IRSHAD ALI,J. - (1.) Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Mohd. Aslam Khan, learned counsel for the petitioner, learned Standing Counsel appearing for respondent no.1 and Sri M.A. Rizvi, Advocate holding brief of Sri S.K. Mehrotra, learned counsel for the respondent no.2.
(2.) By means of the present writ petition, the petitioner has prayed for the following reliefs: (i) That the judgment dated 4.9.2008 (Annexure no.7) passed by opposite party no.1 may kindly be set aside. (ii) That the cost of the petition be awarded to the petitioner against the opposite parties. (iii) That such other order or directions be passed which may appear to be just and proper under the facts and circumstances of the case.
(3.) Facts of the case are that the dispute pertains to a shop situated on the ground and first floor of House No.231 (Old No.215) in Mohalla Majorganj, Sultanpur City. The opposite party no.2 is tenant of a room on the ground floor and first floor on a monthly rent of Rs.51/-. It was the case of the petitioner in the application for release that in a suit for partition between him and Smt. Shanti Devi which was decided vide judgment dated 28.3.1986 by this Court, eastern half portion of House No.231 was allotted in his share, while western half portion was allotted to Smt. Shanti Devi, as a result whereof, eastern portion of House No.215 was renumbered as 231, while western portion as 230 in the Municipal Records. It was also stated that the opposite party no.2 owns and possesses two big houses i.e. House No.1273 situated in Mohalla Khairabad on Sultanpur-Allahabad Highway and House No.525 situated near Shahganj Crossing, Sultanpur City. The said house is three storied building in which there exists five shops on the ground floor which were let out by the opposite party no.2 on higher rent. The application for release of the shop in occupation of the opposite party no.2 was filed on the ground of bonafide need. The application was contested by the opposite party no.2 admitting the petitioner to be landlord and further, he is carrying on Sharrafa business since long and has four sons and five daughters who are engaged in the business. The petitioner in order to prove his bonafide need, filed affidavits of his witness, likewise the opposite party no.2. The petitioner thereupon filed rejoinder affidavit (Annexure No.4) and in paragraphs 6 and 7, he had given the details of the accommodations owned and possessed by the opposite party no.2. The petitioner had also filed large number of documents through list, copy of which has been annexed as Annexure No.5. The Prescribed Authority, on a consideration of entire facts and circumstances of the case as well as law applicable thereto, allowed the application holding that the need as set up by the petitioner for his married daughter, whose husband is unemployed and is unable to maintain his family, held that the application is maintainable in view of the law propounded by this Court in the case of Jagdish v. VIIth Additional District Judge, Sultanpur and others as well as 1998(1) ARC 288 (Smt. Kanti v. Additional District Judge and others) as the need as set up is bonafide and genuine. On a comparison of the respective hardship of the parties, it was held that it is the petitioner who would suffer great hardship than that of the opposite party no.2. The application was accordingly allowed vide judgment dated 31.5.2007 (Annexure No.6). The Prescribed Authority had also awarded two years ' rent at the rate of Rs.50/- per month and granted two months time to deliver the possession to the petitioner. Aggrieved by the aforesaid judgment, the opposite party no.2 filed an application under Section 22 of the Act before the District Judge which was numbered as RCA No.2 of 2007. The Appellate Court affirmed the findings of the Prescribed Authority after relying upon the judgment of the Apex Court that the application made by the petitioner for release of the premises for the need of daughter and son-in-law is maintainable and the Court cannot direct the landlord to get a particular premises released. It was further held that in so far as the petitioner is concerned, he had established his bonafide need to release the first floor but he could establish his bonafide need in respect to the shop situated on the ground floor. While comparing respective hardship of the parties, though it has been observed by the Appellate Court that no efforts have been made by the tenant to find out an accommodation, though proceedings are pending for the last seven years as has been held by this Court, hence he could not object the application for release of the premises made by the petitioner in view of the law laid down in the case of Jagdish Tiwari v. Smt. Asha Devi Mishra and others reported in 2005 ACJ 1250. After recording the aforesaid findings, the Appellate Authority partly allowed the appeal and passed an order of release in respect to first floor of the shop while rejecting the application for release of the shop situated on the ground floor vide judgment dated 4.9.2008. Being aggrieved by the aforesaid judgment dated 4.9.2008 passed by the Appellate Court, the landlord filed the above-noted petition. ;