- (1.) SUDHIR Narain, J. The writ petition is directed against the order of the appel late authority dated 19-7-1986 allowing the appeal and dismissing the release ap plication filed by the landlord-petitioner.
(2.) THE landlord-petitioner filed an application for release of the disputed ac commodation against Respondent No. 2 in the year 1982 with the allegations that he is living in a tenanted accommodation and requires the disputed accommodation for his residential purposes. It was stated that the disputed property has come to his share after partition. THE father of Respondent No. 2, Sri Shyam Lal, was a tenant and after his death his other brothers were residing outside and Respondent No. 2 only opted to live in the house in question. The Respondent No. 2 contested the application and alleged that Shyam Laldied leaving behind him his other brothers who were also co-tenants but they have not been impleaded in the application and the need of the landlord is not bonafide and in case he is evicted, he would suffer a greater hardship. The Prescribed Authority al lowed the application holding that after the death of Shyam Lal, the respondent alone opted for tenancy. The other heirs of Shyam Lal surrendered the tenancy. The landlord was living in a tenanted house and his need was bonafide and genuine and in case the application is rejected, he would suffer a greater hardship. Respondent No. 2 preferred appeal against the said order. During the pendency of the appeal, he filed application to admit the additional evidence. He filed affidavit of Hari Prakash his brother, who stated that he was living with Ram Sewak, the tenant- respon dent and he was also a co-tenant. This additional evidence was accepted. The ap pellate Authority recorded a finding that the need of the landlord- petitioner was bonafide and genuine as he was living in a tenanted accommodation and on a com parative hardship, it was found that he would suffer a greater hardship in case the application is rejected. He, however, al lowed the appeal and rejected the release application on the ground that Hari Prakash, brother of respondent No. 2 was also a tenant. The operative portion of the order reads as under: "the appeal is allowed against the respon dent Dinesh Kumar and the judgment and release order dated 22-3-1986 are hereby set aside and the release application in Case No. 8 of 1982 stands dismissed on the technical ground alone that Hari Prakash was a co-tenant by inheritance and devolution and was not made a party with costs on the parties". Hari Prakash is alleged to have been living with tenant Ram Sewak Respondent No. 2. He cannot be said to have no knowledge of the proceedings in itiated against Respondent No. 2 under Section 21 (l) (a)of U. P. Act No. 13of 1972 (in short the Act ). He claimed himself to be living jointly with Respondent No. 2. Respondent No. 2 had filed objection con testing the version of the petitioner- landlord that his need is not bonafide and genuine. Both the authorities found that the landlord is living as a tenant and he has no other house except the house in ques tion. The status of Hari Prakash was only that of a joint tenant as held by the Supreme Court in H. C. Pandey v. G. C. Paul, AIR 1989 SC1470; Harish Tandon v. Additional District Magistrate, Allahabad and others, 1995 (25) ALR 184 (SC ). This Court also in Moharram Alt and another v. Prescribed Authority, Allahabad and others, 1998 (34) FLR 483, held that even if one of the co-tenants was not impleaded as a party, that will not affect the decision on merits in a proceeding under Section 21 (l) (a) of the Act when it was contested by the other joint tenants. In Gulab Chandra v. Munsif West, Allahabad and others, 1998 ALJ 852, where the plaintiffs filed suit for injunction restraining the defendant-landlord for obtaining posses sion on the allegation that she was co-tenant, but having not been impleaded as party in the suit, the decree passed in suit' was not binding on her. The Division Bench quashed the proceedings in the suit on the ground that it was collusive.
(3.) HARI Prakash, claiming himself as co-tenant filed affidavit before the appel late authority but he never alleged that his brother, Ram Sewak colluded with the landlord or he was prejudiced in the case, as he was not impleaded as party. The Prescribed Authority had already passed order of eviction against the tenant on the ground that need of the landlord was bona fide. He could not show that there was any error in the judgment or his brother has not properly contested the matter. In view of the above, the writ peti tion is allowed, the impugned order dated 19-7-1986 is hereby quashed and the order of the Prescribed Authority is maintained.;