unemployed is concerned, the finding clearly surfers from a misreading of evidence. The landlord's case was not that Shambhoo Nath had been assisting his father in milk business. Their expressive was that due to father's retirement owing to old age, Shambhoo Nath was doing that business. The father did not file an affidavit in the proceedings. The son also beyond general denying his concern with the father's shop said nothing whatever to rabbit the allegation supported by the photograph. It was on this data that the Prescribed Authority had found Shambhoo Nath to be employed and looking after or working on the father's shop. The appellate authority has wrongly assumed that the Prescribed Authority had observed that Shambhoo Nath was assisting his father in business. It was at no stage the case of Shambhoo Nath that he was assisting his father. The consistent case was that he had nothing whatever to do with that shop. In this situation, the reversal of the finding of the Prescribed Authority on the wrong assumption that he was merely an assistant and wanted his own separate business is unsus tainable. The learned counsel for the respondent strongly contended that the rending about bonafide requirement is a finding of fact and should not be interfered with in certiorari jurisdiction, even if an erroneous one. Syed Yaqub v. Radha Krishnan. A.I.R. 1964 S.C. 477 Jora Singh v, J. M. Tandon AI.R. 1971 S.C. 1537 and Jaawant Singh v. State of U. P. 1976 A.W.R. P. 735 were cited. The proposition that while exercising jurisdiction under Article 226 this Court should not reappraise evidence and convert itself virtu ally into a Court of appeal is well settled and unexceptionable. It is however, equally clear that findings of fact which are perverse or based on no evidence or on irrelevant considerations or on ignoring a misreading of material evidence are treated to suffer from an error apparent on the face of the record. Nanha v. Dy. Director (Consolidation) A.I.R. 1976 All. 91 F.B may be referred to in this connection. It was held that if the finding of fact is based on no evidence or is perverse in the sense that no reasonable person could possibly come to that conclusion or that it erroneously ignores a vital plea or material evidence which affects the result a manifest error of law apparent on the face of the record leading to failure of justice can be said to be established. Misreading a plea or evidence stands on the same footing as ignoring the same. In my opinion in the present case the finding of fact comes within the mischief of this rule and must, therefore, be struck down. The same holds good with regard to the finding on the question of com parative hardship. The appellate authority has based his finding squarely on the position that the tailoring saop business can be clearly shifted to the civil lines tailoring shop of the petitioner's son without any significant loss. He has not expressly referred to Rule 16 (2) (b) of the rules but apparent this was in his mind. THIS finding is also arbitrary. There is no finding and indeed there was no case that the son was not running a separate tailoring shop and the civil lines shop too belonged to the father. If the father and the son had been running two separate shops, it cannot be assumed that shifting the business of the father's shop to the son's shop would not mean substantial loss. Ordinarily it would imply substantial loss. Ordinarily it would imply aubsrantial loss. At no stage were any special circumstance alleged which would justify the inference that the loss would not be substantial. The learned District Judge observed that the Prescribed Authority had virtually directed the landlord's son to stay in father's business but had not taken the same view with regard to the petitioner's shop. But he himself fell into a similar error by holding that the landlord who was working at the father's shop had a right to stand on his own legs and at the same time ruling that the tenant who had been running his own business separate from the son should stand on the son's legs. In my opinion special circumstances a part it is not possible to assume that the father's business can be shifted to the son's separate shop without substantial loss. In such cases, therefore to hardship must be compared uninfluenced by the consideration that there is suitable alternative accommodation for the business available in the son's shop. Thus this finding is also vitiated. In the result, the petition is allowed. Order dated 1-5-1978 of the appellate authority is quashed and the appellate authority (or any other officer to whom the District Judge may assign the case) is directed to dispose of the appeal afresh expeditiously as far as possible within three months from the receipt of this order. There shall be no order as to costs.


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